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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.

it was just the other day that our brothers ranganath misra and m m dutt jj had to give directions in a case vincent panikurbangara v union of india where a public spirited litigant had complained about the unscrupulous exploitation of the indian drug and pharmaceutical market by multinational corporations by putting in circulation low quality and even deleterious drugs. in this group of cases we are faced with a different problem of alleged exploitation by big manufacturers of bulk drugs. the problem is that of high prices bearing it is said little relation to the cost of production to the manufacturers. by way of illustration we may straightaway mention a glaring instance of such high pricing which was brought to our notice at the very commencement of the hearing. barlagan ketone a bulk drug was not treated as an essential bulk drug under the drugs prices control. order 1970 and was not included in the schedule to that order. a manufacturer was under the provisions of that order free to continue to sell the drug at the price reported by him to the central government at the time of the commencement of the order but was under an obligation not to increase the price without the prior approval of the central government. the price which the manufacturer of barlagan kotone reported to the central government in 1971 was rs 24735 68 per kg. after the 1979 drugs prices control. order came into force the distinction between essential and non essential bulk drugs was abolished and a maximum price had to be fixed for barlagan ketone also like other bulk drugs. the manufacturer applied for fixation of price at rs 8500 per kg. the government however fixed the price at rs 1810 per kg. for the moment ignoring the price fixed by the government we see that the price of rs 24735 per kg. at which the manufacturer was previously selling the drug and at which he continues to market the drug to this day because of the quashing of the order fixing the price by the high court is so unconsciously high even compared with the price claimed by himself that it appears to justify the charge that some manufacturers do indulge in profiteering. profiteering by itself is evil. profiteering in the scarce resources of the community much needed life sustaining food stuffs and lifesaving drugs is diabolic. it is a menance which had to be lettered and curbed. one of the principal objectives of the essential commodities act 1955 is precisely that. t must be remembered that article 39b enjoins a duty on the state towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. the essential commodities act is a legislation towards that end. section 31 of the essential commodities act enables the central government if it is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price to provide for regulating or prohibiting by order the production supply and distribution thereof and trade and commerce therein. in particular section 32c enables the central government to make an order providing for controlling the price at which any essential commodity may be bought or sold. it is in pursuance of the powers granted to the central government by the essential commodities act that first the drugs prices control. order 1970 and later the drugs prices control. order 1979 were made. armed with authority under the drugs prices control. order 1979 the central government issued notifications fixing the maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers. these notifications were questioned on several grounds by the manufacturers and they have been quashed by the delhi high court on the ground of failure to observe the principles of natural justice. since prices of formulations are primarily dependent on prices of buli drugs the notifications fixing the retail prices of formulations were also quashed. the manufacturers had also filed review petitions before the government under paragraph 27 of the 1979 order. the review petitions could not survive after the notifications sought to be reviewed had themselves been quashed. nevertheless the high court gave detailed directions regarding the manner of disposal of the review petitions by the high court. the union of india has preferred these appeals by special leave of this court against the judgment of the high court. the case for the union of india was presented to us ably by shri g ramaswami the learned additional solicitor general and the manufacturers were represented equally ably by shri anil diwan. before we turn to the terms of the drugs prices control. order 1979 we would like to make certain general observations and explain the legal position in regard to them. we start with the observation price fixation is neither the function nor the forte of the court. we concern ourselves neither with the policy nor with the rates. but we do not totally deny ourselves the jurisdiction to enquire into the question in appropriate proceedings whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price. for example if the legislature has decreed the pricing policy and prescribed the factors which should guide the determination of the price we will if necessary enquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. but our examination will stop there. we will go no further. we will not deluge ourselves with more facts and figures. the assembling of the raw materials and the mechanics of price fixation are the concern of the executive and we leave it to them. and we will not revaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers. the court will of course examine if there is any hostile discrimination. that is a different cup of tea altogether. the second observation we wish to make is legislative action plenary or subordinate is not subject to rules of natural justice. in the case of parliamentary legislation the proposition is self evident. in the case of subordinate legislation it may happen that parliament may itself provide for a notice and for a hearing there are several instances of the legislature requiring the subordinate legislating authority to give public notice and a public hearing before say for example levying a municipal rate in which case the substantial non observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. the right here given to rate payers or others is in the nature of a concession which is not to detract from the character of the activity as legislative and not quasijudicial. but where the legislature has not chosen to provide for any notice or hearing no one can insist upon it and it will not be permissible to read natural justice into such legislative activity. occasionally the legislature directs the subordinate legislating body to make such enquiry as it thinks fit before making the subordinate legislation. in such a situation while such enquiry by the subordinate legislating body as it deems fit is a condition precedent to the subordinate legislation the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is not open to question on the ground that the enquiry was not as full as it might have been. the provision for such enquiry as it thinks fit is generally an enabling provision intended to facilitate the subordinate legislating body to obtain relevant information from all and whatever source and not intended to vest any right in any one other than the subordinate legislating body. it is the sort of enquiry which the legislature itself may cause to be made before legislating an enquiry which will not confer any right on anyone. the third observation we wish to make is price fixation is more in the nature of a legislative activity than any other. it is true that with the proliferation of delegated legislation there is a tendency for the line between legislation and administration to vanish into an illusion. administrative quasi judicial decisions tend to merge in legislative activity and conversely legislative activity tends to fade into and present an appearance of an administrative or quasi judicial activity. any attempt to draw a distinct line between legislative and administrative functions it has been said is difficult in theory and impossible in practice. though difficult it is necessary that the line must sometimes be drawn as different legal fights and consequences may ensue. the distinction between the two has usually been expressed as one between the general and the particular. a legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future administration is the process of performing particular acts of issuing particular orders or of making decisions which apply general rules to particular cases. it has also been said rule making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class while an adjudication on the other hand applies to specific individuals or situations. but this is only a bread distinction not necessarily always true. administration and administrative adjudication may also be of general application and there may be legislation of particular application only. that is not ruled out. again adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. adjudication is determinative of the past and the present while legislation is indicative of the future. the object of the rule the reach of its application the rights and obligations arising out of it its intended effect on past present and future events its form the manner of its promulgation are some factors which may help in drawing the line between legislative and non legislative acts. a price fixation measure does not concern itself with the interests of an individual manufacturer or producer. it is generally in relation to a particular commodity or class of commodities or transactions. it is a direction of a general character not directed against a particular situation. it is intended to operate in the future. it is conceived in the interests of the general consumer public. the right of the citizen to obtain essential articles at fair prices and the duty of the state to so provide them are transformed into the power of the state to fix prices and the obligation of the producer to charge n6 more than the price fixed. viewed from whatever angle the angle of general application the prospectivity of its effect the public interest served and the rights and obligations flowing therefrom there can be no question that price fixation is ordinarily a legislative activity. pricefixation may occasionally assume an administrative or quasi judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. such situations may arise when the owner of property or goods is compelled to sell his property or goods to the government or its nominee and the price to be paid is directed by the legislature to be determined according to the statutory guidelines laid down by it. in such situations the determination of price may acquire aquasi judicial character. otherwise price fixation is generally a legislative activity. we also wish to clear a misapprehension which appears to prevail in certain circles that price fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price fixation. we do not agree with the basic premise that price fixation primarily affects manufacturers and producers. those who are most vitally affected are the consumer public. it is for their protection that price fixation is resorted to and any increase in price affects them as seriously as any decrease does a manufacturer if not more. the three observations made by us are well settled and wellfounded on authority. the cases to which we shall now refer will perhaps elucidate what we have tried unfelicitously to express. in shree meenakshi mills ltd v union of india 1974. 1 scc 468 1973 indlaw sc 291 a notification fixing the ex factory price of certain counts of cotton yarn was questioned on the ground that the price had been arbitrarily fixed. after referring to hari shanker bagla v state of madhya pradesh 1955 1 scr 380 1954 indlaw sc 135 union of india v bhanamal gulzarimal 1960 2 scr 627 1959 indlaw sc 127 sri krishna rice mills v joint director food 1965 indlaw sc 93 unreported state of rajasthan v nathmal and mithamal 1954 scr 982 1954 indlaw sc 66 narendra kumar v union of india 1960 2 scr 375 1959 indlaw sc 61 panipat co operative sugar mills v union of india 1973 1 scc 129 1972 indlaw sc 155 anakapalle co operative agricultural industrial society ltd v union of india. 1973 3 scc 435 1972 indlaw sc 334 and premier automobiles ltd v union of india 1972. 2 scr 526 1971 indlaw sc 291 a constitution bench of the court observed that the dominant object and the purpose of the legislation was the equitable distribution and availability of commodities at fair price and if profit and the producer 's return were to be kept in the forefront it would result in losing sight of the object and the purpose of the legislation. if the prices of yarn or cloth were fixed in such a way to enable the manufacturer or producer recover his cost of production and secure a reasonable margin of profit no aspect of infringement of any fundamental right could be said to arise. it was to be remembered that the mere fact that some of those were engaged in the industry trade or commerce allegedthat they were incurring loss would not render the law stipulating the price unreasonable. it was observed the control of prices may have effect either on maintaining or increasing supply of commodity or securing equitable distribution and availability at fair prices. the controlled price has to retain this equilibrium in the supply and demand of the commodity. the cost of production a reasonable return to the producer of the commodity are to be taken into account. the producer must have an incentive to produce. the fair price must be fair not only from the point of view of the consumer but also from the point of view of the producer. in fixing the prices a price line has to be held in order to give preference or pre dominant consideration to the interest of the consumer or the general public over that of the producers in respect of essential commodities. the aspect of ensuring availability of the essential commodities to the consumer equitably and at fair price is the most important consideration. the producer should not be driven out of his producing business. he may have to bear loss in the same way as he does when he suffers losses on account of economic forces operating in the business. if an essential commodity is in short supply or there is hoarding concerning or there is unusual demand there is abnormal increase in price. if price increases it becomes injurious to the consumer. there is no justification that the producer should be given the benefit of price increase attributable to hoarding or cornering or artificial short supply. in such a case if an escalation in price is contemplated at intervals the object of controlled price may be stultified. the controlled price will enable both the consumer and the producer to tide over difficulties. therefore any restriction in excess of what would be necessary in the interest of general public or to remedy the evil has to be very carefully considered so that the producer does not perish and the consumer is not crippled. the cases of panipat sugar mills and anakapalle co operative agricultural society were distinguished on the ground that they were governed by sub section 3c of sec. 3 of the essential commodities act and therefore had no relevance to the case before the constitution bench. the case of premier automobiles was distinguished on the ground that the decision was rendered by invitation and on the agreement of the parties irrespective of technical and legal questions. the court quoted with approval a passage from secretary of agriculture v central reig refining company 330 us 604 stating suffice it to say that since congress fixed the quotas on a historical basis it is not for this court to reweigh the relevant factors and per chance substitute its notion of expediency and fairness for that of congress. this is so even though the quota thus fixed may demonstrably be disadvantageous to certain areas or persons. this court is not a tribunal for relief from the crudities and inequities of complicated experimental economic legislation. in saraswati industrial syndicate ltd v union of india 1974 2 scc 630 1974 indlaw sc 134 the court observed price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. it could not therefore give rise to a complaint that a rule of natural justice has not been followed in fixing the price. nevertheless the criterion adopted must be reasonable. reasonableness for purposes of judging whether there was an excess of power or an arbitrary exercise of it is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. it was also reiterated that the decision in shree meenakshi mills case was based on a special agreement between the parties and therefore had no relevance to the question before them. in prag ice oil mills v union of india 1978 3 scc 459 1978 indlaw sc 472 a constitution bench of seven judges of this court had to consider the validity of the mustard oil price control. order 1977 an order made in exercise of the powers conferred upon central government by the essential commodities act. chandrachud j speaking for the court approved the observation of beg cj. in saraswati industrial syndicate. that it was enough compliance with the constitutional mandate if the basis adopted for price fixation was not shown to be so patently unreasonable as to be in excess of the power to fix the price. he observed in the ultimate analysis the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostiled discrimination against a class of operators the processual basis of price fixation has to be accepted in the generality of cases as valid. referring to shri meenakshi mills the learned cj reaffirmed the approval accorded to the statement in secretary of agriculture v central reig refining company supra that courts of law could not be converted into tribunals for relief from the crudities and inequities of complicated experimental economic legislation. panipat sugar and anakappalle society were again referred to and it was pointed out that those cases turned on the language of section 33c of the essential commodities act. premier automobiles was considered and it was affirmed that the judgment in that case could not be treated as precedent and could not afford any appreciable assistance in the decision of price fixation cases as it proceeded partly on agreement between the parties and partly on concessions made at the bar. beg cj. who delivered a separate opinion for himself and for desai j agreed that the judgment in premier automobiles was not to provide a precedent in price fixation case. he also reaffirmed the proposition that price fixation was in the nature of a legislative measure and could not give rise to a complaint that natural justice was not observed. he indicated the indicia which led him to the conclusion that price fixation was a legislative measure. he observed we think that unless by the terms of a particular statute or order price fixation is made a quasi judicial function for specified purposes or cases it is really legislative in character in the type of control order which is now before us because it satisfies the tests of legislation. a legislative measure does not concern itself with the facts of an individual case. it is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. in the case before us the control order applies to sales of mustard oil anywhere in india by any dealer. its validity does not depend on the observance of any procedure to be complied with or particular types of evidence to be taken on any specified matters as conditions precedent to its validity. the test of validity is constituted by the nexus shown between the order passed and the purposes for which it can be passed or in other words by reasonableness judged by possible or probable consequences. in new india sugar works v state of uttar pradesh 1981 2 scc 293 1981 indlaw sc 217 there was an indication though it was not expressly so stated that the question of observing natural justice did not arise in cases of price fixation. in laxmi khandsari v state of uttar pradesh 1981 2 scc 600 1981 indlaw sc 558 it was held that the sugar cane control order 1966 was a legislative measure and therefore rules of natural justice were not attracted. in rameshchandra kachardas porwal v state of maharashtra 1981 2 scc 722 1981 indlaw sc 423 it was observed that legislative activity did not invite natural justice and that making of a declaration that a certain place shall be a principal market yard for a market area under the relevant agricultural produce markets acts was an act legislative in character. the observation of magarry j in bates v lord hailsha of st marylebone 1972. 1 wlr 1973 that the rules of natural justice do not run in the sphere of legislation primary or delegated was cited with approval and two well known text books writers paul kackson and wades h w r were also quoted. the former had said there is no doubt that a minister or any other body in making legislation for example by statutory instrument or by law is not subject to the rules of natural justice bates v lord hailsham of st marylebone supra any more than is parliament itself edinburgh and dalkeith rv v wauchope per lord brougham 1842 8 cl f 700 720 british railways board v pickin 1974 1. all er 609. the latter had said there is no right to be heard before the making of legislation whether primary or delegated unless it is provided by statutes. in sarkari sasta anaj vikreta sangh v state of madhya pradesh 1981 4 scc 471 1981 indlaw sc 607 it was pointed out that the amendment of the madhya pradesh food stuffs distribution control order was a legislative function and there was therefore no question of affording an opportunity to those who were to be affected by it. in welcom hotel v state of andhra pradesh 1983 4 scc 575 1983 indlaw sc 128 the observations of chandrachud cj. in prag ice and oil mills were quoted with approval in connection with the fixation of prices of food stuffs served in restaurants. in tharoe mal v puranchand 1978 1 scc 102 1977 indlaw sc 122 one of the questions was regarding the nature of the hearing to be given before imposing municipal taxes under the uttar pradesh municipalities act 1916. it was held. the procedure for the imposition of the tax is legislative and not quasijudicial. the right to object however seems to be given at the stage of proposals of the tax only as a concession to requirements of fairness even though the procedure is legislative and not quasi judicial. we mentioned that the panipat and the anakapalle eases were distinguished in shree meenakshi and prag ice. panipat and anakapalle were both cases where the question was regarding the price payable to a person who was required to sell to the government a certain percentage of the quantity of sugar produced in his mill. the order requiring him to sell the sugar to the government was made under section 32f of the essential commodities act under which the central government was enabled to make an order requiring any person engaged in the production of any essential commodity to sell the whole or specified part of the quantity produced by him to the government or its nominee. it will straight away be seen that an order under section 32f if a specific order directed to a particular individual for the purpose of enabling the central government to purchase a certain quantity of the commodity from the person holding it. it is an order for a compulsory sale. when such a compulsory sale is required to be made under section 32f the question naturally arises what is the price to be paid for the commodity purchased. section 33c provides for the ascertainment of the price. it provides that in calculating the amount to be paid for the commodity required to be sold regard is to be had to a the minimum price if any fixed for sugarcane by the central government under this section b the manufacturing cost of sugar c the duty or tax if any paid or payable thereon and d the securing of a reasonable return on the capital employed in the business of manufacturing sugar. it is further prescribed that different prices may be determined from time to time for different areas or for different factories or for different kinds of sugar. it is to be noticed here that the payment to be made under section 33c is not necessarily the same as the controlled price which may be fixed under section 32c of the act. section 32c of the act we have already seen enables the central government to make an order controlling the price at which any essential commodity may be bought or sold if the central government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or in securing their equitable distribution and availability at fair prices. section 33c provides for the determination of the price to be paid to a person who has been directed by the central government by an order made under section 32c to sell a certain quantity of an essential commodity to the government or its nominee. while section 32c contemplates an order of a general nature section 33c contemplates a specific transaction. if the provisions of section 32c under which the price of an essential commodity may be controlled are contrasted with section 33c under which payment is to be made for a commodity require to be sold by an individual to the government the distinction between a legislative act and a non legislative act will at once become clear. the order made under section 32c which is not in respect of a single transaction nor directed to particular individual is clearly a legislative act while an order made under section 33c which is in respect of a particular transaction of compulsory sale from a specific individual is a non legislative act. the order made under section 32c controlling the price of an essential commodity may itself prescribe the manner in which price is to be fixed but that will not make the fixation of price a non legislative activity when the activity is not directed towards a single individual or transaction but is of a general nature covering all individuals and all transactions. the legislative character of the activity is not shed and an administrative or quasi judicial character acquired merely because guidelines prescribed by the statutory order have to be taken into account. we may refer at this juncture to some illuminating passages from schwrtz 's book on administrative law. he said if a particular function is termed legislative or rulemaking rather than judicial or adjudication it may have substantial effects upon the parties concerned. if the function is treated as legislative in nature there is no right to notice and hearing unless a statute expressly requires them. if a hearing is held in accordance with a statutory requirement it normally need not be a formal one governed by the requirements discussed in chapters 6 and 7. the characterization of an administrative act as legislative instead of judicial is thus of great significance. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x as a federal court has recently pointed out there is no bright line between rule making and adjudication. the most famous pre apa attempt to explain the difference between legislative and judicial functions was made by justice holmes in prentis v atlantic coast line co a judicial inquiry said he investigates declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. that is its purpose and end. legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. the key factor in the holmes analysis is time a rule prescribes future patterns of conduct a decision determines liabilities upon the basis of present or past facts. the element of applicability has been emphasized by others as the key in differentiating legislative from judicial functions. according to chief justice burger rulemaking is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class. an adjudication on the other hand applies to specific individuals or situations. rulemaking affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely affected adjudication operates conceretly upon individuals in their individual x x capacity. we may now turn our attention to the two drugs prices control order of 1970 and 1979 both of which were made by the central government in exercise of its powers under section 3 of the essential commodities act. the drugs prices control order 1970 defined bulk drugs as follows bulk drugs means any unprecessed phamaceutical chemical biological and plant product or medicinal gas conforming to pharmacopocial or other standards accepted which is used as such or after being processed into formulations and includes an essential bulk drug. bulk drugs were divided into essential bulk drugs which were included in the schedule and bulk drugs which were not so included. in the case of essential bulk drugs paragraph 4 of the order enabled the central government to fix the maximum price at which such essential bulk drugs should be sold. in the case of bulk drugs which were not included in the schedule a manufacturer was entitled to continue to market the product at the same price at which he was marketing the products at the time of the commencement of the order. he was required to report this price to the central government within two weeks of the commencement of the order and was further prohibited from increasing the price without obtaining the approval of the central government. a committee on drugs and pharmaceutical industry popularly known as the hathi committee was appointed by the government of india to enquire into the various facets of the drug industry in india. one of the terms of reference was to examine the measures taken so far to reduce prices of drugs for the consumer and to recommend such further measures as may be necessary to rationalise the prices of basic drugs and formulations. the hathi committee noticed that in a country like india where general poverty and the wide disparities in levels of income between different sections existed it was particularly important to emphasise the social utility of the industry and the urgent need for extending as rapidly as possible certain minimum facilities in terms of preventive and curative medicines to the large mass of people both urban and rural. it was said the concern about drug prices therefore really arises from the fact that many of them are essential to the health and welfare of the community and that there is no justification for the drug industry charging prices and having a production pattern which is based not upon the needs of the community but on aggressive marketing tactices and created demand. the government of india accepted the report of the hathi committee and announced in parliament the statement on drug policy pursuant to which the drugs prices control order 1970 was repealed and the drugs prices control. order 1979 was made. paragraph 44 of the statement on drug policy in 1978 dealt with pricing policy and it may be usefully extracted here. it was as follows. the hathi committee had recommended that a return post tax between 12 to 14 on equity that is paid up capital plus reserves may be adopted as the basis for price fixation depending on the importance and complexity of the bulk drug. in the case of formulations the hathi committee felt that the principle of selectivity could be introduced in terms of a the size of the units b selection of items and c controlling the prices only of market leaders in particular of products for which price control is contemplated. the hathi committee considered that units other than mrtp units having only turnover of less than rs 1 crore may be exempted from price control. alternatively all formulations other than those marketed under generic names which have an annual sale in the country in excess of rs 15 lakhs inclusive of excise duty may be subjected to price control irrespective of whether or not the total annual turnover of the unit is in excess of rs 1 crore. the ceiling price will be determined taking into account the production costs and a reasonable return for the units which are the market leaders. yet another variant of a selectivity according to the hathi committee would be to identify product groups which individually are important and which collectively constitute the bulk of the output of the industry. in respect of each item of this list it would be possible to identify the leading producers who account for about 60 of the sales between them. on the basis of cost analysis in respect of those units maximum prices may be prescribed and all other units may be free to fix their prices within this ceiling. on balance the hathi committee was of the view that this particular variant selectivity may be administratively simpler. the drugs prices control order 1979 was made pursuant to this statement of policy. paragraph 2a of the drugs. prices control. order 1979 defines bulk drug to mean any substance including pharmaceutical chemical biological or plant product or medicinal gas conforming to pharmacological or other standards accepted under the drugs and cosmetics act 1940 which is used as such or as in ingredient in any formulations. formulation is defined as follows formulation means a medicine processed out of or containing one or more bulk drugs or drugs with or without the use of any pharmaceutical aids for internal or external use for or in the diagnosis treatment mitigation or prevention of disease in human beings or animals but shall not include i any bona fide ayurvedic including sidha or unani tibb systems of medicine ii any medicine included in the homoeopathic system of medicine 865 iii any substance to which the provisions of the drugs and cosmetics act 1940 xxiii of 1940 do not apply. the expressions free reserve leader price net worth now bulk drug pooled price pre tax return retention price are defined in the following manner free reserve means a reserve created by appropriation of profits but does not include reserves provided for contingent liability disputed claims goodwill revaluation and other similar reserves. leader price means a price fixed by the government for formulations specified in category i category ii or category iii of the third schedule in accordance with the provisions of paras. 10 and 11 keeping in view the cost of or efficiency or both of major manufacturers of such formulations. net worth means the share capital of a company plus free reserve if any. new bulk drug means a bulk drug manufactured within the country for the first time after the commencement of this order. pooled price in relation to a bulk drug means the price fixed under para 7. pre tax return means profits before payment of incometax and sur tax and includes such other expenses as do not form part of the cost of formulations. retention price in relation to a bulk drug means the price fixed under paras 4 and 7 for individual manufacturers or importers or distributors or such bulk drugs. the distinction between an essential bulk drug included in the schedule and a bulk drug not so included in the schedule which was made in 1970 drugs prices control. order was abandoned in the 1979 order. bulk drugs were however broadly divided into indigenously manufactured bulk drugs imported bulk drugs and hulk drugs which were both manufactured indigenously as also imported. paragraph 3 of the 1979 order enables the government with a view to regulating the equitable distribution of any indigenously manufactured bulk drug specified in the first or the second schedule and making it available at a fair price and after making such enquiry as it deems fit to fix from time to time by notification in the official gazette the maximum price at which the bulk drug shall be sold. cl 2 of paragraph 3 provides that while so fixing the price of a bulk drug the government may take into account the average cost of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on net worth. by way of an explanation efficient manufacturer is defined to mean a manufacturer i. whose production of such bulk drug in relation to the total production of such bulk drug in the country is large or ii who employs efficient technology in the production of such bulk drug. we have already noticed that net worth is defined to mean the share capital of a company plus free reserve if any. free reserve itself is separately defined. it is then prescribed by clause 3 no person shall sell a bulk drug at a price exceeding the price notified under sub paragraph 1 plus local taxes if any payable provided that until the price of bulk drug is so notified the price of such bulk drug shall be the price which prevailed immediately before the commencement of this order and the manufacture of such bulk drug at a price exceeding the price which prevailed as aforesaid. this means that until the maximum sale price of an indigenously manufactured bulk drug is fixed under paragraph 3 of the 1979 order the price fixed under paragraph 4 of the 1970 order or the price permitted under paragraph 5 of the 1970 order was to be maximum sale price. paragraph 34a requires a manufacturer commencing production of the bulk drug specified in the first or second schedule the price of which has already been notified by the government not to sell the bulk drug at a price exceeding the notified price. paragraph 34b provides that where the price of a bulk drug has not been notified by the government the manufacturer shall within 14 days of the commencement of the the production of such bulk drug make an application to the government in form i and intimate the government the price at which he intends to sell the bulk drug and the government may after making such an enquiry as it thinks fit by order fix a provisional price at which such bulk drug shall be sold. paragraph 4 of the 1979 order provides that notwithstanding anything contained in paragraph 3 the government may if it considers necessary or expedient so to do for increasing the production of an indigenously manufactured bulk drug specified in the first or second schedule by order fix a a retention price of such bulk drug b a common sale price for such bulk drug taking into account the weighted average of the retention price fixed under clause. paragraph 4 is thus in the nature of an exception to paragraph 3. it is meant to provide a fillip to individual manufacturers of bulk drugs whose production it is necessary to increase. retention price by its very definition pertains to individual manufacturers. common sale price we take it is the price at which manufacturers whose retentions are fixed may sell the bulk drug despite the maximum sale price fixed under paragraph 3. paragraph 5 deals with the power of the government to fix maximum sale price of new bulk drugs. paragraph 6 enables the government to fix the maximum sale price of imported bulk drugs specified in first and second schedules. paragraph 7 deals with the power of the government to fix retention price and pooled price for the sale of bulk drugs specified in the first and second schedules which are both indigenously manufactured and imported. paragraph 9 empowers the government to direct manufacturers of bulk drugs to sell bulk drugs to manufacturers of formulations. paragraph 10 prescribes a formula for calculating the retail price of formulations. the formula is r p m c c c p m p c x 1mu e d 100 r p means retail price. m c means material cost and includes the cost of drugs and other pharmaceutical aids used including overages if any and process loss thereon in accordance with such norms as may be specified by the government from time to time by notification in the official gazette in this behalf. c c means conversion cost worked out in accordance with such norms as may be specified by the government from time to time by notification in the official gazettee in this behalf. p m means the cost of packing material including process loss thereon worked out in accordance with such norms as may be specified by the government from time to time by notifi cation in the official gazette in this behalf. p c means packing charges worked out in accordance with such norms as may be specified by the government from time to time by notification in the official gazette in this behalf. m u means make up referred to in para. e d means excise duty. paragraph 11 explains what mark up means. paragraph 12 empowers the government to fix leader prices of formulations of categories. i and ii specified in the third schedule. paragraph 13 empowers the government to fix retail price of formulations specified in category iii of third schedule. paragraph 14 contains some general provisions regardingprices of formulations. paragraph 15 empowers the government to revise prices of formulations. paragraph 16 provides that where any manufacturer importer or distributor of any bulk drug or formulation fails to furnish information as required under the order within the time specified therein the government may on the basis of such information as may be available with it by order fix a price in respect of such bulk drug or formulation as the case may be. paragraph 17 requires the government to maintain the drugs prices equalization account to which shall be credited by the manufacturer among other items the excess of the common selling price or as the case may be pooled price over his retention price. it is provided that the amount credited to the drugs prices equalization account shall be spent for paying to the manufacturer the shortfall between his retention price and the common selling price or as the case may be the pooled price. paragraph 27 enables any person aggrieved by any notification or order under paragraphs 3 4 5 6 7 9 12 13 14 15 or 16 to apply to the government for a review of the notification or order within fifteen days of the date of the publication of the notification in the official gazette or as the case may be the receipt of the order by him. bulk drugs constituting categories. i and ii are enumerated in the first schedule. bulk drugs constituting category iii are enumerated in the second schedule. formulations constituting categories i ii and iii are enumerated in the third schedule. the fourth schedule prescribes the various forms referred to in the different paragraphs of the drugs prices control order. form No 1 which is referred to in paragraphs 34 5 and 81 is titled form of application for fixation or revision of prices of bulk drug. the several columns of the form provide for various particulars to be furnished and item 18 requires the applicant to furnish the cost of production of the bulk drug as per proforma attached duly certified by a practising cost chartered accountant. the proforma requires particulars of costdata such as raw materials utilities conversion cost total cost of production interest on borrowings minimum bonus packing selling expenses transport charges transit insurance charges total cost of sales selling price existing price or notional or declared prices etc. to be furnished. a note at the end of the proforma requires the exclusion from cost certain items of expenses such as bonus in excess of statutory minimum bad debts and provisions donations and charities loss gain on sale of assets brokerage and commission expenses not recognised by income tax authorities and adjustments relating to previous years. shri g ramaswamy learned additional solicitor general on behalf of the union of india submitted that the fixation of maximum price under paragraph 3 of the drugs prices control. order was a legislative activity and therefore not subject to any principle of natural justice. he urged that relevant information was required to be furnished and was indeed furnished by all the manufacturers in the prescribed form as required by paragraph 34 of the drugs prices control order. this information obtained from the various manufacturers was taken into account and a report was then obtained from the bureau of industrial costs and prices a high powered expert body specially constituted to undertake the study of industrial cost structures and pricing problems and to advise the government. it was only thereafter that notifications fixing the prices were issued. he further submitted that paragraph 27 of the central order gave a remedy to the manufacturers to seek a review of the order fixing the maximum price under paragraph 3. the review contemplated by paragraph 27 in so far as it related to the notification under paragraph 3 it was submitted by the learned additional solicitor general did not partake the character of a judicial or quasi judicial proceeding. he urged that the manufacturers had invoked the remedy by way of review but before the applications for review could be dealt with they rushed to the court with the writ petitions out of which the appeal and the special leave petitions arise. he urged that the government had always been ready and wilting to give a proper hearing to the parties and in fact gave them a heating in connection with their review applications. the grievance of the manufacturers in the writ petitions that they were not furnished the details of the basis of the price fixation was not correct since full information was furnished at the time of the hearing of the review applications when the matter underwent thorough and detailed discussion between the parties and the government as well as the bureau of industrial costs and prices. the submission of shri anil diwan learned counsel for the respondents was that unlike other price control legislations the drugs prices control order was designed to induce better production by providing for a fair return to the manufacturer. reference was made to the hathi committee report which had recommended a return of 12 to 14 post tax return on equity that is paid up capital plus reserves and the statement on drug policy which mentioned that ceiling prices may be determined by taking into account production costs and a reasonable return. great emphasis was laid on the second clause of paragraph 3 of the 1979 order which provides that in fixing the price of a bulk drug the government may take into account the average cost of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on networth. it was submitted that the provision for an enquiry preceding the determination of the price of a bulk drug the prescription in paragraph 3 cl 2 that the average cost of production of the drug manufactured by an efficient manufacturer should be taken into account and that a reasonable return on networth should be allowed and the provision for a review of the order determining the price established that price fixation under the drugs prices control. order 2979 was a quasijudicial activity obliging the observance of the rules of natural justice. the suggestion of the learned counsel was that the nature of the review under paragraph 27 was so apparently quasi judicial and that the need to know the reasons for the order sought to be reviewed was so real if the manufacturer was effectively to exercise his right to seek the quasijudicial remedy of review that by necessary implication it became obvious that the order fixing the maximum price must be considered to be quasijudicial and not legislative in character. the provision for enquiry in the first clause of paragraph 3 and the prescription of the matters to be taken into account in the second clause of paragraph 3 further strengthened the implication according to the learned counsel. it was contended that in any case whatever be the nature of the enquiry and the order contemplated by paragraph 3 the review for which provision made by paragraph 27 was certainly of a quasijudicial character and therefore it was necessary that the manufacturers should be informed of the basis for the fixation of the price and furnished with details of the same in order that they may truly and effectively avail themselves of the remedy of review. if that was not done the remedy would become illusory. it was argued with reference to various facts and figures that the price had been fixed in an arbitrary manner and the government was not willing to disclose the basis on which the prices were fixed on the pretext that it may involve disclosure of matters of confidential nature. it was stated that the applications of the manufacturers for review of the notifications fixing the prices had not been disposed of for years though time was really of the very essence of the matter. the prices of formulations were dependent on the prices of drugs and it was not right that prices of formulations should have been fixed even before the applications for review against the notifications fixing the price of bulk drugs were disposed of. it was suggested that the delay in disposing of the review applications had the effect of rendering the original notifications fixing the prices unreal and out of date and liable to be struck down on that ground alone. we are unable to agree with the submissions of the learned counsel for the respondents either with regard to the applicability of the principles of natural justice or with regard to the nature and the scope of the enquiry and review contemplated by paragraphs 3 and 27 while making our preliminary observations we pointed out that price fixation is essentially a legislative activity though in rare circumstances as in the case of a compulsory sale to the government or its nominee it may assume the character of an administrative or quasijudicial activity. nothing in the scheme of the drugs prices control. order induces us to hold that price fixation under the drugs prices control. order is not a legislative activity but a quasi judicial activity which would attract the observance of the principles of natural justice. nor is there anything in the scheme or the provisions of the drugs prices control order which otherwise contemplates the observance of any principle of natural justice or kindred rule the non observance of which would give rise to a cause of action to a suitor. what the order does contemplate however is such enquiry by the government as it thinks fit. a provision for such enquiry as it thinks fit by a subordinate legislating body we have explained earlier is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in any body other than the subordinate legislating body. in the present case the enquiry contemplated by paragraph 3 of drugs prices control. order is to be made for the purposes of fixing the maximum price at which a bulk drug may be sold with a view to regulating its equitable distribution and making it available at a fair price. the primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate consumer an object designed to fulfil the mandate of article 39b of the constitution. it is primarily from the consumer public 's point of view that the government is expected to make its enquiry. the need of the consumer public is to be ascertained and making the drug available to them at a fair price is what it is all about. the enquiry is to be made from that angle and directed towards that end. so information may be gathered from whatever source considered desirable by the government. the enquiry obviously is not to be confined to obtaining information from the manufacturers only and indeed must go beyond. however the interests of the manufacturers are not to be ignored. in fixing the price of a bulk drug the government is expressly required by the order to take into account the average cost of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on net worth. for this purpose too the government may gather information from any source including the manufacturers. here again the enquiry by the government need not be restricted to an efficient manufacturer or some manufacturers nor need it be extended to all manufacturers. what is necessary is that the average cost of production by an efficient manufacturer must be ascertained and a reasonable return allowed on net worth. such enquiry as it thinks fit is an enquiry in which information is sought from whatever source considered necessary by the enquiring body and is different from an enquiry in which an opportunity is required to be given to persons likely to be affected. the former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi judicial decision. the enquiry contemplated by paragraph 3 of the drug prices control. order is an enquiry of the former character. the legislative activity being a subordinate or delegated legislative activity it must necessarily comply with the statutory conditions if any no more and no less and no implications of natural justice can be read into it unless it is a statutory condition. notwithstanding that the price fixation is a legislative activity the subordinate legislation had taken care here to provide for a review. the review provided by paragraph 27 of the order is akin to a post decisional hearing which is sometimes afforded after the making of some administrative orders but not truly so. it is a curious amalgam of a hearing which occasionally precedes a subordinate legislative activity such as the fixing of municipal rates etc. that we mentioned earlier and a post decision hearing after the making of an administrative or quasi judicial order. it is a hearing which follows a subordinate legislative activity intended to provide an opportunity to affected persons such as the manufacturers the industry and the consumer public to bring to the notice of the subordinate legislating body the difficulties or problems experienced or likely to be experienced by them consequent on the price fixation whereupon the government may make appropriate orders. any decision taken by the government can not be confined to the individual manufacturer seeking review but must necessarily affect all manufacturers of the bulk drug as well as the consumer public. since the maximum price of a bulk drug is required by paragraph 3 to be notified any fresh decision taken in the proceeding for review by way of modification of the maximum price has to be made by a fresh notification fixing the new maximum price of the bulk drug. in other words the review if it is fruitful must result in fresh subordinate legislative activity. the true nature of the review provided by paragraph 27 in so far as it relates to the fixation of maximum price of bulk drugs under paragraph 3 leader price and prices of formulations under paragraphs 12 and 13 is hard to define. it is difficult to give it a label and to fit it into a pigeon hole legislative administrative or quasi judicial. nor is it desirable to seek analogies and look to distant cousins for guidance. from the scheme of the control order and the context and content of paragraph 27 the review in so far as it concerns the orders under paragraph 3 12 and 13 appears to be in the nature of a legislative review of legislation or more precisely a review of subordinate legislation by a subordinate legislating body at the instance of an aggrieved person. once we have ascertained the nature and character of the review the further question regarding the scope and extent of the review is not very difficult to answer. the reviewing authority has the fullest freedom and discretion to prescribe its own procedure and consider the matter brought before it so long as it does not travel beyond the parameters prescribed by paragraph 3 in the case of a review against an order under paragraph 3 and the respective other paragraphs in the case of other orders. but whatever procedure is adopted it must be a procedure tuned to the situation. manufacturers of any bulk drug are either one or a few in number and generally they may be presumed to be well informed persons well able to take care of themselves who have the assistance of accountants advocates and experts to advise and espouse their cause. in the context of the drug industry with which we are concerned and in regard to which the control order is made we must proceed on the basis that the manufacturers of bulk drugs are generally persons who know all that is to be known about the price fixed by the government. from the legislative nature of the activity of the government it is clear that the government is under no obligation to make any disclosure of any information received and considered by it in making the order but in order to render effective the right to seek a review given to an aggrieved person we think that the government if so requested by the aggrieved manufacturer is under an obligation to disclose any relevant information which may reasonably be disclosed pertaining to the average cost of production of the bulk drug manufactured by an efficient manufacturer and the reasonable return on net worth. for example the manufacturer may require the government to give information regarding the particulars detailed in form No 1 of the fourth schedule which have been taken into account and those which have been excluded. the manufacturer may also require to be informed the elements which were taken into account and those which were excluded in assessing the free reserves entering into the calculation of net worth. these particulars which he may seek from the government are mentioned by us only by way of illustration. he may seek any other relevant information which the government shall not unreasonably deny. that we think is the nature and scope of the review contemplated by paragraph 27 in relation to orders made under paragraphs 3 12 and 13. on the question of the scope of a review the learned counsel for the respondents invited our attention to vrajlal manilal co v union of india anr 1964 7 scr 97 1964 indlaw sc 194 shivaji nathubhai v union of india ors 1960 2 scr 775 1960 indlaw sc 430 maneka gandhi 1978 2 scr 621 1978 indlaw sc 212 swadeshi cotton mills 1981 2 scr 533 1981 indlaw sc 349 and liberty oil mills. 1984 3 scr 676 1984 indlaw sc 326. we are afraid none of these cases is of any assistance to the correspondence since the court was not concerned in any of those cases with a review of subordinate legislation by the subordinate legislating body. in vrajlal manilal co v union of india anr 1964 indlaw sc 194 supra the court held that the union of india when disposing of an application for review under rule 59 of the mines concession rules functioned as a quasi judicial authority and was bound to observe the principles of natural justice. the decision rendered without disclosing the report of the state government and without affording reasonable opportunity to the appellants to present their case was contrary to natural justice was therefore void. in shivaii nathubhai v union of india ors 1960 indlaw sc 430 supra it was decided by the court that the power of review granted to the central government under rule 54 of the mineral concession rules required the authority to act judicially and its decision would be a quasi judicial act and the fact that rule 54 gave power to the central government to pass such order as it may deem just and proper did not negative the duty to act judicially. in maneka gandhi 's case where bhagwati j while expounding on natural justice pointed out that in appropriate cases where a pre decisional hearing was impossible there must atleast be a post decisional hearing so as to meet the requirement of the rule audi alteram partem. in swadeshi cotton mills it was observed that in cases where owing to the compulsion of the fact situation or the necessity of taking speedy action no pre decisional hearing is given but the action is followed soon by a full post decisional hearing to the person affected there is in reality no exclusion of the audi alteram partem rule. it is no adaptation of the rule to meet the situational urgency. in liberty oil mills v union of india 1984 indlaw sc 326 supra the question arose whether clause 8b of the import control order which empowered the central government or the chief controller to keep in abeyance applications for licences or allotment of imported goods where any investigation is pending into an imported goods where any investigation is pending into an allegation mentioned in cl. 8 excluded the application of the principles of natural justice. the court pointed out that it would be impermissible to interpret a statutory instrument to exclude natural justice unless the language of the instrument left no option to the court. as we said these cases have no application to a review of subordinate legislation by the subordinate legislating body at the instance of a party. we mentioned that the price fixed by the government may be questioned on the ground that the considerations stipulated by the order as relevant were not taken into account. it may also be questioned on any ground on which a subordinate legislation may be questioned such as being contrary to constitutional or other statutory provisions. it may be questioned on the ground of a denial of the right guaranteed by article 14 if it is arbitrary that is if either the guidelines prescribed for the determination are arbitrary or if even though the guidelines are not arbitrary the guidelines are worked in an arbitrary fashion. there is no question before us that paragraph 3 prescribes any arbitrary guideline. it was however submitted that the guidelines were not adhered to and that facts and figures were arbitrarily assumed. we do not propose to delve into the question whether there has been any such arbitrary assumption of facts and figures. we think that if there is any grievance on that score the proper thing for the manufacturers to do is bring it to the notice of the government in their applications for review. the learned counsel argued that they were unable to bring these facts to the notice of the government as they were not furnished the basis on which the prices were fixed. on the other hand it has been pointed out in the counter affidavits filed on behalf of the government that all necessary and required information was furnished in the course of the hearing of the review applications and. there was no justification for the grievance that particulars were not furnished. we are satisfied that the procedure followed by the government in furnishing the requisite particulars at the time of the hearing of the review applications is sufficient compliance with the demands of fair play in the case of the class of persons claiming to be affected by the fixation of maximum price under the drugs prices control order. as already stated by us manufacturers of bulk drugs who claim to be affected by the drugs prices control. order belong to a class of persons who are well and fully informed of every intricate detail and particular which is required to be taken into account in determining the price. in most cases they are the sale manufacturers of the bulk drug and even if they are not the sole manufacturers they belong to the very select few who manufacture the bulk drug. it is impossible to conceive that they can not sit across the table and discuss item by item with the reviewing authority unless they are furnished in advance full details and particulars. the affidavits filed on behalf of the union of india show that the procedure which is adopted in hearing the review applications is to discuss across the table the various items that have been taken into account. we do not consider that there is anything unfair in the procedure adopted by the government. if necessary it is always open to the manufacturers to seek a short adjournment of the hearing of the review application to enable them to muster more facts and figures on their side. indeed we find that the hearing given to the manufacturers is often protected. as we said we do not propose to examine this question as we do not want to constitute ourselves into a court of appeal over the government in the matter of price fixation. he learned counsel argued that there were several patent errors which came to light during the course of the hearing in the high court. he said that obsolete quantitative usages had been taken into consideration proximate cost data had been ignored and the data relating to the year ending november 1976 had been adopted as the basis. it was submitted that there were errors in totalling errors in the calculation of prices of utilities errors in the calculation of net worth and many other similar errors. as we pointed out earlier these are all matters which should legitimately be raised in the review application if there is any substance in them. these are not matters for investigation in a petition under article 226 of the constitution or under article 32 of the constitution. despite the pressing invitation of shri diwan to go into facts and figures and his elaborate submissions based on facts and figures we have carefully and studiously refrained from making any reference to such facts and figures as we consider it outside our province to do so and we do not want to set any precedent as was supposed to have been done in premier automobiles though it was not so done and therefore needed explanation in later cases. one of the submissions of shri diwan was that in calculating net worth the cost of new works in progress and the amount invested outside the business were excluded from free reserves and that such exclusion could not be justified on any known principle of accountancy. we think that the question has to be decided with reference to the definition of free reserve in paragraph 2g of the control order and not on any assumed principle of accountancy. this is also a question which may be raised before the government in the review application. referring to the proforma attached to form No 1 of the fourth schedule in which are set out several items which have to be taken into account in assessing the cost of production the learned counsel attacks the notes at the end of item No 14 which mentions the various items of expenses to be excluded in ascertaining the cost. the notes is as follows notes i items of expenses to be excluded from costs a bonus in excess of statutory minimum. b bad debts and provisions. c donations and charities. d loss gain on sale of assets. e brokerage and commission. f expenses not recognized by income tax authorities salary prequisities advertisements etc. g adjustments relating to previous years. in particular he argued that item a bonus in excess of statutory minimum should not have been excluded so also items of expenditure coming under the other heads b to g which had been allowed by income tax authorities as legitimate expenses. his submission was that where bonus in excess of statutory minimum was payable under the provisions of the bonus act there was no option left to the manufacturer not to pay the excess bonus. similarly where expenses have been legitimately incurred and allowed by income tax authorities there was no justification for excluding those items of expenditure from the cost. we do not agree with the submission. it was open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. the subordinate legislating body was under no obligation to adopt the method adopted by the income tax authorities in allowing expenses for the purpose of ascertaining income and assessing it. there may be many items of business expenditure which may be allowed by income tax authorities as legitimate expenses but which can never enter the cost of production. so long as the method prescribed and adopted by the subordinate legislating body is not arbitrary and opposed to the principal statutory provisions it can not be legitimately questioned. another submission of the learned counsel relating to the norms for conversion costs packing charges and process loss of raw materials and packing materials required to the notified for the purpose of calculating retail prices of formulations. the argument for example was that there should be a more scientific formula in regard to conversion cost and not as was done so many rupees and paise per thousand capsules or one litre of liquid. it is open to the subordinate legislating authority to adopt a rough and ready but otherwise not unreasonable formula rather than a needlessly intricate so called scientific formula. we are unable to say that the subordinate legislating authority acted unreasonably in prescribing the norms in the manner it has done. while on the question on formulations we would like to refer to the oration of dr n h antia at the 24th annual convocation of the national academy of medical sciences where he posed the question why do we produce 60000 formulations of drugs worth rs 2500 crores which reach only 20 of the population when who recommends only 258 drugs and rs 750 crores worth would suffice for all our people if used in an ethical manner. a general submission of the learned counsel was that the price of formulations should not have been prescribed until the review application filed by the manufacturer in regard to the patent bulk drugs was disposed of. he submitted that the price of a formulation was dependant on the price of the bulk drug and it was therefore not right to fix the price of formulation when the price of bulk drug was in question in the review application and there was a prospect of the price of the bulk drug being increased. we do not see any force in the submission. we think that it is the necessary duty of the government to proceed to fix the retail price of a formulation as soon as the price of the parent bulk drug is fixed. price fixation of a formulation is no doubt dependant on the price of the bulk drug but it is not to await the result of a review application which in the end may turn out to be entirely without substance. if a review application is allowed and the price of the bulk drug is raised and if in the meanwhile the formulation had been ordered to be sold at a low price it may result in considerable loss to the manufacturer. but on the other hand if the review application turns out to be entirely without substance and has to be rejected and if in the meanwhile the formulation is allowed to be sold at a higher price the consumer public suffers. hus the ups and downs of commerce are inevitable and it is not possible to devise a fool proof system to take care of every possible defect and objection. it is certainly not a matter at which the court could take a hand. all that the court may do is to direct the government to dispose of the review application expeditiously according to a time bound programme. all that the government may do is to dispose of the review application with the utmost expedition. but as we perceive the public interest it is necessary that the price of formulation should be fixed close on the heels of the fixation of bulk drug price. another submission of shri diwan was that there was considerable delay in the disposal of the review applications by the government and that even now no orders had been passed in several cases. accordingly to the learned counsel the very delay in the disposal of review applications was sufficient to vitiate the entire proceeding and scheme of price fixation. according to the learned counsel the price of a bulk drug is dependant on many variable factors which keep changing very fast. if time is allowed to lapse whatever price is fixed it soon becomes out of date. if review applications are not disposed of expeditiously the notifications fixing the prices must be struck down as having become obsolete. it is difficult to agree with these propositions. it is true that the price of a bulk drug is dependent on innumerable variables. but it does not follow that the notification fixing the maximum price must necessarily be struck down as obsolete by the mere passage of time. we agree that applications for review must be dealt with expeditiously and whenever they are not so dealt with the aggrieved person may seek a mandamus from the court to direct the government to deal with the review application within a time framework. we notice that in all these matters the high court granted stay of implementation of the notifications fixing the maximum prices of bulk drugs and the retail prices of formulations. we think that in matter of this nature where prices of essential commodities are fixed in order to maintain or increase supply of the commodities or for securing the equitable distribution and availability at fair prices of the commodity it is not right that the court should make any interim order staying the implementation of the notification fixing the prices. we consider that such orders are against the public interest and ought not to be made by a court unless the court is satisfied that no public interest is going to be served. in the present case on ex parte interim order was made on april 20 1981 in the following terms in the meanwhile on the petitioners giving an undertakings to maintain prices both for bulk and formulation as were prevailing prior to the impugned notification we stay implementation of the impugned bulk drug prices as well as formulation prices. thereafter on november 25 1981 a further order was made to the following effect after hearing learned counsel and with their consent and arrangement has been worked out as on interim measure. we therefore confirm till further orders the interim order made by us on april 20 1981. the terms of the said order that is on the undertaking given on behalf of the petitioners to maintain status quo on the prices prevailing prior to the issue of the impugned notification the petitioners through their counsel further given an undertaking to this court that in case the petition is dismissed and the rule is discharged the petitioners shall within eight weeks of the dismissal of the petition by this court deposit in this court the difference in the prices of the formulations in question for being equalization account. the petitioners through their counsel further given an undertaking that in this court the petitioners would not contend or challenge the said amount if deposited is not liable to be deposited under any law whatsoever. it is made clear that the undertaking is without prejudice to the petitioners right to take appropriate directions from the supreme court if so advised in this regard. no doubt the order as made on november 25 1981 has the manufacturers on terms but the consumer public has been left high and dry. their interests have in no way been taken care of. in matters of fixation of price it is the interest of the consumer public that must come first and any interim order must take care of that interest. it was argued by the learned counsel that the undertaking given by the parties lapsed with the disposal of the writ petition by the high court and that it could no longer be enforced. we do not agree with this submission. apart from the fact that an appeal is ordinarily considered to be a continuation of the original proceeding in the present case we notice that further orders of the supreme court were also in contemplation and such further orders could only be if appeals were preferred to the supreme court. we do not think that there was any doubt in anyone 's mind that the matter would be taken up in appeal to the supreme court whichever way the writ petitions were decided. we are of the view that the undertakings given by the parties in the present cases were intended to and do continue to subsist. on the conclusions arrived at by us we have no doubt that the appeal must be allowed and the writ petition in the high court dismissed. however we think that it is necessary to give a direction to the government to dispose of the review applications after giving a notice of hearing to the manufacturer. the hearing may be given within two months from today and the review application disposed of within two weeks after the conclusion of the hearing. any information sought by the manufacturer may be given to him at the hearing in terms of what we have said in the judgment. the union of india is entitled to the costs of the appeal and the writ petition in the high court. it appears that although several writ petitions filed by different manufacturers were disposed of by the high court by a common judgment the union of india filed an appeal within the prescribed period of limitation against one of the manufacturers cynamide india limited only. this was apparently done under some misapprehension that it would be enough if a single appeal was filed. later when it was realized that separate appeals were necessary the union of india filed petitions for special leave to appeal against the other manufacturers also. as these petitions were filed beyond the prescribed period of limitation petitions for condoning the delay in filing the petitions for special leave to appeal had to be and were filed. these applications are strenuously opposed by the manufacturers who contend the ordinary rule which is enforced in cases of delay namely that everyday 's delay must be properly explained should also be rigorously enforced against the government. it is contended that the government is a well verse litigant as compared with private litigants and even if there is justification of adopting a liberal approach in condoning delay in the case of private litigants there was no need to adopt such approach in the case of the government. in cases like the present where parties have acted on the assumption that no appeals had been filed against them and have proceeded to arrange their affairs accordingly it would be unjust to condone the delay in filing the appeals at the instance of the government. though we see considerable force in the submission of shri diwan we think that the circumstances of the instant cases do justify the exercise of our discretion to condone the delay. two important features have weighed with us in condoning the delay. one is that all the writ petitions were disposed of by a common judgment and an appeal had been filed in the principal case. the other is that it is a matter of serious concern to the public interest. we therefore condone the delay grant special leave in all the petitions for special leave and direct the appeals to be listed for hearing on may 1 1987. order accordingly.

FACTS the price which the manufacturer of barlagan kotone, reported to the central government in 1971 was rs.24,735.68 per kg. after the 1979 drugs (prices control. order came into force, the distinction between essential and non-essential bulk drugs was abolished and a maximum price had to be fixed for barlagan ketone also like other bulk drugs. the manufacturer applied for fixation of price at rs.8,500 per kg. armed with authority under the drugs (prices control. order, 1979 the central government issued notifications fixing the maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers. these notifications were questioned on several grounds by the manufacturers and they have been quashed by the delhi high court on the ground of failure to observe the principles of natural justice. ARGUMENT shri g. ramaswamy, learned additional solicitor general on behalf of the union of india, submitted that the fixation of maximum price under paragraph 3 of the drugs (prices control. order was a legislative activity and, therefore, not subject to any principle of natural justice. he urged that relevant information was required to be furnished and was indeed furnished by all the manufacturers in the prescribed form as required by paragraph 3(4) of the drugs (prices control) order. he urged that the government had always been ready and wilting to give a proper hearing to the parties and in fact gave them a heating in connection with their review applications. the learned counsel argued that there were several patent errors which came to light during the course of the hearing in the high court. one of the submissions of shri diwan was that in calculating "net-worth" the cost of new works in progress and the amount invested outside the business were excluded from 'free reserves' and that such exclusion could not be justified on any known principle of accountancy. another submission of the learned counsel relating to the norms for conversion costs, packing charges and process loss of raw materials and packing materials required to the notified for the purpose of calculating retail prices of formulations. a general submission of the learned counsel was that the price of formulations should not have been prescribed until the review application filed by the manufacturer in regard to the patent bulk drugs was disposed of. he submitted that the price of a formulation was dependant on the price of the bulk drug and it was, therefore, not right to fix the price of formulation when the price of bulk drug was in question in the review application and there was a prospect of the price of the bulk drug being increased. ISSUE the problem is that of high prices, bearing, it is said, little relation to the cost of production to the manufacturers. ANALYSIS 'price-fixation is neither the function nor the forte of the court. the second observation made is, legislative action, plenary or subordinate, is not subject to rules of natural justice. in the case of parliamentary legislation, the proposition is self-evident. in the case of subordinate 'legislation, it may happen that parliament may itself provide for a notice and for a hearing-there are several instances of the legislature requiring the subordinate legislating authority to give public notice and a public hearing before say, for example, levying a municipal rate--,in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice. a price fixation measure does not concern itself with the interests of an individual manufacturer or producer. it is generally in relation to a particular commodity or class of commodities or transactions. it is a direction of a general character, not directed against a particular situation. it is intended to operate in the future. it is conceived in the interests of the general consumer public. the right of the citizen to obtain essential articles at fair prices and the duty of the state to so provide them are transformed into the power of the state to fix prices and the obligation of the producer to charge n6 more than the price fixed. viewed from whatever angle, the angle of general application the prospectivity of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity. pricefixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. in shree meenakshi mills ltd. v. union of india, [1974. 1 scc 468 1973 indlaw sc 291 a notification fixing the ex-factory price of certain counts of cotton yarn was questioned on the ground that the price had been arbitrarily fixed. if the prices of yarn or cloth were fixed in such a way to enable the manufacturer or producer recover his cost of production and secure a reasonable margin of profit, no aspect of infringement of any fundamental right could be said to arise. it was to be remembered that the mere fact that some of those were engaged in the industry, trade or commerce alleged'that they were incurring loss would not render the law stipulating the price unreasonable. in laxmi khandsari v. state of uttar pradesh, [1981] 2 scc 600 1981 indlaw sc 558 it was held that the sugar cane control order, 1966 was a legislative measure and therefore, rules of natural justice were not attracted. in rameshchandra kachardas porwal v. state of maharashtra, [1981] 2 scc 722 1981 indlaw sc 423 it was observed that legislative activity did not invite natural justice and that making of a declaration that a certain place shall be a principal market yard for a market area under the relevant agricultural produce markets acts was an act legislative in character. the observation of magarry, j. in bates v. lord hailsha, of st. marylebone [1972. 1 wlr 1973 that the rules of natural justice do not run in the sphere of legislation, primary or delegated, was cited with approval and two well known text books writers paul kackson and wades h.w.r. were also quoted. it is further prescribed that different prices may be determined, from time to time, for different areas or for different factories or for different kinds of sugar. it is to be noticed here that the payment to be made under s. 3(3c) is not necessarily the same as the controlled price which may be fixed under s. 3(2)(c) of the act. a committee on drugs and pharmaceutical industry, popularly known as the hathi committee was appointed by the government of india to enquire into the various facets, of the drug industry in india. one of the terms of reference was 'to examine the measures taken so far to reduce prices of drugs for the consumer, and to recommend such further measures as may be necessary to rationalise the prices of basic drugs and formulations. the hathi committee noticed that 'in a country like india where general poverty and the wide disparities in levels of income between different sections existed' it was particularly important to emphasise 'the social utility of the industry and the urgent need for extending as rapidly as possible certain minimum facilities in terms of preventive and curative medicines to the large mass of people both urban and rural. the distinction between an essential bulk drug included in the schedule and a bulk drug not so included in the schedule, which was made in 1970 drugs (prices control. order was abandoned in the 1979 order. bulk drugs were, however, broadly divided into indigenously manufactured bulk drugs, imported bulk drugs and hulk drugs which were both manufactured indigenously as also imported. nothing in the scheme of the drugs (prices control. order induces us to hold that price fixation under the drugs (prices control. order is not a legislative activity, but a quasi-judicial activity which would attract the observance of the principles of natural justice. nor is there anything in the scheme or the provisions of the drugs (prices control) order which otherwise contemplates the observance of any principle of natural justice or kindred rule, the non-observance of which would give rise to a cause of action to a suitor. what the order does contemplate however is 'such enquiry' by the government 'as it thinks fit. the primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate consumer an object designed to fulfil the mandate of art. 39(b) of the constitution it is primarily from the consumer public's point of view that the government is expected to make its enquiry. the need of the consumer public is to be ascertained and making the drug available to them at a fair price is what it is all about. the enquiry is to be made from that angle and directed towards that end. so, information may be gathered from whatever source considered desirable by the government. the price fixed by the government may be questioned on the ground that the considerations stipulated by the order as relevant were not taken into account. it may also be questioned on any ground on which a subordinate legislation may be questioned, such as, being contrary to constitutional or other statutory provisions. it may be questioned on the ground of a denial of the right guaranteed by art. 14 if it is arbitrary, that is, if either the guidelines prescribed for the determination are arbitrary or if, even though the guidelines are not arbitrary, the guidelines are worked in an arbitrary fashion. these are all matters which should legitimately be raised in the review application, if there is any substance in them. these are not matters for investigation in a petition under art. 226 of the constitution or under art. 32 of the constitution. despite the pressing invitation of shri diwan to go into facts and figures and his elaborate submissions based on facts and figures, we have carefully and studiously refrained from making any reference to such facts and figures as we consider it outside our province to do so and we do not want to set any precedent as was supposed to have been done in premier automobiles though it was not so done and, therefore, needed explanation in later cases. the question has to be decided with reference to the definition of 'free reserve' in paragraph 2(g) of the control order and not on any assumed principle of accountancy. this is also a question which may be raised before the government in the review application. it was open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. the subordinate legislating body was under no obligation to adopt the method adopted by the income-tax authorities in allowing expenses for the purpose of ascertaining income and assessing it. there may be many items of business expenditure which may be allowed by income-tax authorities as legitimate expenses but which can never enter the cost of production. so long as the method prescribed and adopted by the subordinate legislating body is not arbitrary and opposed to the principal statutory provisions, it cannot be legitimately questioned. any information sought by the manufacturer may be given to him at the hearing in terms of what we have said in the judgment. STATUTE it must be remembered that art. 39(b) of the essential commodities act enjoins a duty on the state towards securing 'that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. the essential commodities act is a legislation towards that end. s. 3(1) of the essential commodities act enables the central government, if it is of opinion 'that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price', to 'provide for regulating or prohibiting by order, the production, supply and distribution thereof and trade and commerce therein. in particular, s. 3(2)(c) enables the central government, to make an order providing for controlling the price at which any essential commodity may be bought or sold. it is in pursuance of the powers granted to the central government by the essential commodities act that first the drugs (prices control. order, 1970 and later the drugs (prices control. order, 1979 were made. s. 3(3c) provides for the ascertainment of the price. it provides that in calculating the amount to be paid for the commodity required to be sold regard is to be had to--(a) the minimum price, if any, fixed for sugarcane by the central government under this section; (b) the manufacturing cost of sugar; (c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar. s. 3(2)(c) of the act, we have already seen, enables the central government to make an order controlling the price at which any essential commodity may be bought or sold, if the central government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or in securing their equitable distribution and availability at fair prices. s. 3(3c) provides for the determination of the price to be paid to a person who has been directed by the central government by an order made under s. 3(2)(c) to sell a certain quantity of an essential commodity to the government or its nominee. the drugs (prices control) order, 1970 defined 'bulk drugs' as follows: "bulk drugs" means "any unprecessed phamaceutical, chemical, biological and plant product or medicinal gas conforming to pharmacopocial or other standards accepted which is used as such or after being processed into formulations and includes an essential bulk drug.

FACTS the price which the manufacturer of barlagan kotone, reported to the central government in 1971 was rs.24,735.68 per kg. after the 1979 drugs (prices control. order came into force, the distinction between essential and non-essential bulk drugs was abolished and a maximum price had to be fixed for barlagan ketone also like other bulk drugs. the manufacturer applied for fixation of price at rs.8,500 per kg. armed with authority under the drugs (prices control. order, 1979 the central government issued notifications fixing the maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers. these notifications were questioned on several grounds by the manufacturers and they have been quashed by the delhi high court on the ground of failure to observe the principles of natural justice. ARGUMENT the fixation of maximum price under paragraph 3 of the drugs (prices control). order was a legislative activity and, therefore, not subject to any principle of natural justice. relevant information was required to be furnished and was indeed furnished by all the manufacturers in the prescribed form as required by paragraph 3(4) of the drugs (prices control) order. in calculating "net-worth" the cost of new works in progress and the amount invested outside the business were excluded from 'free reserves' and that such exclusion could not be justified on any known principle of accountancy. a general submission of the learned counsel was that the price of formulations should not have been prescribed until the review application filed by the manufacturer in regard to the patent bulk drugs was disposed of. the price of a formulation was dependant on the price of the bulk drug and it was, therefore, not right to fix the price of formulation when the price of bulk drug was in question in the review application and there was a prospect of the price of the bulk drug being increased. ISSUE the problem is that of high prices, bearing, it is said, little relation to the cost of production to the manufacturers. ANALYSIS 'price-fixation is neither the function nor the forte of the court. the second observation made is, legislative action, plenary or subordinate, is not subject to rules of natural justice. in case of parliamentary legislation, the proposition is self-evident. in the case of subordinate 'legislation, it may happen that parliament may itself provide for a notice and for a hearing-there are several instances of the legislature requiring the subordinate legislating authority to give public notice and a public hearing before say, for example, levying a municipal rate--,in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice. a price fixation measure does not concern itself with the interests of an individual manufacturer or producer. it is generally in relation to a particular commodity or class of commodities or transactions. it is a direction of a general character, not directed against a particular situation. it is intended to operate in the future. it is conceived in the interests of the general consumer public. the right of the citizen to obtain essential articles at fair prices and the duty of the state to so provide them are transformed into the power of the state to fix prices and the obligation of the producer to charge n6 more than the price fixed. viewed from whatever angle, the angle of general application the prospectivity of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity. pricefixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. in shree meenakshi mills ltd. v. union of india, [1974. 1 scc 468 1973 indlaw sc 291 a notification fixing the ex-factory price of certain counts of cotton yarn was questioned on the ground that the price had been arbitrarily fixed. if the prices of yarn or cloth were fixed in such a way to enable the manufacturer or producer recover his cost of production and secure a reasonable margin of profit, no aspect of infringement of any fundamental right could be said to arise. the mere fact that some of those were engaged in the industry, trade or commerce alleged that they were incurring loss would not render the law stipulating the price unreasonable. in laxmi khandsari v. state of uttar pradesh, [1981] 2 scc 600 1981 indlaw sc 558 it was held that the sugar cane control order, 1966 was a legislative measure and therefore, rules of natural justice were not attracted. in rameshchandra kachardas porwal v. state of maharashtra, [1981] 2 scc 722 1981 indlaw sc 423 it was observed that legislative activity did not invite natural justice and that making of a declaration that a certain place shall be a principal market yard for a market area under the relevant agricultural produce markets acts was an act legislative in character. the observation of magarry, j. in bates v. lord hailsha, of st. marylebone [1972. 1 wlr 1973 that the rules of natural justice do not run in the sphere of legislation, primary or delegated, was cited with approval and two well known text books writers paul kackson and wades h.w.r. were also quoted. it is further prescribed that different prices may be determined, from time to time, for different areas or for different factories or for different kinds of sugar. the payment to be made under s. 3(3c) is not necessarily the same as the controlled price which may be fixed under s. 3(2)(c) of the act. a committee on drugs and pharmaceutical industry, popularly known as the hathi committee was appointed by the government of india to enquire into the various facets, of the drug industry in india. one of the terms of reference was 'to examine the measures taken so far to reduce prices of drugs for the consumer, and to recommend such further measures as may be necessary to rationalise the prices of basic drugs and formulations. the hathi committee noticed that 'in a country like india where general poverty and the wide disparities in levels of income between different sections existed' it was particularly important to emphasise 'the social utility of the industry and the urgent need for extending as rapidly as possible certain minimum facilities in terms of preventive and curative medicines to the large mass of people both urban and rural. the distinction between an essential bulk drug included in the schedule and a bulk drug not so included in the schedule, which was made in 1970 drugs (prices control. order was abandoned in the 1979 order. bulk drugs were, however, broadly divided into indigenously manufactured bulk drugs, imported bulk drugs and hulk drugs which were both manufactured indigenously as also imported. nothing in the scheme of the drugs (prices control. order induces us to hold that price fixation under the drugs (prices control. order is not a legislative activity, but a quasi-judicial activity which would attract the observance of the principles of natural justice. nor is there anything in the scheme or the provisions of the drugs (prices control) order which otherwise contemplates the observance of any principle of natural justice or kindred rule, the non-observance of which would give rise to a cause of action to a suitor. what the order does contemplate however is 'such enquiry' by the government 'as it thinks fit. the primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate consumer an object designed to fulfil the mandate of art. 39(b) of the constitution it is primarily from the consumer public's point of view that the government is expected to make its enquiry. the need of the consumer public is to be ascertained and making the drug available to them at a fair price is what it is all about. the enquiry is to be made from that angle and directed towards that end. so, information may be gathered from whatever source considered desirable by the government. the price fixed by the government may be questioned on the ground that the considerations stipulated by the order as relevant were not taken into account. it may also be questioned on any ground on which a subordinate legislation may be questioned, such as, being contrary to constitutional or other statutory provisions. it may be questioned on the ground of a denial of the right guaranteed by art. 14 if it is arbitrary, that is, if either the guidelines prescribed for the determination are arbitrary or if, even though the guidelines are not arbitrary, the guidelines are worked in an arbitrary fashion. these are all matters which should legitimately be raised in the review application, if there is any substance in them. these are not matters for investigation in a petition under art. 226 of the constitution or under art. 32 of the constitution. despite the pressing invitation of shri diwan to go into facts and figures and his elaborate submissions based on facts and figures, we have carefully and studiously refrained from making any reference to such facts and figures as we consider it outside our province to do so and we do not want to set any precedent as was supposed to have been done in premier automobiles though it was not so done and, therefore, needed explanation in later cases. the question has to be decided with reference to the definition of 'free reserve' in paragraph 2(g) of the control order and not on any assumed principle of accountancy. this is also a question which may be raised before the government in the review application. it was open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. the subordinate legislating body was under no obligation to adopt the method adopted by the income-tax authorities in allowing expenses for the purpose of ascertaining income and assessing it. there may be many items of business expenditure which may be allowed by income-tax authorities as legitimate expenses but which can never enter the cost of production. so long as the method prescribed and adopted by the subordinate legislating body is not arbitrary and opposed to the principal statutory provisions, it cannot be legitimately questioned. any information sought by the manufacturer may be given to him at the hearing in terms of what we have said in the judgment. the distinction between an essential bulk drug included in the schedule and a bulk drug not so included in the schedule, which was made in 1970 drugs (prices control) order was abandoned in the 1979 order. in welcom hotel v. state of andhra pradesh, [1983] 4 scc 575 1983 indlaw sc 128 the observations of chandrachud, cj. in prag ice and oil mills were quoted with approval in connection with the fixation of prices of food stuffs served in restaurants. STATUTE art. 39(b) of the essential commodities act enjoins a duty on the state towards securing 'that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. s. 3(1) of the essential commodities act enables the central government, if it is of opinion 'that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair price', to 'provide for regulating or prohibiting by order, the production, supply and distribution thereof and trade and commerce therein. s. 3(2)(c) enables the central government, to make an order providing for controlling the price at which any essential commodity may be bought or sold. s. 3(3c) provides for the ascertainment of the price. it provides that in calculating the amount to be paid for the commodity required to be sold regard is to be had to--(a) the minimum price, if any, fixed for sugarcane by the central government under this section; (b) the manufacturing cost of sugar; (c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar. the drugs (prices control) order, 1970 defined 'bulk drugs' as follows: "bulk drugs" means "any unprecessed phamaceutical, chemical, biological and plant product or medicinal gas conforming to pharmacopocial or other standards accepted which is used as such or after being processed into formulations and includes an essential bulk drug.

challenge in this appeal is to the order of a division bench of madras high court allowing the appeal filed by the respondent hereinafter referred to as the accused the accused was convicted for offence punishable under section 302 of the indian penal code1860 in short the ipc and sentenced to undergo imprisonment for life and to pay a fine of rs 10000 with default stipulation by principal district judge madurai. he was also convicted for offences punishable under section 392 read with section 397 ipc and sentence to undergo rigorous imprisonment for 10 years and to pay a fine. background facts in a nutshell are as follows. the deceased is one mayurani a sri lankan student who was residing in the first floor of the house belonging to one solsimalai p w 1 the accused is also a sri lankan student studying in a different college but staying in the second floor of the same premises. the occurrence allegedly took place in the afternoon of 22 4 2003. the first information report was lodged by p w 1 on 24 4 2003 at about 9 30 a m it was indicated in the first information report that on 24 4 2003 at 9 00 a m while the informant had gone to perform pooja in the first floor of the house he got foul smell in the last room of the first floor and found blood seeping through the front door. on opening the window he noticed that mayurani was lying in a pool of blood with her face covered with a bag. on the basis of the aforesaid f i r investigation was taken up initially by p w 40. subsequently on the basis of the order of the high court such investigation was completed by p w 42 the accused is stated to have been arrested on suspicion on 26 4 2003 on the basis of the statement of the accused prosecution discovered many materials including a knife and a log allegedly used for killing. initially p w 40 suspected the role of p w 1his wife p w 2p w 3from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as p w 4who was working as a cleaner in the vehicle of p w 1 subsequently however p w 42who took over investigation from p w 40 filed charge sheet only against the present appellant on the footing that p ws 1 to 4 had no role to play in the crime. the prosecution relied upon only circumstantial evidence namely confessional statements of the accused leading to recovery of various incriminating materials. p 6 is the statement leading to recovery of travel bags m os 2 3knife m 0 5wooden log m 0 28rubber gloves m 0 29 series cotton rope with human hair mn o 30 seriestwo sponges soaked with blood m 0 31 seriesbloodstained blue clolour jean pant m 0 32bloodstained white banian m 0 33colour banian m 0 34bloodstained grey colour pant m 0 35bloodstained pillow m 0 36plastic bucket m 0 37 from the house of p w 3 ex p 8 is the statement leading to recovery of computer and its accessories m os 6 to 17 from the house of p w 15a classmate of the accused. p 10 is the statement relating to jewelleries ultimately leading to recovery of gold ingots m o 18 series from the house of p w 19 on the basis of other connecting statements of p w 17 and p w 18 these three statements exs p 6p 8 and p 10 dated 26 4 2003were made before p w 40 in the presence of p w 22 and c w 1 the other confessional statement ex. p 12 dated 22 9 2003 made before p w 42 and subbiah and p w 24led to recovery of m dollar m 0 38 and key chain with key chain in m 0 39 from the toilet in the room of the accused. the prosecution has also relied upon the alleged motive to the effect that the accused urgently wanted money with a view to increase his marks in mathematics and therefore the accused had stolen articles belonging to the deceased. the trial court found the respondent guilty and recorded conviction and imposed sentence as aforestated. the trial court found that the prosecution version rested on circumstantial evidence. the following circumstances were highlighted to find the accused guilty. a the death is homicidal b the accused was in need of money to chase mathematics paper and for the aforesaid purpose he has killed the deceased to take away the valuable articles like computer and gold ornaments to sell such articles in the market. c at the time of occurrence only the accused deceased and pw 9 were available in the premises and there was no other person. d statement of the accused leading to recovery of incriminating materials such as knife rope clothes wooden log and other valuable articles such as computer gold ornamentsm dollar and the key chain with key belonging to the deceased. the high court found that the circumstances highlighted were not sufficient to fasten the guilt on the accused and directed acquittal. learned counsel for the appellant submitted that the high court failed to notice that the circumstances highlighted clearly establish the chain of circumstances which established the prosecution version and the high court was not justified in directing acquittal. learned counsel for the respondent on the other hand supported the judgment of the high court. the conviction based on circumstantial evidence has been highlighted by this court in various orders of this court. it has been consistently laid down by this court that where a case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person see hukam singh v state of rajasthan air 1977 sc 1063 1977 indlaw sc 433 eradu and ors v. state of hyderabad air 1956 sc 316 1955 indlaw sc 108 earabhadrappa v state of karnataka air 1983 sc 446 1983 indlaw sc 161 state of u p v. sukhbasi and ors air 1985 sc 1224 1985 indlaw sc 71 balwinder singh v state of punjab air 1987 sc 350 1986 indlaw sc 35 ashok kumar chatterjee v state of m p air 1989 sc 1890 1989 indlaw sc 443 the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. in bhagat ram v state of punjab air 1954 sc 621 1954 indlaw sc 188it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. we may also make a reference to a decision of this court in c chenga reddy and ors v. state of a p 1996 10 scc. 193 1996 indlaw sc 3059wherein. it has been observed thus. in a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. moreover all the circumstances should be complete and there should be no gap left in the chain of evidence. further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. in padala veera reddy v state of a p and ors air 1990. sc 79 1989 indlaw sc 31it was laid down that when a case rests upon circumstantial evidence such evidence must satisfy the following tests 1 the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established 2 those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3 the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and 4 the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. in state of u p v. ashok kumar srivastava1992 crl. lj 1104. 1992 indlaw sc 107it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences the one in favour of the accused must be accepted. it was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. sir alfred wills in his admirable book wills circumstantial evidence chapter vi lays down the following rules specially to be observed in the case of circumstantial evidence 1 the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum 2 the burden of proof is always on the party who asserts the existence of any fact which infers legal accountability 3 in all cases whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits 4 in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt 5 if there be any reasonable doubt of the guilt of the accused he is entitled as of right to be acquitted. there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence laid down by the this court as far back as in 1952. in hanumant govind nargundkar and anr. v state of madhya. pradeshair 1952 sc 343 1952 indlaw sc 89wherein it was observed thus it is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. in other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. a reference may be made to a later decision in sharad birdhichand sarda v state of maharashtraair 1984 sc 1622 1984 indlaw sc 432 therein while dealing with circumstantial evidence it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution can not be cured by false defence or plea. the conditions precedent in the words of this court before conviction could be based on circumstantial evidence must be fully established. they are 1 the circumstances from which the conclusion of guilt is to be drawn should be fully established. the circumstances concerned must or should and not may be established 2 the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty 3 the circumstances should be of a conclusive nature and tendency 4 they should exclude every possible hypothesis except the one to be proved and 5 there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. these aspects were highlighted in state of rajasthan v rajaram 20038 scc 180 2003 indlaw sc 630state of haryana v jagbir singh anr 200311 scc 261 2003 indlaw sc 807. the main circumstances relied upon by the prosecution relates to the statements of the accused leading to discovery of materials facts admissible under section 27 of the indian evidence act1872 in short the evidence act. law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under section 27 of the evidence act has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. the scope and ambit of section 27 of the evidence act had been stated and restated in several decisions of this court. however in almost all such decisions reference is made to the observation of the privy council in pulukuri kotayya v emperor air 1947 pc 67 1946 indlaw pc 23 it is worthwhile to extract such quoted observation it is fallacious to treat the fact discovered within the section as equivalent to the object produced the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. information as to past user or the past history of the object produced is not related to his discovery in the setting in which it is discovered. information supplied by a person in custody that i will produce a knife concealed in the roof of my house does not lead to the discovery of the knife knives were discovered many years ago. it leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant. but if to the statement the words be added with which stabbed athese words are inadmissible since they do not related to the discovery of the knife in the house of the informant. at one time it was held that the expression fact discovered in the section is restricted to a physical or material fact which can be perceived by the senses and that it does not include a mental fact now it is fairly settled that the expression fact discovered includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this as noted in pulukuri kottaya 's case 1946 indlaw pc 23 supra. the various requirements of the section can be summed up as follows. the fact of which evidence is sought to be given must be relevant to the issue. it must be borne in mind that the provision has nothing to do with the question of relevancy. the relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. the fact must have been discovered. the discovery must have been in consequence of some information received from the accused and not by the accused 's own act. the person giving the information must be accused of any offence. he must be in the custody of a police officer. the discovery of a fact in consequence of information received from an accused in custody must be deposed to. 7 thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. the rest is inadmissible. as observed in pulukuri kottaya 's case 1946 indlaw pc 23 supra it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. it is one link in the chain of proof and the other links must be forged in a manner allowed by law. to similar effect was the view expressed in k chinnaswamy reddy v state of a p air 1962 sc 1788 1962 indlaw sc 192. the above position was highlighted in anter singh v state of rajasthan air 2004 sc 2665 2004 indlaw sc 79. in rammi alias rameshwar v state of madhya pradesh air 1999 sc 3544 1999 indlaw sc 1512 the scope and ambit of section 27 of the evidence act was analysed in great detail and it was concluded in para 12 as follows true such information is admissible in evidence under section 27 of the evidence act but admissibility alone would not render the evidence pertaining to the above information reliable. while testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused. significantly the prosecution has relied upon the evidence of pw 40 who was investigating initially. his evidence has to be considered in the background of what has been stated by pw 22 and cw 1 it has been accepted by the prosecution that great efforts were made by pw 40 to falsely implicate to pws 1 to 4 and for that purpose a departmental proceeding was initiated. even according to the statement of the subsequent investigating officer pw 42several blank papers with the signature of pw 22 and cw 1 had been by pw 40 and such documents had been used to create false records to implicate pws 1 to 4 it is to be noted that pw 2 himself was one of the suspected person at the initial stage of investigation. that apart materials on record such as the statement of p w 22 recorded under section 164 of the code of criminal procedure1973. in short the code and the statement of c w 1raise a reasonable doubt relating to voluntariness of the alleged confession. p w 22who is a close relation of the deceased cousin has stated that two days after the occurrence after the information that bala prasanna was roaming near lic colony anna nagar police brought him to the police station and bala prasanna was arrested at 5 00 p m and was taken to the police station and a witness was present there. it is further stated that at the time of enquiry the accused was beaten up by the police and they have seized a gold ring and rs 5000 cash from him. if this is the statement of p w 22 recorded under section 164 of the code a witness in whose presence the confessional statement leading to discovery of articles from the house of hajeeali p w 3 had been made it raises serious doubt regarding the voluntariness of the statement. in this context it is also note worthy to indicate that c w 1 in his evidence has stated that the accused was in police station on 24 4 2003 itself. similar statement is made by p w 4 that apart c w 1 has stated that no statement has been made in his presence. the prosecution version to the effect that even some signatures on blank papers had been taken from p w 22 and c w 1 thus assumes great importance. the alleged statement made by the accused led to discovery of knife bloodstained clothes rope etc. unfortunately for the prosecution there is no evidence to show that in fact the wearing apparels containing bloodstains belonged to the accused save and except the alleged confessional statement. no witness has spoken that those clothes were worn by the accused at any time far less at or about the time of occurrence. it is also to be kept in view that those articles were recovered from the house of p w 3 and at the initial stage of investigation p w 3 himself was one of the suspected person and he was arrested. therefore the statement of p w 3 and his mother that those articles were brought by the accused and left in the upstairs room is to be considered with a pinch of salt. moreover there is nothing to indicate that in fact the bloodstained clothes and rope had tallied with the blood grouping of the deceased. the knife did not contain any bloodstain. therefore the aspect relating to recovery of articles from the house of p w 3 and his mother can not be considered as a link to complete the chain of circumstantial evidence. the next recovery relates to recovery of computer and accessories. apart from the fact that there is niggling doubt about the so called confession in view of statement under section 164 of the code of p w 22 and the statement of c w 1a further doubt is raised regarding such aspect in view of evidence of c w 1 to the effect that he had seen such computer in the room of the deceased when they had gone to the room after the offence was reported. the fact that c w 1 is a close relation of the deceased adds weight to his evidence rather than taking it away. even accepting that the computer had been given to p w 15 by the accused such circumstance by itself does not unerringly points towards the guilt of the accused either in respect of offence of murder or even robbery. it is quite possible that such articles might have been borrowed by the accused from the deceased and not necessarily stolen by the accused from the deceased after killing her. the fact that p w 9 had not initially stated anything before p w 40 about the accused coming down with computer at 3 30 p m and stated so for the first time when she was re examined after 5 months can not be lost sight of. as a matter of fact p w 9 who was examined on the very date when police started investigation did not inform the police that she had seen the accused coming down from upstairs or that the accused had threatened her. her statement to the following i did not tell anyone that balaprasanna took away the computer and threatened me. i did not tell this even to the inspector of police after going to the police station. i do not tell this even to p w 1. the next recovery relates to the ingots. for the aforesaid aspect the evidence of p ws 1718 and 19 is relevant. since the golden jewellery had been molten and were recovered in the shape of ingots it would be very hazardous to come to the conclusion that in fact the golden jewellery belonged to the deceased. if the accused had killed the deceased and stolen those golden jewellery there is no reason as to why he had also not taken ear rings from the deceased. the fact that ear rings were on the dead body is admitted by the prosecution. the prosecution has strongly relied upon the fact that m dollar belonging to the deceased and a chain with key of the room of the deceased were discovered from inside the toilet in the room which was previously occupied by the accused. for the aforesaid purpose they have relied upon the evidence of p w 42 and the seizure witness p w 24 the accused had allegedly made earlier confessional statement before p w 40 on 26 4 2003 leading to discovery of several articles. the subsequent statement spoken to by p w 42the subsequent investigating officer is alleged to have been made only in september2003after about five months. so far as the first confession statement made before p w 40 is concerned admittedly the accused was under physical custody at that time whereas at the time of last confession stated to have been made before p w 42the accused was on bail and he had been summoned by p w 42 for further examination and therefore technically in custody. if the accused had not made such a statement at such first instance when he had confessed about other articles it is not understood as to how after 5 months when he was on bail he would make such a statement. such alleged confession made belatedly thus creates doubt regarding its authenticity or voluntariness. in this context it is to be noted that c w 1 states that m dollar was taken from him by p w 42 for the purpose of facilitating investigation. keeping in view the fact that c w 1 is a close relation of the deceased and obviously interested in punishing the real culprit such a statement coming from c w 1 can not be slightly brushed aside. the fact that there had been a statement allegedly made by p w 1 leading to recovery of a parallel key from the dash board of the car of p w 1cannot be lost sight of. it is of course true that the prosecution has tried to exonerate p w 1 by adducing evidence through p ws 36 and 39 to the effect that immediately after recovery of the dead body p w 40 had taken two such keys thus contradicting the alleged confession of p w 1 however the very suspicious role of p w 40who apparently was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after 5 months. law is well settled that when the prosecution relies upon circumstantial evidence all the links in the chain of circumstances must be complete and should be proved through cogent evidence. when the judgment of the high court is analysed in the background of what has been stated by this court as regards circumstantial evidence the inevitable conclusion is that the impugned judgment of the high court does not suffer from any infirmity to warrant interference. the appeal is dismissed. appeal dismissed.

FACTS the deceased is one mayurani,a sri lankan student,who was residing in the first floor of the house belonging to one solsimalai (p.w.1). the accused is also a sri lankan student studying in a different college,but staying in the second floor of the same premises. the occurrence allegedly took place in the afternoon of 22.4.2003. the first information report was lodged by p.w.1 on 24-4-2003 at about 9.30 a.m. it was indicated in the first information report that on 24.4.2003 at 9.00 a.m.,while the informant had gone to perform pooja in the first floor of the house,he got foul smell in the last room of the first floor and found blood seeping through the front door. on opening the window he noticed that mayurani was lying in a pool of blood with her face covered with a bag.on the basis of the aforesaid f.i.r.,investigation was taken up initially by p.w.40. subsequently on the basis of the order of the high court,such investigation was completed by p.w.42. the accused is stated to have been arrested on suspicion on 26.4.2003. on the basis of the statement of the accused,prosecution discovered many materials including a knife and a log allegedly used for killing. initially,p.w.40 suspected the role of p.w.1,his wife p.w.2,p.w.3,from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as p.w.4,who was working as a cleaner in the vehicle of p.w.1.subsequently,however,p.w.42,who took over investigation from p.w.40 filed charge-sheet only against the present appellant on the footing that p.ws.1 to 4 had no role to play in the crime. challenge in this appeal is to the order of a division bench of madras high court allowing the appeal filed by the respondent (hereinafter referred to as the 'accused'). the accused was convicted for offence punishable under section 302 of the indian penal code,1860 (in short the 'ipc') and sentenced to undergo imprisonment for life and to pay a fine of rs.10,000/-with default stipulation by principal district judge,madurai. ANALYSIS in bhagat ram v.state of punjab (air 1954 sc 621 1954 indlaw sc 188),it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. in state of u.p.v.ashok kumar srivastava,(1992 crl.lj 1104 1992 indlaw sc 107),it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences,the one in favour of the accused must be accepted. it was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this court as far back as in 1952. the main circumstances relied upon by the prosecution relates to the statements of the accused leading to discovery of materials facts,admissible under section 27 of the indian evidence act,1872 (in short the 'evidence act'). the scope and ambit of section 27 of the evidence act had been stated and restated in several decisions of this court. at one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses,and that it does not include a mental fact,now it is fairly settled that the expression "fact discovered" includes not only the physical object produced,but also the place from which it is produced and the knowledge of the accused as to this,as noted in pulukuri kottaya's case 1946 indlaw pc 23. in rammi alias rameshwar v.state of madhya pradesh (air 1999 sc 3544 1999 indlaw sc 1512) the scope and ambit of section 27 of the evidence act was analysed in great detail and it was concluded in para 12 as follows. true,such information is admissible in evidence under section 27 of the evidence act,but admissibility alone would not render the evidence,pertaining to the above information,reliable. while testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused. the alleged statement made by the accused led to discovery of knife,bloodstained clothes,rope,etc. unfortunately,for the prosecution there is no evidence to show that in fact the wearing apparels containing bloodstains belonged to the accused,save and except the alleged confessional statement. no witness has spoken that those clothes were worn by the accused at any time far less at or about the time of occurrence. it is also to be kept in view that those articles were recovered from the house of p.w.3 and at the initial stage of investigation,p.w.3 himself was one of the suspected person and he was arrested. therefore,the statement of p.w.3 and his mother that those articles were brought by the accused and left in the upstairs room is to be considered with a pinch of salt moreover,there is nothing to indicate that in fact the bloodstained clothes and rope had tallied with the blood grouping of the deceased. the knife did not contain any bloodstain. therefore,the aspect relating to recovery of articles from the house of p.w.3 and his mother cannot be considered as a link to complete the chain of circumstantial evidence. the evidence of p.ws.17,18 and 19 is relevant. since the golden jewellery had been molten and were recovered in the shape of ingots,it would be very hazardous to come to the conclusion that in fact the golden jewellery belonged to the deceased. if the accused had killed the deceased and stolen those golden jewellery,there is no reason as to why he had also not taken ear rings from the deceased. the fact that ear rings were on the dead body is admitted by the prosecution. the fact that there had been a statement allegedly made by p.w.1 leading to recovery of a parallel key from the dash board of the car of p.w.1,cannot be lost sight of. final however,the very suspicious role of p.w.40,who apparently was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after 5 months. law is well settled that when the prosecution relies upon circumstantial evidence,all the links in the chain of circumstances must be complete and should be proved through cogent evidence when the judgment of the high court is analysed in the background of what has been stated by this court as regards circumstantial evidence,the inevitable conclusion is that the impugned judgment of the high court does not suffer from any infirmity to warrant interference. STATUTE section 302 ipc, 1860.

FACTS the deceased is one mayurani,a sri lankan student,who was residing in the first floor of the house belonging to one solsimalai (p.w.1). the accused is also a sri lankan student studying in a different college,but staying in the second floor of the same premises. the occurrence allegedly took place in the afternoon of 22.4.2003. the first information report was lodged by p.w.1 on 24-4-2003 at about 9.30 a.m. it was indicated in the first information report that on 24.4.2003 at 9.00 a.m.,while the informant had gone to perform pooja in the first floor of the house,he got foul smell in the last room of the first floor and found blood seeping through the front door. on opening the window he noticed that mayurani was lying in a pool of blood with her face covered with a bag.on the basis of the aforesaid f.i.r.,investigation was taken up initially by p.w.40. subsequently on the basis of the order of the high court,such investigation was completed by p.w.42. the accused is stated to have been arrested on suspicion on 26.4.2003.on the basis of the statement of the accused,prosecution discovered many materials including a knife and a log allegedly used for killing. initially,p.w.40 suspected the role of p.w.1,his wife p.w.2,p.w.3,from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as p.w.4,who was working as a cleaner in the vehicle of p.w.1.subsequently,however,p.w.42,who took over investigation from p.w.40 filed charge-sheet only against the present appellant on the footing that p.ws.1 to 4 had no role to play in the crime. challenge in this appeal is to the order of a division bench of madras high court allowing the appeal filed by the respondent (hereinafter referred to as the 'accused'). the accused was convicted for offence punishable under section 302 of the indian penal code,1860 (in short the 'ipc') and sentenced to undergo imprisonment for life and to pay a fine of rs.10,000/-with default stipulation by principal district judge,madurai. ANALYSIS in bhagat ram v.state of punjab (air 1954 sc 621 1954 indlaw sc 188),it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. in state of u.p.v.ashok kumar srivastava,(1992 crl.lj 1104 1992 indlaw sc 107),it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences,the one in favour of the accused must be accepted. it was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this court as far back as in 1952. the main circumstances relied upon by the prosecution relates to the statements of the accused leading to discovery of materials facts,admissible under section 27 of the indian evidence act,1872 (in short the 'evidence act'). law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under section 27 of the evidence act,has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. the scope and ambit of section 27 of the evidence act had been stated and restated in several decisions of this court. at one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses,and that it does not include a mental fact,now it is fairly settled that the expression "fact discovered" includes not only the physical object produced,but also the place from which it is produced and the knowledge of the accused as to this,as noted in pulukuri kottaya's case 1946 indlaw pc 23. in rammi alias rameshwar v.state of madhya pradesh (air 1999 sc 3544 1999 indlaw sc 1512) the scope and ambit of section 27 of the evidence act was analysed in great detail and it was concluded in para 12 as follows. true,such information is admissible in evidence under section 27 of the evidence act,but admissibility alone would not render the evidence,pertaining to the above information,reliable. while testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused. the alleged statement made by the accused led to discovery of knife,bloodstained clothes,rope,etc. unfortunately,for the prosecution there is no evidence to show that in fact the wearing apparels containing bloodstains belonged to the accused,save and except the alleged confessional statement. no witness has spoken that those clothes were worn by the accused at any time far less at or about the time of occurrence. it is also to be kept in view that those articles were recovered from the house of p.w.3 and at the initial stage of investigation,p.w.3 himself was one of the suspected person and he was arrested. therefore,the statement of p.w.3 and his mother that those articles were brought by the accused and left in the upstairs room is to be considered with a pinch of salt moreover,there is nothing to indicate that in fact the bloodstained clothes and rope had tallied with the blood grouping of the deceased. the knife did not contain any bloodstain. therefore,the aspect relating to recovery of articles from the house of p.w.3 and his mother cannot be considered as a link to complete the chain of circumstantial evidence. the evidence of p.ws.17,18 and 19 is relevant. since the golden jewellery had been molten and were recovered in the shape of ingots,it would be very hazardous to come to the conclusion that in fact the golden jewellery belonged to the deceased. if the accused had killed the deceased and stolen those golden jewellery,there is no reason as to why he had also not taken ear rings from the deceased. the fact that ear rings were on the dead body is admitted by the prosecution. the fact that there had been a statement allegedly made by p.w.1 leading to recovery of a parallel key from the dash board of the car of p.w.1,cannot be lost sight of. it is of course true that the prosecution has tried to exonerate p.w.1 by adducing evidence through p.ws.36 and 39 to the effect that immediately after recovery of the dead body,p.w.40 had taken two such keys,thus contradicting the alleged confession of p.w.1. however,the very suspicious role of p.w.40,who apparently was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after 5 months. law is well settled that when the prosecution relies upon circumstantial evidence,all the links in the chain of circumstances must be complete and should be proved through cogent evidence when the judgment of the high court is analysed in the background of what has been stated by this court as regards circumstantial evidence,the inevitable conclusion is that the impugned judgment of the high court does not suffer from any infirmity to warrant interference. STATUTE section 302 ipc, 1860.

the state of manipur is in appeal before us questioning the judgment and order dated 29 07 2005 passed by a division bench of the guwahati high court in wa nos 61787995 and 100 of 1999 upholding a judgment and order of a learned single judge of the said court dated 19 02 1999 in c r nos 32410125681022 and 1023 of 1998. one shri a j tayeng was the revenue commissioner of government of manipur. the state of manipur had not framed any recruitment rules for appointment inter alia in the revenue department and in particular the field staff thereof. the commissioner of revenue department was conferred with a power of being the cadre controlling authority for non ministerial post of the revenue department. he was also to be the chairman of the departmental promotion committee for non ministerial post of the revenue department. the commissioner allegedly made certain appointments in the posts of mandols process servers and zilladars which was not within the knowledge of the state. the said appointments were made on temporary basis. appointments were made on 11 09 199722 11 1997 and 5 12 1997 a sample copy of the offer of appointment reads as under no 11497 com rev on the recommendation of d p c and under the directives issued by the honourable gauhati high court the following persons are hereby appointed as mandols on temporary basis in the scale of pay of rs 950 20 1150 eb 25 1400 per month with usual allowances against thereto existing clear vacancies of mandals under revenue department from the date of their joining on duties. 2 further they are posted at the places indicate against their names 3 the expenditure is debitable under appropriate heads of accounts of the departments offices concerned. no record in regard to the said recruitments was maintained. an inquiry was therefore made to find out the authority which had issued the said offers of appointments. shri tayeng by a uo note dated 12 01 1998 denied to have made such an appointment stating confidential u o no 21593 com r pt. imphal the 12th jan. 1998 sub submission of report. with reference to the u o letter no 21593 comr pt. dated 6th january1998 regarding the alleged appointment of ad hoc regular appointment to the post of lambus mandols. etc of. the honourable minister revenuei am to say that i am not all aware of such appointments made by me except for 3 lambus who were kept in panel for appointment and accordingly the s o revenue. shri robert shaiza was instructed to take care. i therefore deny making of such appointments. on the other hand md. a r khan secretary revenue has made many appointments of mandols process servers zilladars in the recent months against which i have been complaining that the secretary revenue has no power or authority to make any appointments of field staff as per rules provided under m l r act1960 in this regard i have apprised the matter to the honourable minister revenue already and also informed the chief secretary manipur explaining that the secretary revenue can not make such appointments of field staffs even if he wanted to do so all the relevant files should have been routed through the undersigned so that the same may be brought to the notice of the honourable minister revenue his action has created lots of misunderstanding and confusion. he has been making false and wrong allegations against the commissioner revenue and putting him false position. it is for this reason i have been writing to all the deputy commissioners in the districts even by sending w t messages clarifying the actual position of making any appointment of revenue field staff. i still deny that i have made any appointment of field staffs of revenue department during the recent months. submitted for information and consideration. sd 12198 annayok j tayeng. commissioner revenue. govt of manipur minister revenue. in view of the aforementioned stand taken by the said shri tayeng the offers of appointment issued in favour of the respondents were cancelled by an order dated 17 02 1998 a corrigendum thereto was however issued on 21 02 1998 stating no 21593 comrev. temp i please read as august97 in place of october97 occurring in the 4th line of this government order no 21593 comrev. temp i dated 17 2 1998. in civil appeal arising out of slp c no 19375 19376 of 2005the respondents were appointed on ad hoc basis for a period of six months. their appointments were also cancelled on similar grounds. the respondents herein filed writ petitions before the high court on 4 06 1998 questioning the said order of cancellation of their appointments. the said shri tayeng retired on 28 02 1998 despite the fact that he in his uo note dated 12 02 1998 addressed to the minister of revenue denied to have made any appointment when approached by the writ petitioners respondents he affirmed in their support an affidavit in the high court stating 3 that while i was functioning as revenue commissioner manipur matters relating to appointment on the recommendation of the d p c transfer etc were put up to me in files and i used to pass order on the basis of facts presented to me in file. i also issued appointment order under my signature. after my retirement from service i have no access to such files. as stated above i was transferred and posted to the manipur electronics development corporation during 1997. 4 that after my retirement some of the writ petitioners civil rule no 568 of 1998came to me and show copy of the writ petition and the counter affidavit of the respondent no 12 and 3 i have gone through the copy of the writ petition and the counter affidavit and annexures thereto. the xerox copy of the cyclostyled appointment order bearing no 11497. com rev dated 11 9 97 annexure a1 to the writ petition appointing 3 persons to the post of mandol and no 11497 com rev. dated 11 9 97 annexure a2 to the writ petition appointing 4 persons to the post of mandol are perused by me minutely. i submit that these appointment orders annexures a1 and a2 bear my signature initial and appear to have been issued under my signature. it appears that the appointment orders were issued after complying the formalities prescribed there for which can be ascertained from the relevant official file. since i have retired from service i have no access to the file and do not know what might have been in the file and where is the file. verified that the above statements are true to the best of my knowledge and no part of it is false. the writ petitions filed by the respondents herein were allowed by a learned single judge of the high court opining i the principles of natural justice having not been complied with the impugned orders can not be sustained. whereas in the impugned order the appointments of the respondents were said to have been passed without the knowledge of the administrative department revenue department in the counter affidavit it was stated that no records were available in respect thereof and thus the said plea being inconsistent with each other the orders of cancellation of appointment would be bad in law in the light of a decision of this court in mohinder singh gill and anr v. chief election commissioner delhi and ors air 1978 sc 851 1977 indlaw sc 53. however it was observed however it is further made clear that the state respondent are at liberty to initiate or take up any appropriate legal action in the matter pertaining to their alleged fake appointments in their respective posts in accordance with law and pass necessary order after affording reasonable opportunity of being heard to them. so far as the matter relating to civil appeal arising out of slp c no 19375 19376 of 2005 is concerned it was directed that as the appointment of the respondents were made for a period of six months the employees were only entitled to the salary for the said period. the writ appeals preferred there against by the appellants herein were dismissed. mr jaideep gupta learned senior counsel appearing on behalf of the appellants would submit that the high court went wrong in passing the impugned judgment insofar as it failed to take into consideration that in a case of this nature it was not necessary to comply with the principles of natural justice. strong reliance in this behalf has been placed on kendriya vidyalaya sangathan and others v ajay kumar das and others 2002 4 scc 503 2002 indlaw sc 287. it was argued that the question as to whether appointments were made without the knowledge of the department or for that matter whether any record was available there for was of not much significance as in effect and substance they lead to the same inference and in that view of the matter the decision of this court in mohinder singh gill 1977 indlaw sc 53 supra was not attracted. s b sanyal learned counsel appearing on behalf of the respondents on the other hand would submit that the question as to whether the appointments of the respondents were nullities or not having not been raised before the high court this court should not permit the appellants to raise the said contention at this stage. the learned counsel would submit that even in a case of this nature it was incumbent upon the appellants to comply with the principles of natural justice. strong reliance in this behalf has been placed on parshotam lal dhingra v union of india. air 1958 sc 36 1957 indlaw sc 103murugayya udayar and another. v kothampatti muniyandavar temple by trustee pappathi ammal. 1991 supp 1 scc 331 1991 indlaw sc 904 and kumari shrilekha vidyarthi and others v state of u p and others 1991 1 scc 212 1990 indlaw sc 463. the state while offering appointments having regard to the constitutional scheme adumbrated in arts 14 and 16 of the constitution of india must comply with its constitutional duty subject to just and proper exceptions to give an opportunity of being considered for appointment to all persons eligible there for. the posts of field staffs of the revenue department of the state of manipur were thus required to be filled up having regard to the said constitutional scheme. we would proceed on the assumption that the state had not framed any recruitment rules in terms of the proviso appended to art 309 of the constitution of india but the same by itself would not clothe the commissioner of revenue to make recruitments in violation of the provisions contained in arts 14 and 16 of the constitution of india. the offers of appointment issued in favour of the respondents herein were cancelled inter alia on the premise that the same had been done without the knowledge of the revenue department of the state. no records there for were available with the state. as noticed hereinbefore an inquiry had been made wherein the said shri tayeng the then commissioner of revenue stated that no such appointment had been made to his knowledge. the state proceeded on the said basis. the offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non est in the eye of law. the purported appointment letters were fake ones. they were not issued by any authority competent therefor. if the offers of appointments issued in favour of the respondents herein were forged documents the state could not have been compelled to pay salaries to them from the state exchequer. any action which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework would not be binding on the state. in any event having regard to the fact that the said authority himself had denied to have issued a letter there was no reason for the state not to act pursuant thereto or in furtherance thereof. the action of the state did not thus lack bonafide. moreover it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. they had inter alia prayed for issuance of a writ of or in the nature of mandamus. it was thus for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. with a view to establish their legal rights to enable the high court to issue a writ of mandamus the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in arts 14 and 16 of the constitution of india. they have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. it has also not been shown that the vacancies had been notified to the employment exchange. the commissioner furthermore was not the appointing authority. he was only a cadre controlling authority. he was merely put a chairman of the dpc for non ministerial post of the revenue department. the term dpc would ordinarily mean the departmental promotion committee. the respondents had not been validly appointed and in that view of the matter the question of their case being considered for promotion and or recruitment by the dpc did not and could not arise. even assuming that dpc would mean selection committee there is noting on record to show who were its members and how and at whose instance it was constituted. the commissioner as noticed hereinbefore was the chairman of the dpc how the matter was referred to the dpc has not been disclosed. even the affidavit affirmed by shri tayeng before the high court in this behalf is silent. the appointing authority in absence of any delegation of power having been made in that behalf was the state government. the government order dated 12 01 1998 did not delegate the power of appointment to the commissioner. he therefore was wholly incompetent to issue the appointment letters. the respondents therefore in our opinion were not entitled to hold the posts. in a case of this nature where the facts are admitted the principles of natural justice were not required to be complied with particularly when the same would result in futility. it is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf the principles of natural justice are required to be complied with in view of the decision of this court in murugayya udayar 1991 indlaw sc 904 supra. we as noticed hereinbefore do not know as to under what circumstances the orders of appointments were issued. the said decision is not an authority for the proposition that the principles of natural justice are required to be complied with in all situations. in kumari shrilekha vidyarthi 1990 indlaw sc 463 suprathis court was dealing with a question in regard to continuance of the law officers. the question which arose herein was not raised. it was held 34 in our opinion the wide sweep of art 14 undoubtedly takes within its fold the impugned circular issued by the state of u p in exercise of its executive power irrespective of the precise nature of appointment of the government counsel in the districts and the other rights contractual or statutory which the appointees may have. it is for this reason that we base our decision on the ground that independent of any statutory right available to the appointees and assuming for the purpose of this case that the rights flow only from the contract of appointment the impugned circular issued in exercise of the executive power of the state must satisfy art 14 of the constitution and if it is shown to be arbitrary it must be struck down. however we have referred to certain provisions relating to initial appointment termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines followed by the state of u p for a long time. this too is relevant for deciding the question of arbitrariness alleged in the present case. 35 it is now too well settled that every state action in order to survive must not be susceptible to the vice of arbitrariness which is the crux of art 14 of the constitution and basic to the rule of law the system which governs us. arbitrariness is the very negation of the rule of law. satisfaction of this basic test in every state action is sine qua non to its validity and in this respect the state can not claim comparison with a private individual even in the field of contract. this distinction between the state and a private individual in the field of contract has to be borne in the mind. we in the facts and circumstances of this case do not see any arbitrariness on the part of the state in its action directing cancellation of appointments. we may on the other hand notice that kumari shrilekha vidyarthi 1990 indlaw sc 463 supra has been distinguished by this court in state of u p and others v u p state law officers association and others 1994 2 scc 204 1994 indlaw sc 1289 stating the reliance placed by the respondents in this behalf on shrilekha vidyarthi v state of u p 1990 indlaw sc 463 is misplaced for the obvious reason that the decision relates to the appointment of the district government counsel and the additional assistant district government counsel who are the law officers appointed by the state government to conduct civil criminal and revenue cases in any court other than the high court. their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice opinions of the district magistrate and the district judge and also after taking into consideration their character and conduct. their appointment is in the first instance for one year. it is only after their satisfactory performance during that period that a deed of engagement is given to them and even then the engagement is to be for a term not exceeding three years. the renewal of their further term again depends upon the quality of work and conduct capacity as a lawyer professional conduct public reputation in general and character and integrity as certified by the district magistrate and the district judge. for the said purpose the district magistrate and the district judge are required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. his work is also subject to strict supervision. the shortcomings in the work are required to be brought to the notice of the legal remembrancer. it will thus be seen that the appointment of the two sets of officers viz. the government counsel in the high court with whom we are concerned and the district government counsel with whom the said decision was concerned are made by dissimilar procedures. the latter are not appointed as a part of the spoils system. having been selected on merit and for no other consideration they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. the people are interested in their continuance for the period of their contracts and in their non substitution by those who may come in through the spoils system. it is in these circumstances that this court held that the wholesale termination of their services was arbitrary and violative of art 14 of the constitution. the ratio of the said decision can hardly be applied to the appointments of the law officers in the high court whose appointment itself was arbitrary and was made in disregard of art 14 of the constitution as pointed out aboveemphasis added. in parshotam lal dhingra 1957 indlaw sc 103. suprathis court held that whoever holds civil posts would be entitled to protection of their services in terms of cl 2 of art 309 of the constitution of india in the event any disciplinary action is taken against them stating the underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. cl 2 protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. it will be noted that in cl 1 the words dismissed and removed have been used while in cl 2. the words dismissed removed and reduced in rank have been used. the two protections are 1 against being dismissed or removed by an authority subordinate to that by which the appointment had been made and 2 against being dismissed removed or reduced in rank without being heard. what then is the meaning of those expressions dismissed removed or reduced in rank. it has been said in jayanti prasad v state of uttar pradesh 1951 indlaw all 27 that these are technical words used in cases in which a persons services are terminated by way of punishment. those expressions it is urged have been taken from the service rules where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of article in dhirender singh and others v state of haryana and others 1997 2 scc 712 1996 indlaw sc 1725termination of an order of promotion in favour of the appellant was not interfered with by this court as the same had not been approved by the dig being the competent authority. in m c mehta v union of india and others 1999 6 scc 237 1999 indlaw sc 1396this court developed the useless formality theory stating more recently lord bingham has deprecated the useless formality theory in r v. chief constable of the thames valley police forces ex p cotton by giving six reasons see also his article should public law remedies be discretionary. 1991 pl64. a detailed and emphatic criticism of the useless formality theory has been made much earlier in natural justice substance or shadow by prof d h clark of canada 1975 pl27 63 contending that malloch and glynn were wrongly decided. foulkes craig and others say that the court can not prejudge what is to be decided by the decision making authority de smith says courts have not yet committed themselves to any one view though discretion is always with the court. wade says that while futile writs may not be issued a distinction has to be made according to the nature of the decision. thus in relation to cases other than those relating to admitted or indisputable facts there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. we may however point out that even in cases where the facts are not all admitted or beyond dispute there is a considerable unanimity that the courts can in exercise of their discretion refuse certiorari prohibition mandamus or injunction even though natural justice is not followed. we may also state that there is yet another line of cases as in state bank of patiala v s k sharma rajendra singh v state of m p 1994 indlaw mp 48 that even in relation to statutory provisions requiring notice a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. in the former case it can be waived while in the case of the latter it can not be waived. in kendriya vidyalaya sangathan 2002 indlaw sc 287 suprait was held it is clear that if after the termination of services of the said dr k c rakesh the orders of appointment are issued such orders are not valid. if such appointment orders are a nullity the question of observance of principles of natural justice would not arise. in bar council of india v high court of kerala 2004 6 scc 311 2004 indlaw sc 340it was stated principles of natural justice however cannot be stretched too far. their application may be subject to the provisions of a statute or statutory rule. in r s garg v state of u p and others 2006 6 scc 430 2006 indlaw sc 801it was stated a discretionary power as is well known can not be exercised in an arbitrary manner. it is necessary to emphasize that the state did not proceed on the basis that the amendment to the rules was not necessary. the action of a statutory authority as is well known must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor. the same can not be supplemented by fresh reasons in the shape of affidavit or otherwise. for the reasons aforementioned the impugned judgments can not be sustained. they are set aside accordingly. the appeals are allowed. no costs. appeal allowed.

FACTS one shri a.j.tayeng was the revenue commissioner of government of manipur. the state of manipur had not framed any recruitment rules for appointment inter alia in the revenue department and in particular the field staff thereof. the commissioner of revenue department was conferred with a power of being the cadre controlling authority for non-ministerial post of the revenue department. he was also to be the chairman of the departmental promotion committee for non-ministerial post of the revenue department. the commissioner allegedly made certain appointments in the posts of mandols,process-servers and zilladars which was not within the knowledge of the state. the said appointments were made on temporary basis. his action has created lots of misunderstanding and confusion. he has been making false and wrong allegations against the commissioner (revenue) and putting him false position. the respondents were appointed on ad hoc basis for a period of six months.their appointments were also cancelled on similar grounds. ARGUMENT in a case of this nature it was not necessary to comply with the principles of natural justice. as to whether appointments were made without the knowledge of the department or for that matter whether any record was available there for was of not much significance as in effect and substance they lead to the same inference. ISSUE the respondents herein filed writ petitions before the high court on 4.06.1998 questioning the said order of cancellation of their appointments. ANALYSIS the state while offering appointments,having regard to the constitutional scheme adumbrated in arts.14 and 16 of the constitution of india,must comply with its constitutional duty,subject to just and proper exceptions,to give an opportunity of being considered for appointment to all persons eligible there for. the state had not framed any recruitment rules in terms of the proviso appended to art.309 of the constitution of india but the same by itself would not clothe the commissioner of revenue to make recruitments in violation of the provisions contained in arts.14 and 16 of the constitution of india. the offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non-est in the eye of law. the purported appointment letters were fake ones. if the offers of appointments issued in favour of the respondents herein were forged documents,the state could not have been compelled to pay salaries to them from the state exchequer. any action,which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework,would not be binding on the state. in any event,having regard to the fact that the said authority himself had denied to have issued a letter,there was no reason for the state not to act pursuant thereto or in furtherance thereof. the action of the state did not,thus,lack bonafide. with a view to establish their legal rights to enable the high court to issue a writ of mandamus,the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in arts.14 and 16 of the constitution of india. they have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. it has also not been shown that the vacancies had been notified to the employment exchange. the commissioner furthermore was not the appointing authority. even assuming that dpc would mean selection committee,there is nothing on record to show who were its members and how and at whose instance it was constituted. the appointing authority,in absence of any delegation of power having been made in that behalf,was the state government. the government order did not delegate the power of appointment to the commissioner. he,therefore,was wholly incompetent to issue the appointment letters. where the facts are admitted,the principles of natural justice were not required to be complied with,particularly when the same would result in futility. it is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf,the principles of natural justice are required to be complied with. in kumari shrilekha vidyarthi 1990 indlaw sc 463 (supra), it was held that the wide sweep of art.14 undoubtedly takes within its fold the impugned circular issued by the state of u.p.in exercise of its executive power,irrespective of the precise nature of appointment of the government counsel in the districts and the other rights,contractual or statutory,which the appointees may have. it is for this reason that we base our decision on the ground that independent of any statutory right,available to the appointees,and assuming for the purpose of this case that the rights flow only from the contract of appointment,the impugned circular,issued in exercise of the executive power of the state,must satisfy art.14 of the constitution and if it is shown to be arbitrary,it must be struck down. this too is relevant for deciding the question of arbitrariness alleged in the present case. in m.c.mehta v.union of india and others [(1999) 6 scc 237 1999 indlaw sc 1396],this court developed the "useless formality" theory stating: "more recently lord bingham has deprecated the useless formality theory in r.v.chief constable of the thames valley police forces,ex p cotton by giving six reasons. a detailed and emphatic criticism of the useless formality theory has been made much earlier in natural justice,substance or shadow by prof.d.h.clark of canada (1975 pl,27 63) contending that malloch and glynn were wrongly decided.foulkes,craig and others say that the court cannot prejudge what is to be decided by the decision-making authority.de smith says courts have not yet committed themselves to any one view though discretion is always with the court. wade says that while futile writs may not be issued,a distinction has to be made according to the nature of the decision. thus,in relation to cases other than those relating to admitted or indisputable facts,there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. in kendriya vidyalaya sangathan 2002 indlaw sc 287 (supra),it was held: "it is clear that if after the termination of services of the said dr.k.c.rakesh,the orders of appointment are issued,such orders are not valid.if such appointment orders are a nullity,the question of observance of principles of natural justice would not arise. in bar council of india v.high court of kerala [(2004) 6 scc 311 2004 indlaw sc 340],it was stated that principles of natural justice,however,cannot be stretched too far and their application may be subject to the provisions of a statute or statutory rule. STATUTE article 15 and 16 of the constitution of india.

FACTS one shri a.j.tayeng was the revenue commissioner of government of manipur. the state of manipur had not framed any recruitment rules for appointment inter alia in the revenue department and in particular the field staff thereof. the commissioner of revenue department was conferred with a power of being the cadre controlling authority for non-ministerial post of the revenue department. he was also to be the chairman of the departmental promotion committee for non-ministerial post of the revenue department. the commissioner allegedly made certain appointments in the posts of mandols,process-servers and zilladars which was not within the knowledge of the state. the said appointments were made on temporary basis. appointments were made on 11.09.1997,22.11.1997 and 5.12.1997. his action has created lots of misunderstanding and confusion. he has been making false and wrong allegations against the commissioner (revenue) and putting him false position. the respondents were appointed on ad hoc basis for a period of six months. their appointments were also cancelled on similar grounds. ARGUMENT in a case of this nature it was not necessary to comply with the principles of natural justice. as to whether appointments were made without the knowledge of the department or for that matter whether any record was available there for was of not much significance as in effect and substance they lead to the same inference. ISSUE the respondents herein filed writ petitions before the high court on 4.06.1998 questioning the said order of cancellation of their appointments. ANALYSIS the state while offering appointments,having regard to the constitutional scheme adumbrated in arts.14 and 16 of the constitution of india,must comply with its constitutional duty,subject to just and proper exceptions,to give an opportunity of being considered for appointment to all persons eligible there for. the posts of field staffs of the revenue department of the state of manipur were,thus,required to be filled up having regard to the said constitutional scheme. the state had not framed any recruitment rules in terms of the proviso appended to art.309 of the constitution of india but the same by itself would not clothe the commissioner of revenue to make recruitments in violation of the provisions contained in arts.14 and 16 of the constitution of india. the offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non-est in the eye of law. the purported appointment letters were fake ones. they were not issued by any authority competent therefor. if the offers of appointments issued in favour of the respondents herein were forged documents,the state could not have been compelled to pay salaries to them from the state exchequer. any action,which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal framework,would not be binding on the state. in any event,having regard to the fact that the said authority himself had denied to have issued a letter,there was no reason for the state not to act pursuant thereto or in furtherance thereof. the action of the state did not,thus,lack bonafide. with a view to establish their legal rights to enable the high court to issue a writ of mandamus,the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in arts.14 and 16 of the constitution of india. they have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. it has also not been shown that the vacancies had been notified to the employment exchange. the commissioner furthermore was not the appointing authority. he was only a cadre controlling authority. he was merely put a chairman of the dpc for non-ministerial post of the revenue department. even assuming that dpc would mean selection committee,there is nothing on record to show who were its members and how and at whose instance it was constituted. the appointing authority,in absence of any delegation of power having been made in that behalf,was the state government. the government order did not delegate the power of appointment to the commissioner. he,therefore,was wholly incompetent to issue the appointment letters. where the facts are admitted,the principles of natural justice were not required to be complied with,particularly when the same would result in futility. it is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf,the principles of natural justice are required to be complied with. in kumari shrilekha vidyarthi 1990 indlaw sc 463 (supra), it was held that the wide sweep of art.14 undoubtedly takes within its fold the impugned circular issued by the state of u.p.in exercise of its executive power,irrespective of the precise nature of appointment of the government counsel in the districts and the other rights,contractual or statutory,which the appointees may have. it is for this reason that we base our decision on the ground that independent of any statutory right,available to the appointees,and assuming for the purpose of this case that the rights flow only from the contract of appointment,the impugned circular,issued in exercise of the executive power of the state,must satisfy art.14 of the constitution and if it is shown to be arbitrary,it must be struck down. however,we have referred to certain provisions relating to initial appointment,termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines,followed by the state of u.p.,for a long time. this too is relevant for deciding the question of arbitrariness alleged in the present case. in m.c.mehta v.union of india and others [(1999) 6 scc 237 1999 indlaw sc 1396],this court developed the "useless formality" theory stating: "more recently lord bingham has deprecated the useless formality theory in r.v.chief constable of the thames valley police forces,ex p cotton by giving six reasons. a detailed and emphatic criticism of the useless formality theory has been made much earlier in natural justice,substance or shadow by prof.d.h.clark of canada (1975 pl,27 63) contending that malloch and glynn were wrongly decided.foulkes,craig and others say that the court cannot prejudge what is to be decided by the decision-making authority.de smith says courts have not yet committed themselves to any one view though discretion is always with the court. wade says that while futile writs may not be issued,a distinction has to be made according to the nature of the decision. thus,in relation to cases other than those relating to admitted or indisputable facts,there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. in kendriya vidyalaya sangathan 2002 indlaw sc 287 (supra),it was held: "it is clear that if after the termination of services of the said dr.k.c.rakesh,the orders of appointment are issued,such orders are not valid.if such appointment orders are a nullity,the question of observance of principles of natural justice would not arise. in bar council of india v.high court of kerala [(2004) 6 scc 311 2004 indlaw sc 340],it was stated that principles of natural justice,however,cannot be stretched too far and their application may be subject to the provisions of a statute or statutory rule. STATUTE article 15 and 16 of the constitution of india.

this is an appeal on a certificate article 1331 of theconstitution from a judgment and decree passed by the appellate bench of the high court of calcutta. modifying on appeal the judgment and decree passed by mr justice bose on the original side of that court. one dwarka nath ghose was the owner of considerable moveable and immoveable properties. on the 10th june 1891 he made and published his last will and testament whereby he dedicated to this family idol. shree shree iswar sridhar jew his two immoveable properties to wit. premises. No 41 and No 401. grey street in the city of calcutta. he appointed his two sons rajendra and jogendra executors of ms will and provided that his second wife golap sundari and the two sons rajendra and jogendra should perform the seva of the deity and on their death their heirs and successors would be entitled to perform the seva. dwarka nath died on the 16th march 1892 leaving him surviving his widow golap sundari and his two sons rajendra and jogendra. on the 19th july 1899 rajendra made and published his last will and testament whereby he confirmed the dedication made by dwarka nath with regard to premises nos. 41 and 401 grey street and appointed his brother jogendra the sole executor thereof. he died on the 31st january1900 and jogendra obtained on the 24th april 1900. probate of his said will. probate of the will of dwarka nath was also obtained by jogendra on the 31st august 1909. on the 4th september 1909 bhupendra jnanendra. and nagendra then a minor the three sons of rajendra filed a suit being suit No 969 of 1909on. the original side of the high court at calcutta against jogendra golap sundari and padma dassi the widow of sidheswar another son of rajendra for the construction of the wills of dwarka nath and rajendra for partition and other reliefs. the idol was not made a party to this suit. the said suit was compromised and on the 24th november 1910 a consent decree was passed whereby jogendra and golap sundari gave up their rights to the sevayatship and bhupendra jnanendra and nagendra became the sevaits of the idol a portion of the premises. 41 grey street was allotted to the branch of rajendra and the remaining portion was allotted to jogendra absolutely and in consideration of a sum of rs 6500 to be paid to the plaintiffs jogendra was declared entitled absolutely to the premises. No 401. grey street. the portions allotted to jogendra were subsequently numbered 402 a grey street and the portion of the premises. 41 grey street allotted to the branch of rajendra was subsequently numbered 41 a grey street. jogendra died on the 5th august 1911 leaving a will whereby he appointed his widow sushilabala the executrix thereof. she obtained probate of the will on the 6th august 1912. disputes arose between bhupendra jnanendra and nagendra the sons of rajendra and one kedar nath ghosh was appointed arbitrator to settle those disputes. the arbitrator made his award dated the 12th october 1920 whereby he allotted premises No 41 a grey street exclusively to nagendra as his share of the family properties. nagendra thereafter executed several mortgages of the said premises. the first mortgage was created by him in favour of snehalata dutt on the 19th may 1926. the second mortgage was executed on the 4th june 1926 and the third mortgage on the 22nd february 1927. on the 23rd february 1927 nagendra executed a deed of settlement of the said premises by which he appointed his wife labanyalata and his wife 's brother samarendra nath mitter trustees to carry out the directions therein contained and in pursuance of the deed of settlement he gave up possession of the said premises in favour of the trustees. snehalata dutt filed in the year 1929 a suit being suit No 1042 of 1929 against nagendra the trustees under the said deed of settlement and the puisne mortgagees for realisation of the mortgage security. a consent decree was passed in the said suit on the 9th september 1929. nagendra died in june 1931 and the said premises were ultimately put up for sale in execution of the mortgage decree and were purchased on the 9th december 1936 by hari charan dutt. hari pada. dutt and durga charan dutt for a sum of rs 19000. a petition made by the purchasers on the 12th january 1937 for setting aside the sale was rejected by the court on the 15th march 1937. haripada dutt died on the 3rd june 1941 leaving him surviving his three sons pashupati nath dutt shambhunath dutt and kashinath dutt the appellants before us. haricharan dutt conveyed ms one third share in the premises to them on the 4th march1944 and durga charan dutt conveyed his one third share to them on the 3rd may 1946. they thus became entitled to the whole of the premises which had been purchased at the auction sale held on the 9th december 1936. on the 19th july 1948 the family idol of dwarka nath sree sree iswar sridhar jew by its next friend debabrata ghosh the son of nagendra filed the suit out of which the present appeal arises against the appellants as also against susilabala and the two sons of jogendra by her amongst others for a declaration that the premises nos. 41 a and 402 a grey street were its absolute properties and for possession thereof for a declaration that the consent decree dated the 24th november 1910 in suit No 969 of 1909 and the award dated the 12th october 1920 and the dealings made by the heirs of jogendra. andor rajendra relating to the said premises or any of them purporting to affect its rights in the said premises were invalid and inoperative in law and not binding on it for an account of the dealings with the said premises for a scheme of management of the debutter properties and for its worship for discovery receiver injunction and costs. written statements were filed by the appellants and by susilabala and the two sons of jogendra denying the claims of the idol and contending inter alia that there was no valid or absolute dedication of the suit properties i to the idol and that the said premises had been respectively acquired by them by adverse possession and that the title of the idol thereto had been extinguished. the said suit was heard by mr justice bose who declared the premises. No 41 a. grey street to be the absolute property of the idol and made the other declarations in favour of the idol as prayed for. the idol was declared entitled to possession of the said premises with mesne profits for three years prior to the institution of the suit till delivery of possession but was ordered to pay as a condition for recovery of possession of the said premises a sum of rs 19000 to the appellants with interest thereon at the rate of 6 per cent. per annum from the 19th july 1945 till payment or till the said sum was deposited in court to the credit of the suit. the learned judge however dismissed the suit of the idol in regard to the premises. No 402 a grey street as in his opinion sushilabala as executrix to her husband 's estate and her two sons had acquired title to the said premises by adverse possession and the title of the idol thereto had been extinguished. the appellants filed on the 18th august 1950 an appeal against this judgment being appeal No 118 of 1950. the idol filed on the 20th november 1950 cross objections against the decree for rs 19000 and interest thereon as also the dismissal of the suit in regard to the premises. the appeal and the cross objections came on for hearing before harries c j and section n banerjee j who delivered judgment on the 5th march 1951 dismissing the said appeal and allowing the cross objection in regard to rs 19000 filed by the idol against the appellants. in regard however to the cross objection relating to premises. grey street which was directed against sushilabala and the two sons of jogendra the learned judges held that the cross objection against the co respondents was not maintainable and dismissed the same with costs. the appellants filed on the 31st may 1951 an application for leave to prefer an appeal to this court against the said judgment and decree of the high court at calcutta. a certificate article 1331 of theconstitution was granted on the 4th june 1951 and the high court admitted the appeal finally on the 6th august 1951. on the 22nd november 1951 the idol applied to the high court for leave to file cross objections against that part of the judgment and decree of the high court which dismissed its claims with regard to the premises no 402 a grey street. the high court rejected the said application stating that there was no rule allowing cross objections in the supreme court. the said cross objections were however printed as additional record. by an order made by this court on the 24th may 1953 the petition of the idol for filing cross objections in this court was allowed to be treated as a petition for special leave to appeal against that part of the decree which was against it subject to any question as to limitation. the appeal as also the petition for special leave to appeal mentioned above came on for hearing and final disposal before us. the appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties. the petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idol 's claim to the premises No 402 a. the appeal is concerned only with the premises. it was contended on behalf of the appellants that the dedication of the premises. 41 grey street made by dwarka nath under the terms of his will was a partial dedication and that his sons rajendra and jogendra and his widow golap sundari who were appointed sevayats of the idol were competent to deal with premises. No 41. grey street after making the due provision for the idol as they purported to do by the terms of settlement dated the 24th november 1910. it was further contended that nagendra by virtue of the award dated the 12th october 1920 claimed to be absolutely entitled to the premises. grey street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguishing the right of the idol to the said premises. the first contention of the appellants is clearly untenable on the very language of the will of dwarka nath. 3 of the said will provided with a view to provide a permanent habitation for the said deity i do by means of this will dedicate the aforesaid immovable property the said house. No 41 grey street together with land thereunder to the said sri sri issur sridhar jew. with a view to provide for the expenses of his daily and periodical sheba and festivals etc. the 3 12 cattahs three and half cattahs of rent free land more or less that i have on that very. grey street No 401. his also i dedicate to the sheba of the said sri sri sridhar jew salagram sila thakur. on my demise none of my heirs and representatives shall ever be competent to take the income of the said land No 401 and spend the samefor household expenses. if there be any surplus left after defraying the debsheba expenses the same shall be credited to the said sridhar jew thakur 's fund and with the amount so deposited repairs etc from time to time will be effected to the said house. No 41 with a view to preserve it and the taxes etc. in respect of the said two properties will be paid for the purpose of the carrying on the daily and periodical sheba and the festivals etc of the said sri issur sridhar jew salagram sila thakur my said second wife srimati golap moni dasi and 1st sriman rajendara nath and 2nd sriman jogendra nath ghose born of the womb of my first wife on living in the said house. No 41 grey street dedicated by me shall properly and agreeably to each other perform the sheba. of the said sri sri issur sridhar jew salagram sila thakur and on the death of my said two sons their representatives successors and heirs shall successively perform the sheba in the aforesaid manner and the executors appointed by this will of mine having got the said two properties registered in the calcutta municipality in the name of the said sri sri issur sridhar jew thakur shall pay the municipal taxes etc. and shall take the municipal bills in his name. none of my representatives heirs successors executors administrators or assigns shall have any manner of interest in or right to the said two debutter properties and no one shall ever be competent to give away or effect sale mortgage or in respect of the said two properties nor shall the said two properties be sold on account of the debts of any one. t is quite true that a dedication may be either absolute or partial. the property may be given out and out to the idol or it may be subjected to a charge in favour of the idol. the question whether the idol itself shall be considered the true beneficiary subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep or that on the other hand these heirs shall be considered the true beneficiaries of the property subject to a charge for the upkeep worship and expenses of the idol is a question which can only be settled by a conspectus of the entire provisions of the will pande har narayan v surja kunwari 1921 l r 48 i a 143 145 146 1921 indlaw pc 56. what we find here in cl. 3 of the will is an absolute dedication of the premises. grey street to the idol as its permanent habitation with only the right given to the sevayats to reside in the said premises for the purposes of carrying on the daily and periodical seva and the festivals etc. of the deity. the said premises are expressly declared as dedicated to the deity. they are to be registered in the municipal records in the name of the deity the municipal bills have got to be taken also in his name and none of the testator 's representatives heirs successors executors administrators or assigns is to have any manner of interest in or right to the said premises or is to be competent to give away or effect sale mortgage etc. of the said premises. there is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. the only thing which was urged by shri n c chatterjee in support of his contention was that the right to reside in the premises was given to the sevayats and that according to him detracted from the absolute character of the dedication. this argument however can not avail the appellants. it was observed by lord buckmaster in delivering the judgment of the privy council in gnanendra nath das v surendra nath das 1920 24 c w n 1926 at p 1030. in that case it is provided that the shebait for the time being shall be entitled to reside with his family in the said dwelling house but the dwelling house itself is the place specially set apart for the family idols to which specific reference is made in the will and in their lordships opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling place. the first contention of the appellants therefore fails and we hold that the dedication of the premises. 41 grey street to the idol was an absolute dedication. regards the second contention viz the adverse possession of nagendra it is to be noted that under the terms of cl 3 of the will of dwarka nath the representatives successors and heirs of his two sons rajendra and jogendra were successively to perform the seva in the manner therein mentioned and nagendra was one of the heirs and legal representatives of rajendra. he was no doubt a minor on the 24th november 1910 when the terms of settlement were arrived at between the parties to the suit 1909. his two elder brothers jnanendra and bhupendra were declared to be the then sevayats but a right was reserved to nagendra to join with them as a sevayat on his attaining majority. so far as nagendra is concerned there is a clear finding of fact recorded by mr justice bose on a specific issue raised in that behalf viz did nagendra act as shebait of the plaintiff deity under the wills of dwarka nath ghosh and rajendra nath ghosh. that he did act as such shebait and that his possession of the premises. No 41a grey street was referable to possession on behalf of the idol 30 this finding was not challenged in the appeal court and it is too late to challenge the same before us. if nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner he purported to do after the 12th october 1920 could not be evidence of any adverse possession against the idol. he position of the sevayat and the effect of his dealings with the property dedicated to the idol has been expounded by rankin c j in surendrakrishna ray v shree shree ishwar bhubaneshwari thakuran 1933. cal 54 1932 indlaw cal 59. but in the present case we have to see whether the possession of two joint shebaits becomes adverse to the idol when they openly claim to divide the property between them. the fact of their possession is in accordance with the idol 's title and the question is whether the change made by them in the intention with which they hold evidenced by an application of the rents and profits to their own purposes and other acts extinguishes the idol 's right. i am quite unable to hold that it does because such a change of intention can only be brought home to the idol by means of the shebait 's knowledge and the idol can only react to it by the shebait. adverse possession in such circumstances is a notion almost void of content. true any heir or perhaps any descendant of the founder can bring a suit. against the shebaits on the idol 's behalf and in the present case it may be said that the acts of the shebaits must have i been notorious in the family. but such persons have no legal duty to protect the endowment and until the shebait is removed or controlled by the court he alone can act for the idol. we are in perfect accord with the observations made by rankin c j if a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. the shebait for the time being is the only person competent to safeguard the interests of the idol his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. no shebait can so long as he continues to be the sevait ever claim adverse possession against the idol. neither nagendra nor the appellants who derive their title from the auction sale held on the 9th december 1936 could therefore claim to have perfected their title to the premises. grey street by adverse possession. the second contention of the appellants also therefore fails. the further contention urged on behalf of the appellants in regard to the disallowance of the sum of rs 19000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration. he result therefore is that the appeal fails and must stand dismissed with costs. appeal dismissed.

FACTS one dwarka nath was the owner of considerable moveable and immoveable properties. he made and published his last will and testament whereby he dedicated to this family idol his two immoveable properties. he appointed his two sons rajendra & jogendra as executors of his will and provided that his second wife and the two sons should perform the seva of the deity and on their death their heirs and successors would be entitled to perform the seva. dwarka nath died on leaving him surviving his widow and his two sons. in 1899, rajendra made and published his last will and testament whereby he confirmed the dedication made by dwarka nath and appointed his brother jogendra the sole executor thereof. he died on the 31st january,1900, and jogendra obtained on the 24th april, 1900,. probate of his said will. probate of the will of dwarka nath was also obtained by jogendra on the 31st august, 1909. bhupendra, jnanendra. and nagendra, then a minor, the three sons of rajendra filed a suit, on the high court at calcutta against jogendra, golap sundari and some others for the construction of the wills of dwarka nath and rajendra, for partition and other reliefs. the said suit was compromised and on the 24th november, 1910, a consent decree was passed, whereby jogendra and golap sundari gave up their rights to the sevayatship and bhupendra, jnanendra and nagendra became the sevaits of the idol, a portion of the premises no. 41 grey street was allotted to the branch of rajendra and the remaining portion was allotted to jogendra. disputes arose between bhupendra, jnanendra and nagendra, the sons of rajendra, and one kedar nath was appointed arbitrator to settle those disputes. the arbitrator made his award whereby he allotted premises no. 41-a grey street, exclusively to nagendra as his share of the family properties. nagendra thereafter executed several mortgages of the said premises. nagendra executed a deed of settlement of the said premises by which he appointed his wife and his wife's brother as trustees to carry out the directions therein contained and in pursuance of the deed of settlement he gave up possession of the said premises in favour of the trustees. snehalata dutt filed in the year 1929 a suit, against nagendra, the trustees under the said deed of settlement and the puisne mortgagees, for realisation of the mortgage security. the said premises were ultimately put up for sale in execution of the mortgage decree and were purchased on the 9th december, 1936, by hari charan dutt, hari pada dutt and durga charan dutt. on the 19th july, 1948, the family idol of dwarka nath, sree sree iswar sridhar jew, by its next friend debabrata ghosh, the son of nagendra, filed the suit, out of which the present appeal arises. ARGUMENT the only thing which was urged by shri n. c. chatterjee in support of his contention was that the right to reside in the premises was given to the sevayats and that according to him detracted from the absolute character of the dedication. ISSUE the appeal is concerned only with the premises no. 41-a grey street. ANALYSIS it is quite true that a dedication may be either absolute or partial. what we find here in cl. 3 of the will is an absolute dedication of the premises no. 41 grey street to the idol as its permanent habitation with only the right given to the sevayats to reside in the said premises for the purposes of carrying on the daily and periodical seva and the festivals, etc., of the deity. they are to be registered in the municipal records in the name of the deity. there is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. if nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner he purported to do after the 12th october, 1920, could not be evidence of any adverse possession against the idol.

FACTS one dwarka nath was the owner of considerable moveable and immoveable properties. he made and published his last will and testament whereby he dedicated to this family idol his two immoveable properties. he appointed his two sons rajendra & jogendra as executors of his will and provided that his second wife and the two sons should perform the seva of the deity and on their death their heirs and successors would be entitled to perform the seva. dwarka nath died on leaving him surviving his widow and his two sons. in 1899, rajendra made and published his last will and testament whereby he confirmed the dedication made by dwarka nath and appointed his brother jogendra the sole executor thereof. he died on the 31st january,1900, and jogendra obtained on the 24th april, 1900,. probate of his said will. probate of the will of dwarka nath was also obtained by jogendra on the 31st august, 1909. on the 4th september 1909, bhupendra, jnanendra. and nagendra, then a minor, the three sons of rajendra filed a suit, on the original side of the high court at calcutta against jogendra, golap sundari and some others for the construction of the wills of dwarka nath and rajendra, for partition and other reliefs. the said suit was compromised and on the 24th november, 1910, a consent decree was passed, whereby jogendra and golap sundari gave up their rights to the sevayatship and bhupendra, jnanendra and nagendra became the sevaits of the idol, a portion of the premises no. 41 grey street was allotted to the branch of rajendra and the remaining portion was allotted to jogendra. disputes arose between bhupendra, jnanendra and nagendra, the sons of rajendra, and one kedar nath was appointed arbitrator to settle those disputes. the arbitrator made his award whereby he allotted premises no. 41-a grey street, exclusively to nagendra as his share of the family properties. nagendra thereafter executed several mortgages of the said premises. the first mortgage was created by him in favour of snehalata dutt in may, 1926. the second mortgage was executed on in june, 1926, and the third mortgage on in february, 1927. nagendra executed a deed of settlement of the said premises by which he appointed his wife and his wife's brother as trustees to carry out the directions therein contained and in pursuance of the deed of settlement he gave up possession of the said premises in favour of the trustees. snehalata dutt filed in the year 1929 a suit, against nagendra, the trustees under the said deed of settlement and the puisne mortgagees, for realisation of the mortgage security. the said premises were ultimately put up for sale in execution of the mortgage decree and were purchased on the 9th december, 1936, by hari charan dutt, hari pada dutt and durga charan dutt. on the 19th july, 1948, the family idol of dwarka nath, sree sree iswar sridhar jew, by its next friend debabrata ghosh, the son of nagendra, filed the suit, out of which the present appeal arises. ARGUMENT the only thing which was urged by shri n. c. chatterjee in support of his contention was that the right to reside in the premises was given to the sevayats and that according to him detracted from the absolute character of the dedication. ISSUE the appeal is concerned only with the premises no. 41-a grey street. ANALYSIS it is quite true that a dedication may be either absolute or partial. the property may be given out and out to the idol, or it may be subjected to a charge in favour of the idol. what we find here in cl. 3 of the will is an absolute dedication of the premises no. 41 grey street to the idol as its permanent habitation with only the right given to the sevayats to reside in the said premises for the purposes of carrying on the daily and periodical seva and the festivals, etc., of the deity. they are to be registered in the municipal records in the name of the deity. there is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. if nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner he purported to do after the 12th october, 1920, could not be evidence of any adverse possession against the idol.

this appeal is directed against the judgment and order of the high court of gujarat dated 28 2 1986 allowing the respondent 's writ petition and quashing order of discharge from service and directing his reinstatement in service. the respondent joined service as technical assistant with the gujarat state electricity board hereinafter refined to as the board he was promoted to the post of deputy engineer. while he was posted at surat as deputy engineer he was transferred to ukai subdivision under the order of the superintending engineer dated 29th march1974 pursuant to the order of transfer he was relieved from his duties at surat on 30th march1974 to enable him to join at ukai. he made representation to the additional chief engineer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at ukai. his representation was rejected and he was directed to join at ukai but he did not do so instead he filed a civil suit at baroda challenging validity of the order of transfer. meanwhile the chief engineer by his order dated 27th may1974 discharged the respondent from service with effect from 31st march1974 in accordance with service regulation no 113 the respondent challenged the validity of the order of his discharge from service by means of a writ petition under article 226 of the constitution before the high court of gujarat. a learned single judge of the high court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the respondent before discharging him from services under regulation no 113. the learned single judge granted a declaration in respondent 's favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct of disobedience of the orders of his superior authorities he refused to grant consequential reliefs regarding reinstatement or payment of back wages. the respondent as well as the appellant board both preferred letters patent appeals against the order of learned single judge. a division bench of the high court dismissed the appeal preferred by the appellants but it allowed the respondent 's appeal. the division bench upheld the order of the learned single judge holding the order of discharge illegal and void but it set aside the order of the learned single judge refusing to grant consequential relief instead it directed the appellants to reinstate the respondent and to treat him in service without any break in service and to grant him benefits of increments seniority and promotion to which he may be entitled under the rules. the bench however did not grant full back wages to the respondent instead it directed the board to pay him 50 per cent of back wages. aggrieved the appellant has preferred the instant appeal after obtaining special leave of this court. this appeal came up for hearing before us on 28th january1988 and on that day. sh b k mehta advocate appearing for the appellants and sh. vimal dave advocate appearing for the respondent were fully heard. after hearing learned counsel for the parties we were satisfied that the learned single judge as well as the division bench both had committed error in allowing the writ petition and granting relief to the respondent. we expressed our view in the court and suggested to mr vimal dave counsel for the respondent that if he agreed the original writ petition of the respondent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the high court and of this court as during the pendency of the appeal. the appellants were directed by means of interim order of this court to continue to pay salary to the respondent which was being paid to him regularly. the hearing was adjourned to enable sh. vimal dave to obtain instructions from the respondent. the appeal came up for hearing before us on 16 2 1988 when another counsel appeared to argue the appeal on behalf of the respondent on merits. we refused to hear the counsel as we had already completed hearing. thereupon the respondent himself appeared in person and sought permission to make his submissions personally. we refused to accede to his request as oral heating had already been completed and the matter had been adjourned only to enable the respondent 's counsel to obtain instructions. however in the interest of justice we permitted the respondent to file written submissions if any in support of his case. thereafter the case was listed several times but no written submissions were filed instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other bench. since this was unusual uncalled for and unjustified request we ignored the same and reserved the order. we are constrained to note that instead of utilizing the opportunity granted to him for filing written submissions the respondent has misused adjournments for the purposes of raising frivolous objections for getting the case transferred to some other bench. no party is entitled to get a case transferred from one bench to the other unless the bench is biased or there are some reasonable grounds for the same but no right to get a case transferred to any other bench can legitimately be claimed merely because the judges express opinion on the merits of the case on the conclusion of hearing. in the instant case on the conclusion of the oral hearing we had expressed our opinion on 28 1 1988 in the open court that we were inclined to allow the appeal and set aside the order of the high court and dismiss the writ petition but taking a sympathetic view we requested sh. vimal dave learned counsel appearing for the respondent to obtain instructions as aforesaid. the opportunity granted to the respondent has however been misused by raising mischievous and frivolous objections instead of filing written submissions. the respondent 's prayer is accordingly rejected and since oral hearing has already been completed and in spite of several adjournments respondent failed to appear before the court or to file the written submissions we proceed to decide the case on merits. transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. no government servant or employee of public undertaking has legal tight for being posted at any particular place. transfer from one place to other is generally a condition of service and the employee has no choice in the matter. transfer from one place to other is necessary in public interest and efficiency in the public administration. whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay modification or cancellation of the transfer order. if the order of transfer is not stayed modified or cancelled the concerned public servant must carry out the order of transfer. in the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation or on the ground of his difficulty in moving from one place to the other. if he fails to proceed on transfer in compliance to the transfer order he would expose himself to disciplinary action under the relevant rules as has happened in the instant case. the respondent lost his service as he refused to comply with the order of his transfer from one place to the other. there is no dispute that the respondent was holding a transferable post and under the conditions of service applicable to him he was liable to be transferred and posted at any place within the state of gujarat. the respondent had no legal or statutory right to insist for being posted at one particular place. in fact during the tenure of his service in the board the respondent had been transferred from one place to another place several times. in march1974 he was transferred from surat to ukai. the distance between the two places as was stated before us during the hearing of the case is less than 50 kms. he was relieved from his duties at surat on 30th march1974. but he did not join at ukai till the impugned order of discharge was issued on may 271974 the. chief engineer who discharged the respondent 's services exercised his power under service regulation no 113which runs as under 113 the continued absence from duty or overstay m spite of warning to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the gujarat electricity board conduct discipline and appeal procedure. the above rule provides that if an employee of the gujarat electricity board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning he fails to return to duty he renders himself liable to be discharged summarily from service without complying with the procedure prescribed for taking disciplinary action under the gujarat electricity board conduct discipline and appeal procedure. regulation 113 confers wide powers on the authorities to summarily discharge an employee from service if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. under the disciplinary rules detailed procedure is required to be followed for removing an employee from service but regulation 113 provides for summary discharge from service. before this power is exercised two conditions must be satisfied firstly the employee must be found to be absent from duty without leave or overstaying the period of sanctioned leave and secondly he failed to join his duty even after a warning. the object and purpose of giving warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under regulation 113 and to afford him an opportunity to make amends by joining his duty. if even thereafter he fails to join duty his services are liable to be terminated by an order of discharge. it is noteworthy that the validity of regulation 113 was not challenged before the high court and the parties proceeded on the assumption that regulation 113 was valid and applicable to the respondent 's service. the chief engineer discharged the respondent from service as he had continued to remain absent from duty w e f. march 301974 to may 271974. the division bench of the high court held that no warning as contemplated by service regulation no 113 had been issued to the respondent nor he had been afforded any opportunity of showing cause before the impugned order of discharge was passed and consequently the order of discharge was null and void being contrary to service regulation no 113 itself. on perusal of the material on record we are of the opinion that the view taken by the high court is not sustainable as there is sufficient material on record which shows that warning had been issued to the respondent before the order of discharge was issued. in determining the question whether any warning was given to the respondent it is necessary to refer to the sequence of events and the correspondence which ensued between the appellants and the respondent. on march 291974 the superintending engineer of the board issued the order transferring the respondent from surat to ukai on 30 3 1974 the respondent was relieved from surat and directed to join his duty at ukai but the respondent did not join his duty at the new place of posting. instead he made a representation to the additional chief engineer on 8 4 1974 after the transfer order. the transfer order was not stayed and as the respondent did not join his duties he continued to be absent without sanction of any leave. in this situation the superintending engineer by his letter dated 18th april1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unauthorised absence from duty in breach of service regulation. no 113 the letter is as under gujarat electricity board o m division nana varchha road surat. dated 18th april1974. to shri a s pohani junior engineer ukai 37gurunagar society near jakat naka surat 3. sub transfer from surat to ukai. you have been relieved on 30 3 1974 a n on account of your transfer from surat to ukai but you have not reported to ukai till today and remained on unauthorised absence on relief which is breach of s r no 112 and 113 please submit your explanation as to why action should not be taken against you for disobeying order of superior and breach of s r no 112 and 113 within 7 days from receipt of this letter. sd execut. i ve engineer o m surat copy f w c s to. superintending engineer geb utran. there is no dispute that the respondent received the aforesaid letter as he sent a reply to the superintending engineer on april 201974a copy of which was annexed as annexure j by the petitioner to his petition before the high court. by that letter respondent stated that he was waiting for the decision of his representation made for reconsideration of his transfer from surat to ukai and therefore the question of his remaining on unauthorised leave was misconceived. since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised. no government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave merely on account of pendency of representation against the order of transfer. since the respondent continued to be absent from duty the superintending engineer by a registered post acknowledgment due letter dated april 241974 informed the respondent that his request to postpone his transfer was rejected and he was directed to join his duty at ukai and on his failure to do so disciplinary action would be taken against him. the establishment officer p of the board also informed the respondent by his letter dated may 61974 that his representation against the order of transfer was not accepted and he was directed to obey the order of transfer. a copy of the letter filed by the petitioner himself as annexure k to the writ petition in the high court. but even thereafter the respondent did not join his duties. ultimately the chief engineer of the board took action against the respondent and discharged him from service with effect from 31 3 1974 by his letter dated may 271974. the sequence of events and the correspondence which ensued between the officers of the board and the respondent clearly show that the respondent disobeyed the order of transfer and he remained absent from duty in an unauthorised manner without obtaining sanction of leave. the aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. in fact the superintending engineer had by his letter dated 18th april1974 clearly reminded the respondent that his unauthorised absence was in breach of service regulation no 113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. the division bench of the high court has held that since no warning was issued to the respondent action taken under service regulation no 113 was not in accordance with law. this finding is wholly misconceived. a warning need not be in any particular form. the object and purpose of the warning as contemplated by the regulation is to remind the delinquent employee that his continued unauthorised absence from duties was liable to result in discharge of his service. the substance of the superintending engineer 's letter dated 18th april1974 which was admittedly served on the respondent contained warning to the respondent which fully met the requirement of regulation no 113. before the high court a controversy was raised as to whether the registered letter dated 24 4 1974 addressed by the superintending engineer to the respondent was received by him or not. the registered cover containing the letter dated 24 4 1974 was returned back by the postal authorities with an endorsement that the addressee refused to accept the same. the respondent 's case was that no such registered letter was tendered to him by the postman nor he ever refused to accept the same. the division bench held that letter dated 24 4 1974 which contained a warning had not been served on the respondent and since the board had failed to raise the question before the learned single judge it could not do so in the letters patent appeal. the division bench further held that since the letter dated 24 4 1974 was not served on the respondent there was no material to show that any warning had been issued to the respondent before he was discharged from service. we do not agree with the view taken by the division bench. firstly even if the letter dated 24 4 1974 was not served on the respondent there is no dispute that the superintending engineer 's letter dated 18th april1974 had been served on him. by that letter warning as contemplated by regulation no 113 had been issued to the respondent. therefore even if the letter dated 24 4 1974 was not served on the respondent the order of discharge as contemplated by regulation no 113 is sustainable in law. but even otherwise the division bench committed error in holding that the board had raised the question of service of the letter dated 24 4 1974 for the first time before the division bench in the letters patent appeal. perusal of the averments made in paragraphs 171823 and 25 2ii of the counter affidavit filed in reply to the petitioner 's writ petition before the learned single judge shows that the board had categorically pleaded that the respondent was informed by letter dated 24 4 1974 that his representation to postpone his transfer was rejected and he should obey the order of transfer. it was further pleaded that the respondent had refused to accept the registered letter and the same had been returned back by the postal authorities with an endorsement that the addressee refused to accept the same. in his rejoinder affidavit the respondent denied the aforesaid allegations and asserted that the letter was not tendered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. apart from denying the postal endorsement the respondent placed no material before the court in support of his pleading. in this view we are of the opinion that the division bench was totally wrong in holding that no opportunity was afforded to the respondent to meet the case set up by the board that the letter dated 24 4 1974 was served on the respondent. no new plea had been raised by the board before the division bench instead the plea relating to service of the aforesaid letter had already been before the learned single judge. there is presumption of service of a letter sent under registered cover if the same is returned back with a postal endorsement that the addressee refused to accept the same. no doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. the burden to rebut the presumption lies on the party challenging the factum of service. in the instant case the respondent failed to discharge this burden as he failed to place material before the court to show that the endorsement made by the postal authorities was wrong and incorrect. mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. we are therefore of the opinion that the letter dated 24 4 1974 was served on the respondent and he refused to accept the same. consequently the service was complete and the view taken by the high court is incorrect. in view of the above discussion we therefore hold that the respondent 's failure to join his duties at ukai resulted in unauthorised absence and his failure to join his duties in spite of the repeated reminders and letters issued to him constituted sufficient valid ground for taking action under regulation no 113 we further hold that before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disciplinary action should not be taken against him. the respondent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from service in accordance with the service regulation. no 113 the learned single judge as well as the division bench both erred in law in setting aside the order of discharge. we accordingly allow the appeal set aside the order of the single judge as well as division bench and dismiss the respondent 's petition. there would be no order as to costs. the respondent has been paid a sum of rs 104170 towards salary under the interim orders of this court. now since the order of discharge is held to be valid the amount paid to the respondent is liable to be recovered from him but having regard to the facts and circumstances of the case and the hardship which could be caused to the respondent we direct the appellant not to recover the amount already paid to the respondent. appeal allowed.

FACTS the respondent joined service as technical assistant with the gujarat state electricity board. while he was posted at surat as deputy engineer he was transferred to ukai subdivision under the order of the superintending engineer. pursuant to the order of transfer he was relieved from his duties at surat on 30th march,1974 to enable him to join at ukai. he made representation to the additional chief engineer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at ukai. his representation was rejected and he was directed to join at ukai but he did not do so instead he filed a civil suit at baroda challenging validity of the order of transfer. meanwhile,the chief engineer by his order dated 27th may,1974 discharged the respondent from service with effect from 31st march,1974 in accordance with service regulation no.113. the respondent challenged the validity of the order of his discharge from service by means of a writ petition under article 226 of the constitution before the high court of gujarat. a learned single judge of the high court quashed the order of termination on the findings that the order of discharge was issued in violation of the basic principles of natural justice as no opportunity was afforded to the respondent before discharging him from services under regulation no.113. ISSUE the appeal is directed against the judgment and order of the high court of gujarat dated 28.2.1986 allowing the respondent's writ petition and quashing order of discharge from service and directing his reinstatement in service. ANALYSIS no government servant or employee of public undertaking has legal tight for being posted at any particular place. transfer from one place to other is generally a condition of service and the employee has no choice in the matter. transfer from one place to other is necessary in public interest and efficiency in the public administration. whenever,a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay,modification or cancellation of the transfer order. if the order of transfer is not stayed,modified or cancelled the concerned public servant must carry out the order of transfer. in the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation,or on the ground of his difficulty in moving from one place to the other. if he fails to proceed on transfer in compliance to the transfer order,he would expose himself to disciplinary action under the relevant rules,as has happened in the instant case. the respondent lost his service as he refused to comply with the order of his transfer from one place to the other. there is no dispute that the respondent was holding a transferable post and under the conditions of service applicable to him he was liable to be transferred and posted at any place within the state of gujarat. the respondent had no legal or statutory right to insist for being posted at one particular place. in fact,during the tenure of his service in the board the respondent had been transferred from one place to another place several times. in march,1974 he was transferred .from surat to ukai. the distance between the two places as was stated before us during the hearing of the case is less than 50 kms. the above rule provides that if an employee of the gujarat electricity board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning,he fails to return to duty,he renders himself liable to be discharged summarily from service without complying with the procedure prescribed for taking disciplinary action,under the gujarat electricity board,conduct,discipline and appeal procedure. regulation 113 confers wide powers on the authorities to summarily discharge an employee from service,if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. the object and purpose of giving warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under regulation 113 and to afford him an opportunity to make amends by joining his duty. if even thereafter he fails to join duty,his services are liable to be terminated by an order of discharge. the sequence of events and the correspondence which ensued between the officers of the board and the respondent clearly show that the respondent disobeyed the order of transfer and he remained absent from duty in an unauthorised manner without obtaining sanction of leave. the aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. in fact,the superintending engineer had by his letter dated 18th april,1974 clearly reminded the respondent that his unauthorised absence was in breach of service regulation no.113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. the respondent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from service in accordance with the service regulation no.113.

FACTS the respondent joined service as technical assistant with the gujarat state electricity board. he was promoted to the post of deputy engineer. while he was posted at surat as deputy engineer he was transferred to ukai subdivision under the order of the superintending engineer. pursuant to the order of transfer he was relieved from his duties at surat on 30th march,1974 to enable him to join at ukai. he made representation to the additional chief engineer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at ukai. his representation was rejected and he was directed to join at ukai but he did not do so instead he filed a civil suit at baroda challenging validity of the order of transfer. meanwhile,the chief engineer by his order dated 27th may,1974 discharged the respondent from service with effect from 31st march,1974 in accordance with service regulation no.113. the respondent challenged the validity of the order of his discharge from service by means of a writ petition under article 226 of the constitution before the high court of gujarat. a learned single judge of the high court quashed the order of termination on the findings that the order of discharge was issued in violation of the basic principles of natural justice as no opportunity was afforded to the respondent before discharging him from services under regulation no.113. ISSUE this appeal is directed against the judgment and order of the high court of gujarat dated 28.2.1986 allowing the respondent's writ petition and quashing order of discharge from service and directing his reinstatement in service. ANALYSIS transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. no government servant or employee of public undertaking has legal tight for being posted at any particular place. transfer from one place to other is generally a condition of service and the employee has no choice in the matter. transfer from one place to other is necessary in public interest and efficiency in the public administration. whenever,a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay,modification or cancellation of the transfer order. if the order of transfer is not stayed,modified or cancelled the concerned public servant must carry out the order of transfer. in the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation,or on the ground of his difficulty in moving from one place to the other. if he fails to proceed on transfer in compliance to the transfer order,he would expose himself to disciplinary action under the relevant rules,as has happened in the instant case. the respondent lost his service as he refused to comply with the order of his transfer from one place to the other. there is no dispute that the respondent was holding a transferable post and under the conditions of service applicable to him he was liable to be transferred and posted at any place within the state of gujarat. the respondent had no legal or statutory right to insist for being posted at one particular place. in fact,during the tenure of his service in the board the respondent had been transferred from one place to another place several times. in march,1974 he was transferred .from surat to ukai. the distance between the two places as was stated before us during the hearing of the case is less than 50 kms. the above rule provides that if an employee of the gujarat electricity board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning,he fails to return to duty,he renders himself liable to be discharged summarily from service without complying with the procedure prescribed for taking disciplinary action,under the gujarat electricity board,conduct,discipline and appeal procedure. regulation 113 confers wide powers on the authorities to summarily discharge an employee from service,if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. the object and purpose of giving warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under regulation 113 and to afford him an opportunity to make amends by joining his duty. if even thereafter he fails to join duty,his services are liable to be terminated by an order of discharge. the sequence of events and the correspondence which ensued between the officers of the board and the respondent clearly show that the respondent disobeyed the order of transfer and he remained absent from duty in an unauthorised manner without obtaining sanction of leave. the aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. in fact,the superintending engineer had by his letter dated 18th april,1974 clearly reminded the respondent that his unauthorised absence was in breach of service regulation no.113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. the respondent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from service in accordance with the service regulation no.113.

these appeals arising out of a judgment and order dated 26 4 2000 passed in writ petition no 1188 of 1997 by the high court of madhya pradesh indore bench involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. background facts. the appellant nos 1 and 2 are degree holders in civil engineering and appellant nos. 3 and 4 are diploma holders in civil engineering. they having come to learn that certain vacancies exist in the respondent authority applied therefor although no advertisement in that behalf was issued. the respondent authority appointed the appellants and posted them to an overseas project known as indore habitat project which was implemented through the agency of overseas development authority hereinafter referred to as the oda on daily wages. rs 63 per day for the degree holders and rs 52 50 per day for the diploma holders. on or about 17 3 1997 however they began receiving a salary of rs 1500 per month. allegedly from their salary provident fund was being deducted. they were also being granted the benefit of leave. a dispute arose as to whether all the appellants were employed for the purpose of the said project or the appellants in civil appeal no 337 of 2002 were appointed in the year 1991 by the authority for its own job. an industrial dispute was raised by the appellants herein as their services were not being regularized by the respondent. the said dispute was referred for adjudication of the labour court indore by the state of madhya pradesh on the following questions. 1whether non regularisation of the sub engineers as per the listed enclosed is valid and proper. if no then to which relief they are entitled and what directions should be given to the employer. 2whether it is valid and proper for not giving equal salary to these sub engineers like other sub engineers in accordance with the equal work. proceedings before the tribunal. the parties filed their respective pleadings before the labour court and also adduced their respective evidences. the labour court on the basis of the materials produced before it arrived at the following findings 1. the appellants were appointed by the indore development authority. all the employees have been working in the establishment of the respondents for last 5 6 years. their work was satisfactory. work has been taken by the respondent from all the appellants except four. respondents had also mentioned in their claim that there was a proposal to hand over the colony of oda project to indore municipal corporation. the salary fixed by the commissioner was earlier given to all engineers and later on they were given the salary fixed by the collector. there is no difference in their work and the work of the employees of indore development authority. aggrieved by and dissatisfied with the said award the respondent authority herein filed a writ petition before the madhya pradesh high court indore bench which was marked as writ petition no 1188 of 1997. by reason of the impugned judgment dated 26 4 2000 the said writ petition was allowed. high court judgment. the high court accepted the contention of the respondent authority that the appellants were not appointed against the sanctioned posts and their services were taken on account of the said oda project which was implemented through the agency of the respondent authority. the oda project is said to have been completed and only the maintenance thereof was to be looked after by the indore municipal corporation. it was held that the services of the appellants can not be directed to be regularized in services. as regard the application of the madhya pradesh industrial employment standing orders act 1961 for short the 1961 act and the rules framed there under known as m p industrial employment standing order rules 1963 for short the 1963 rules it was observed that although there was no specific pleadings raised in this behalf by the respondents therein nor any question having been referred to the labour court by the state government touching the said issue it committed an error in granting relief to them on the basis thereof on its own motion. despite the same the high court went into the question of applicability of the said act and held that the 1961 act and the 1963 rules had no application. before the high court various documents were produced by the appellants herein to show the nature of their employment but the same had not been taken on records by the high court. as regard application of the doctrine of equal pay for equal work it was held to be not applicable as the appellants were not entitled to absorption or classification in terms of the 1961 act and the 1963 rules. submissions. dr rajiv dhawan learned senior counsel appearing on behalf of the appellants in civil appeal no 337 of 2002 and mr m n rao learned senior counsel appearing on behalf of the appellants in civil appeal no 335 of 2002 took us through materials on records and contended that the appellants herein became permanent employees of the respondents having regard to the provisions contained in section 2 of the 1961 act and order 2i and 2vi of the standard standing orders as set out in the annexure appended to the 1963 rules defining permanent employees and the temporary employees. placing reliance on several documents which have come into existence at a subsequent stage dr dhawan would contend that vacancies in fact had arisen after passing of the judgment of the high court and thus the services of the appellants should be regularized there against. the vacancies according to the learned counsel need not be permanent ones. it was urged that the expression clear vacancies has to be read in the context of period for which the concerned workman was required to work namely six months. the learned counsel would argue that the job was required to be performed for six months for which somebody else could have been appointed so as to attract the provisions of the 1961 act and the 1963 rules. dr dhawan would furthermore contend that the findings of fact had been arrived at by the labour court that the appellants of civil appeal no 337 of 2002 were appointed by the authority and not only their work was being taken in the project but also in other works and thus mere posting of the appellants to the said project would not disentitle them from the benefit of the said act. the learned counsel would urge that a seniority list was also drawn up and an employment code was assigned to each one of the appellants from which fact the nature of their employment should be judged. the learned counsel would submit that the sufficient materials were brought on records to show that vacancies were available and as the appellants worked for a period of more than six months they became permanent employees in terms of the act. it was further contended that as the respondents despite direction to produce documents including the offers for appointment did not produce the same an adverse inference should have been drawn against them by the high court. as regard the claim of equal pay for equal work the learned counsel would urge that the high court has failed to consider the same in its true perspective. mr v r reddy learned senior counsel appearing on behalf of the respondents on the other hand would contend that indisputably the appellants were engaged by the respondent authority but such appointments were made for the purpose of the project financed by oda. the learned counsel would submit that in fact no appointment letter was issued to the appellants. our attention was also drawn to the application dated 22 10 1991 filed by one o p mandloi before the chairman of the indore development authority disclosing his educational qualifications and enclosing therewith the mark sheets and degrees obtained by him in civil engineering and also secondary school examination certificate to show his date of birth. whereupon the chief executive officer on the body of the said application itself made the following endorsement he may be tried in daily wages and should be entrusted with the work of progress collection of oda work put with illegible. sd c e o 23 10 91. the learned counsel would submit that in the aforementioned premise the question of regularization of the services of the appellants does not arise. drawing our attention also to the pleadings as also the reliefs claimed for by the appellants before the labour court the learned counsel would contend that no contention was raised therein by the appellants as regard their entitlement of permanency in terms of the provisions of the 1961 act and the 1963 rules. furthermore from the reliefs claimed it would appear that the appellants had inter alia prayed for continuance of their services by the indore municipal corporation which knocks off the very basis of their claim. it was urged that there does not exist any controversy that oda was to continue before 30 6 1997 and as such the appellants could not have been absorbed by the respondent authority. statutory. provisions section 22 of the 1961 act. reads as follows nothing in this act shall apply to the employees in an undertaking to whom the fundamental and supplementary rules civil services classification control and appeal rules civil services temporary service rules revised leave rules civil service regulations or any other rules or regulations that may be notified in this behalf by the state government in the official gazette apply. 2 of the standard standing order reads as under 2. classification of employees. employees shall be classified as i permanent ii permanent seasonaliii. probationers iv badlies v apprentices and vi temporary. i a permanent employee is one who has completed six months satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee vi. temporary employee means an employee who has been employed for work which is essentially of a temporary character or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee within the meaning of cl. i above. determination. the respondent authority is a state within the meaning of article. 12 of the constitution of india. it is therefore constitutionally obliged to strictly comply with the requirements of articles 14 and 16 thereof before making any appointment. it is also not in dispute that the respondent authority has been constituted under madhya pradesh nagar tatha gram nibesh adhiniyam 1973 adhiniyam section 47 whereof mandates that all appointments to the posts of officers and servants included in the state cadre mentioned in section 76 b of the development authority services must be made by the state government and the appointments to the posts of officers and servants included in the local cadre in the said services by the concerned town and country development authority. the proviso appended to section 47 of the adhiniyam further mandates that no post shall be created in any authority without the prior sanction of the state government. section 76b provides for constitution of development authorities service. it is also not in dispute that the state government in exercise of its rule making power conferred upon it section 85 of the adhiniyam has made rules known as m p development authority services officers and servants recruitment rules 1987. the posts of sub engineers in which the appellants were appointed. it is nobody 's case were sanctioned ones. concededly the respondent authority before making any appointment neither intimated the employment exchange about the existing vacancies if any nor issued any advertisement in relation thereto. indisputably the conditions precedent for appointment of the officers and servants of the authority as contained in the service rules had not been complied with. the appointments of the appellants were therefore void ab initio being opposed to public policy as also violative of articles 14 and 16 of the constitution of india. the question therefore which arises for consideration is as to whether they could lay a valid claim for regularization of their services. the answer thereto must be rendered in negative. regularisation can not be claimed as a matter of right. an illegal appointment can not be legalized by taking recourse to regularization. what can be regularized is an irregularity and not an illegality. the constitutional scheme which the country has adopted does not contemplate any backdoor appointment. a state before offering public service to a person must comply with the constitutional requirements of articles 14 and 16 of the constitution. all actions of the state must conform to the constitutional requirements. a daily wager in absence of a statutory provision in this behalf would not be entitled to regularization. see state of u p others vs. ajay kumar 1997 4 scc 88 1997 indlaw sc 833 jawaharlal nehru krishi viswa vidyalaya jabalpur m p vs. bal kishan soni and others 1997 5 scc 86 1997 indlaw sc 928. in hindustan shipyard ltd and others vs dr p sambasiva rao and others 1996 7 scc 499 1996 indlaw sc 3441 a division bench of this court observed. the process of regularization involves regular appointment which can be done only in accordance with the prescribed procedure. having regard to the rules which have been made by the appellant corporation regular appointment on the post of medical officer can only be made after the duly constituted selection committee has found the person suitable for such appointment. in a umarani vs registrar cooperative societies and ors. jt 2004 6 sc 110 2004 indlaw sc 606 a three judge bench of this court of which we were members upon taking into consideration a large number of decisions held although we do not intend to express any opinion as to whether the cooperative society is a state within the meaning of article but it is beyond any cavil of doubt that the writ petition will be maintainable when the action of the cooperative society is violative of mandatory statutory provisions. in this case except the nodal centre functions and supervision of the cooperative society the state has no administrative control over its day to day affairs. the state has not created any post nor they could do so on their own. the state has not borne any part of the financial burden. it was therefore impermissible for the state to direct regularization of the services of the employees of the cooperative societies. such an order can not be upheld also on the ground that the employees allegedly served the cooperative societies for a long time. yet recently in pankaj gupta ors etc. vs state of jammu kshmir ors. jt 2004 8 sc 531 2004 indlaw sc 729 a division bench of this court opined no person illegally appointed or appointed without following the procedure prescribed under the law is entitled to claim that he should be continued in service. in this situation we see no reason to interfere with the impugned order. the appointees have no right for regularization in the service because of the erroneous procedure adopted by the concerned authority in appointing such persons. case law relied upon by the appellant. in dr a k jain and others etc. vs union of india and others 1987 supp. scc 497. 1987 indlaw sc 28778 this court did not lay down any law. it was in fact held that as the petitioners therein were not regularized in accordance with the prescribed rules and regulations for regular appointments their services had to be terminated and as such there had been neither any arbitrary nor illegal action on the part of the respondents nor any violation of the fundamental rights guaranteed under articles 14 and 16. however having regard to the facts and circumstances of the said case some directions were issued presumably in terms of article 142 of the constitution. in hindustan shipyard ltd 1996 indlaw sc 3441 supra this court also distinguished the said decision. in niadar and another vs delhi administration and another 1992 4 scc 112 1988 indlaw sc 244 again no law has been laid down. it appears that there existed a scheme for regularization and some directions were issued in terms thereof. the said decisions thus are of no assistance in this case. application of the act and the rules. the 1961 act was enacted to provide for rules defining with sufficient precision in certain matters the conditions of employment of employees in undertakings in the state of madhya pradesh. by reason of the provisions of the said act application of standard standing orders to undertakings has been provided in terms whereof the matters to be provided in the standard standing orders have been specified. under sub s 1 of section 6 the state government may by notification apply standard standing orders to such class of undertakings and from such date as may be specified therein. sub s 2 of section 6 reads as under where immediately before the commencement of this act standing order are in force in respect of any undertaking such standing orders shall until standard standing orders are applied to such undertaking under sub s. 1 continue in force as if they were made under this act. no notification has been brought to our notice that the standard standing orders had been made applicable to the appellants. it is furthermore not in dispute that adhiniyam came into force in 1973. the statute rules and regulations formed by the state govern the terms and conditions of service of the employees of the respondent. the terms of conditions of service contained in the 1973 act and the 1987 rules are not in derogation of the provisions contained in schedule appended to the 1961 act. the 1961 act provides for classification of employees in five categories. the 1973 act as noticed hereinbefore clearly mandates that all posts should be sanctioned by the state government and all appointments to the said cadre must be made by the state government alone. even the appointments to the local cadre must be made by the authority. the said provisions were not complied with. it is accepted that no appointment letter was issued in favour of the appellants. had the appointments of the appellants been made in terms of the provisions of the adhiniyam and rules framed thereunder the respondent authority was statutorily enjoined to make an offer of appointment in writing which was to be accepted by the appellants herein. who made the appointments of the appellants to the project or other works carried on by the authority is not known. whether the person making an appointment had the requisite jurisdiction or not is also not clear. we have noticed hereinbefore that in the case of om prakash mondloi the ceo made an endorsement to the effect that he may be tried in daily wages and should be entrusted with the work of progress collection of oda work. the said order is not an offer of appointment by any sense of term. it may be true that the appellants had been later on put on a monthly salary but there is nothing on record to show as to how the same was done. they might have been subjected to the provisions of the employees provident fund and might have been granted the benefit of leave or given some employment code and their names might have found place in the seniority list amongst others but thereby they can not be said to have been given a permanent ticket. the so called seniority list which is contained in annexure p 27 whereupon strong reliance has been placed by dr dhawan merely itself goes to show that it was prepared in respect of office muster employees. the said seniority list was not prepared in terms of the classification of employees within the meaning of the 1961 act and the rules framed there under but was based on the date of joining probably for the purpose of maintenance of records. the 1973 act or the rules framed there under do not provide for appointments on ad hoc basis or on daily wages. the 1961 act itself shows that the employees are to be classified in six categories namely permanent permanent seasonal probationers badlies apprentices and temporary. the recruitments of the appellants do not fall in any of the said categories. with a view to become eligible to be considered as a permanent employee or a temporary employee one must be appointed in terms thereof. permanent employee has been divided in two categories i who had been appointed against a clear vacancy in one or more posts as probationers and otherwise and ii whose name had been registered at muster roll and who has been given a ticket of permanent employee. a ticket of permanent employee was thus required to be issued in terms of order 3 of the standard standing orders. grant of such ticket was imperative before permanency could be so claimed. the appellants have not produced any such ticket. it is not the case of the appellants that they had been working as technical supervisors and clerks in respect of which service book may be maintained instead of issuance of a ticket. it is also not the case of the appellants that their names had appeared in the service book maintained for the said purpose. the standing orders governing the terms and conditions of service must be read subject to the constitutional limitations wherever applicable. constitution being the suprema lax shall prevail over all other statutes. the only provision as regard recruitment of the employees is contained in order 4 which merely provides that the manager shall within a period of six months lay down the procedure for recruitment of employees and notify it on the notice board on which standing orders are exhibited and shall send copy thereof to the labour commissioner. the matter relating to recruitment is governed by the 1973 act and the 1987 rules. in absence of any specific directions contained in the schedule appended to the standing orders the statute and the statutory rules applicable to the employees of the respondent shall prevail. in m p vidyut karamchari sangh vs m p electricity board 2004 9 scc 755 2004 indlaw sc 198 a three judge bench of this court held that a regulation which is not inconsistent with the provisions of the 1961 act and the rules can be issued by a statutory authority. for the purpose of this matter we would proceed on the basis that the 1961 act is a special statute. vis a vis the 1973 act and the rules framed thereunder. but in absence of any conflict in the provisions of the said act the conditions of service including those relating to recruitment as provided for in the 1973 act and the 1987 rules would apply. if by reason of the latter the appointment is invalid the same can not be validated by taking recourse to regularization. for the purpose of regularization which would confer on the concerned employee a permanent status there must exist a post. however we may hasten to add that regularization itself does not imply permanency. we have used the term keeping in view the provisions of 1963 rules. we have noticed the provisions of the act and the rules. no case was made out by the appellants herein in their statements of claim that they became permanent employees in terms thereof. there is also nothing on records to show that such a claim was put forward even in the demand raising the industrial dispute. presumably the appellants were aware of the statutory limitations in this behalf. furthermore the labour court having derived its jurisdiction from the reference made by the state government it was bound to act within the four corners thereof. it could not enlarge the scope of the reference nor could deviate therefrom. a demand which was not raised at the time of raising the dispute could not have been gone into by the labour court being not the subject matter thereof. the questions which have been raised before us by dr dhawan had not been raised before the labour court. the labour court in absence of any pleadings or any proof as regard application of the 1961 act and the 1963 rules had proceeded on the basis that they would become permanent employees in terms of order 2ii and 2vi of the annexure appended thereto. the appellants did not adduce any evidence as regard nature of their employment or the classification under which they were appointed. they have also not been able to show that they had been issued any permanent ticket. dr dhawan is not correct in his submission that a separate ticket need not be issued and what was necessary was merely to show that the appellants had been recognized by the state as its employees having been provided with employment code. we have seen that their names had been appearing in the muster rolls maintained by the respondent. the scheme of the employees provident fund or the leave rules would not alter the nature and character of their appointments. the nature of their employment continues save and except a case where a statute interdicts which in turn would be subject to the constitutional limitations. for the purpose of obtaining a permanent status constitutional and statutory conditions precedent therefor must be fulfilled. the submission of mr m n rao to the effect that the principle of equity should be invoked in their case is stated to be rejected. such a plea had expressly been rejected by this court in a umarani 2004 indlaw sc 606 supra. project work. this case involves 31 employees. a distinction is sought to be made by dr dhawan that out of them 27 had been appointed to a project and not in a project. the distinction although appears to be attractive at the first blush but does not stand a moment 's scrutiny. as noticed hereinbefore the high court 's observation remained unchallenged that the project was to be financed by oda. the project was indisputably to be executed by the indore development authority and for the implementation thereof the appointments had to be made by it. if the appellants were appointed for the purpose of the project they would be deemed to have been appointed therefor and only because such appointments had been made by the respondent would by itself not entitle them to claim permanency. the life of the project came to an end on 30 6 1997. the maintenance job upon completion thereof had been taken over by indore municipal corporation. the appellants were aware of the said fact and thus raised an alternative plea in their statements of claims. the labour court could not have granted any relief to them as prayed for as indore municipal corporation is a separate juristic person having been created under a statute. such a relief would have been beyond the scope and purport of the reference made to the labour court by the state government. furthermore the indore municipal corporation was not a party and thus no employee could be thrust upon it without its consent. in a umarani 2004 indlaw sc 606 supra this court held that once the employees are employed for the purpose of the scheme they do not acquire any vested right to continue after the project is over. see also karnataka state coop. apex bank ltd vs. y s shetty and others 2000 10 scc 179 1999 indlaw sc 2211 and m d u p land development corporation and another vs. amar singh and others 2003 5 scc 388 2003 indlaw sc 331. it is furthermore evident that the persons appointed as daily wagers held no posts. the appointments thus had been made for the purpose of the project which as indicated hereinbefore came to an end. the plea of dr dhawan to the effect that the appellants in civil appeal. No 337 of 2002 were asked to perform other duties also may not be of much significance having regard to our foregoing findings. however it has been seen that even services of one of them had been requisitioned only for the project work. the high court in our opinion was right in arriving at the conclusion that the appellants were not entitled to be regularized in service. adverse inference. some documents were said to have been called for from the respondents which are said to have been not produced. one of such documents was offers of appointment. the witness examined on behalf of the respondents although at one stage stated that the appointment letters had been issued to them upon going through the records brought with him however asserted that no such appointment letter was issued. had the letters of appointment been issued the appellants themselves could have produced the same. they did not do so. it is accepted at the bar when the endorsement on the application filed by om prakash mondloi was shown that the appointment letters were not issued. we do not know the relevance of other documents called for for determining the issue. if a document was called for in absence of any pleadings the same was not relevant. in absence of any pleadings the appellants could not have called for any document to show that the provisions of the 1961 act and 1963 rules would apply. before the high court as also before us the appellants have produced a large number of documents which were not filed before the labour court. such additional documents had been kept out of consideration by the high court as also by us. we have referred to the said fact only for the purpose of showing that it would not be correct to contend that the appellants had no access to the said documents. an adverse inference need not necessarily be drawn only because it would be lawful to do so. the labour court did not draw any adverse inference. such a plea was not even raised before the high court. recently in m p electricity board vs hariram etc. 2004 air scw 5476. 2004 indlaw sc 829 this court observed in such a factual background in our opinion the industrial court or the high court could not have drawn an adverse inference for the non production of the muster rolls for the year 1990 to 1992 in the absence of specific pleading by the respondents applicants that at least during that period they had worked for 240 days continuously in a given year. the application calling for the production of the documents was for the years 1987 to 1992. as stated above between the period 1987 to 1990 as a matter of fact till end of the year 1990 the respondents have not been able to establish the case of continuous work for 240 days. considering these facts in our view drawing of an adverse inference for the non production of the muster rolls for the years 1991 92 is wholly erroneous on the part of the industrial court and the high court. we can not but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the applicants respondents. the above burden having not been discharged and the labour court having held so in our opinion the industrial court and the high court erred in basing an order of re instatement solely on an adverse inference drawn erroneously. at this stage it may be useful to refer to a judgment of this court in the case of muncipal corporation faridabad vs siri niwas jt 2004 7 sc 248 2004 indlaw sc 719 wherein this court disagreed with the high court 's view of drawing an adverse inference in regard to the non production of certain relevant documents. this is what this court had to say in that regard. a court of law even in a case where provisions of the indian evidence act apply may presume or may not presume that if a party despite possession of the best evidence had not produced the same it would have gone against his contentions. the matter however would be different where despite direction by a court the evidence is withheld. presumption as to adverse inference for non production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. the presumption thus is not obligatory because notwithstanding the intentional non production other circumstances may exist upon which such intentional non production may be found to be justifiable on some reasonable grounds. in the instant case the industrial tribunal did not draw any adverse inference against the appellant. it was within its jurisdiction to do so particularly having regard to the nature of the evidence adduced by the respondent. in any event in this case we have proceeded on the basis that the assertions of the appellants as regard nature of their employment their continuance in the job for a long time are correct and as such the question as to whether any adverse inference should be drawn for alleged production of documents called for would take a back seat. equal pay for equal work. the appellants having been employed on daily wages did not hold any post. no post was sanctioned by the state government. they were not appointed in terms of the provisions of the statute. they were not therefore entitled to take the recourse of the doctrine of equal pay for equal work as adumbrated in articles 14 and 39d of the constitution of india. the burden was on the appellants to establish that they had a right to invoke the said doctrine in terms of article 14 of the constitution of india. for the purpose of invoking the said doctrine the nature of the work and responsibility attached to the post are some of the factors which were bound to be taken into consideration. furthermore when their services had not been regularized and they had continued on a consolidated pay on ad hoc basis having not undergone the process of regular appointments no direction to give regular pay scale could have been issued by the labour court. see orissa university of agriculture technology and another vs manoj k mohanty 2003 5 scc 188 2003 indlaw sc 348. in state of haryana and another vs tilak raj and others 2003 6 scc 123 2003 indlaw sc 512 it was held a scale of pay is attached to a definite post and in case of a daily wager he hold no posts. the respondent workers can not be held to hold any posts to claim even comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. to claim a relief on the basis of equality it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis vis an alleged discrimination. no material was placed before the high court as to the nature of the duties of either categories and it is not possible to hold that the principle of equal pay for equal work is an abstract one. the said decision has been noticed in a umarani 2004 indlaw sc 606 supra. conclusion. for the reasons aforementioned we do not find any merit in these appeals which are dismissed accordingly. there shall however be no order as to costs. appeals dismissed.

FACTS the appellant nos.1 and 2 are degree holders in civil engineering and appellant nos. 3 and 4 are diploma holders in civil engineering. they having come to learn that certain vacancies exist in the respondent- authority, applied therefor although no advertisement in that behalf was issued. the respondent-authority appointed the appellants and posted them to an overseas project known as 'indore habitat project' which was implemented through the agency of 'overseas development authority' (hereinafter referred to as 'the oda'), on daily wages. rs.63/- per day for the degree holders and rs.52.50 per day for the diploma holders. on or about 17.3.1997, however, they began receiving a salary of rs.1500/- per month. allegedly, from their salary, provident fund was being deducted. they were also being granted the benefit of leave. ARGUMENT dr. rajiv dhawan, learned senior counsel, appearing on behalf of the appellants in civil appeal no.337 of 2002 and mr. m.n. rao, learned senior counsel, appearing on behalf of the appellants in civil appeal no.335 of 2002, took us through materials on records and contended that the appellants herein became 'permanent employees' of the respondents having regard to the provisions contained in s. 2 of the 1961 act and order 2(i) and 2(vi) of the standard standing orders as set out in the annexure appended to the 1963 rules defining 'permanent employees' and the 'temporary employees. the learned counsel would urge that a seniority list was also drawn up and an employment code was assigned to each one of the appellants from which fact the nature of their employment should be judged. ISSUE a dispute arose as to whether all the appellants were employed for the purpose of the said project or the appellants in civil appeal no.337 of 2002 were appointed in the year 1991 by the authority for its own job. whether non-regularisation of the sub-engineers (as per the listed enclosed) is valid and proper. if no, then to which relief they are entitled and what directions should be given to the employer. whether it is valid and proper for not giving equal salary to these sub engineers like other sub engineers in accordance with the equal work. the question, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. ANALYSIS an industrial dispute was raised by the appellants herein as their services were not being regularized by the respondent. the respondent-authority is a state within the meaning of art. 12 of the constitution of india. it is, therefore, constitutionally obliged to strictly comply with the requirements of arts. 14 and 16 thereof before making any appointment. indisputably, the conditions precedent for appointment of the officers and servants of the authority, as contained in the service rules had not been complied with. the appointments of the appellants were, therefore, void ab initio being opposed to public policy as also violative of arts. 14 and 16 of the constitution of india. a state before offering public service to a person must comply with the constitutional requirements of arts. 14 and 16 of the constitution. all actions of the state must conform to the constitutional requirements. a daily wager in absence of a statutory provision in this behalf would not be entitled to regularization. see state of u.p. &; others vs. ajay kumar, (1997) 4 scc 88 1997 indlaw sc 833, jawaharlal nehru krishi viswa vidyalaya, jabalpur, m.p. vs. bal kishan soni and others (1997) 5 scc 86] 1997 indlaw sc 928. the recruitments of the appellants do not fall in any of the said categories. with a view to become eligible to be considered as a permanent employee or a temporary employee, one must be appointed in terms thereof. permanent employee has been divided in two categories (i) who had been appointed against a clear vacancy in one or more posts as probationers and otherwise; and (ii) whose name had been registered at muster roll and who has been given a ticket of permanent employee. a 'ticket of permanent employee' was, thus, required to be issued in terms of order 3 of the standard standing orders. the matter relating to recruitment is governed by the 1973 act and the 1987 rules. in absence of any specific directions contained in the schedule appended to the standing orders, the statute and the statutory rules applicable to the employees of the respondent shall prevail. their names had been appearing in the muster rolls maintained by the respondent. the scheme of the employees provident fund or the leave rules would not alter the nature and character of their appointments. the nature of their employment continues save and except a case where a statute interdicts which in turn would be subject to the constitutional limitations. for the purpose of obtaining a permanent status, constitutional and statutory conditions precedent therefor must be fulfilled. indore municipal corporation was not a party and, thus, no employee could be thrust upon it without its consent. it is furthermore evident that the persons appointed as daily wagers held no posts. the appointments, thus, had been made for the purpose of the project which, as indicated hereinbefore, came to an end. the appellants having been employed on daily wages did not hold any post. no post was sanctioned by the state government. they were not appointed in terms of the provisions of the statute. they were not, therefore, entitled to take the recourse of the doctrine of 'equal pay for equal work' as adumbrated in arts. 14 and 39(d) of the constitution of india. the burden was on the appellants to establish that they had a right to invoke the said doctrine in terms of art. 14 of the constitution of india. for the purpose of invoking the said doctrine, the nature of the work and responsibility attached to the post are some of the factors which were bound to be taken into consideration. furthermore, when their services had not been regularized and they had continued on a consolidated pay on ad hoc basis having not undergone the process of regular appointments, no direction to give regular pay scale could have been issued by the labour court. see orissa university of agriculture &; technology and another vs. manoj k. mohanty (2003) 5 scc 188 2003 indlaw sc 348. STATUTE s. 2(2) of the 1961 act. reads as follows : "nothing in this act shall apply to the employees in an undertaking to whom the fundamental and supplementary rules, civil services (classification, control and appeal) rules, civil services (temporary service) rules, revised leave rules, civil service regulations or any other rules or regulations that may be notified in this behalf by the state government in the official gazette apply. cl. 2 of the standard standing order reads as under : "2. classification of employees. employees shall be classified as (i) permanent , (ii) permanent seasonal,(iii. probationers, (iv) badlies, (v) apprentices, and (vi) temporary. i. a 'permanent' employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee; (vi. temporary employee' means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of cl. i) above. the 1961 act was enacted to provide for rules defining with sufficient precision in certain matters the conditions of employment of employees in undertakings in the state of madhya pradesh. by reason of the provisions of the said act, application of standard standing orders to undertakings has been provided in terms whereof the matters to be provided in the standard standing orders have been specified. under sub-s. 1) of section 6, the state government may, by notification, apply standard standing orders to such class of undertakings and from such date as may be specified therein. sub-s. 2) of s. 6 reads as under : "where immediately before the commencement of this act standing order are in force in respect of any undertaking, such standing orders shall, until standard standing orders are applied to such undertaking under sub-s. 1) continue in force as if they were made under this act.

FACTS the appellant nos.1 and 2 are degree holders in civil engineering and appellant nos. 3 and 4 are diploma holders in civil engineering. they having come to learn that certain vacancies exist in the respondent- authority, applied therefor although no advertisement in that behalf was issued. the respondent-authority appointed the appellants and posted them to an overseas project known as 'indore habitat project' which was implemented through the agency of 'overseas development authority' (hereinafter referred to as 'the oda'), on daily wages. rs.63/- per day for the degree holders and rs.52.50 per day for the diploma holders. on or about 17.3.1997, however, they began receiving a salary of rs.1500/- per month. allegedly, from their salary, provident fund was being deducted. they were also being granted the benefit of leave. ARGUMENT the appellants herein became 'permanent employees' of the respondents having regard to the provisions contained in s. 2 of the 1961 act and order 2(i) and 2(vi) of the standard standing orders as set out in the annexure appended to the 1963 rules defining 'permanent employees' and the 'temporary employees. vacancies in fact had arisen after passing of the judgment of the high court and, thus the services of the appellants should be regularized there against. the expression 'clear vacancies' has to be read in the context of period for which the concerned workman was required to work, namely, six months. a seniority list was also drawn up and an employment code was assigned to each one of the appellants from which fact the nature of their employment should be judged. as the respondents despite direction to produce documents including the offers for appointment did not produce the same, an adverse inference should have been drawn against them by the high court. as regard the claim of 'equal pay for equal work', the learned counsel would urge that the high court has failed to consider the same in its true perspective. drawing this court’s attention also to the pleadings as also the reliefs claimed for by the appellants before the labour court, the learned counsel would contend that no contention was raised therein by the appellants as regard their entitlement of permanency in terms of the provisions of the 1961 act and the 1963 rules. furthermore, from the reliefs claimed, it would appear that the appellants had, inter alia, prayed for continuance of their services by the indore municipal corporation which knocks off the very basis of their claim. ISSUE whether non-regularisation of the sub-engineers (as per the listed enclosed) is valid and proper? if no, then to which relief they are entitled and what directions should be given to the employer? (2)whether it is valid and proper for not giving equal salary to these sub engineers like other sub engineers in accordance with the equal work? if no, then to which relief they are entitled and what directions should be given to the employer? ANALYSIS an industrial dispute was raised by the appellants herein as their services were not being regularized by the respondent. the respondent-authority is a state within the meaning of art. 12 of the constitution of india. it is, therefore, constitutionally obliged to strictly comply with the requirements of arts. 14 and 16 thereof before making any appointment. indisputably, the conditions precedent for appointment of the officers and servants of the authority, as contained in the service rules had not been complied with. the appointments of the appellants were, therefore, void ab initio being opposed to public policy as also violative of arts. 14 and 16 of the constitution of india. a state before offering public service to a person must comply with the constitutional requirements of arts. 14 and 16 of the constitution. all actions of the state must conform to the constitutional requirements. a daily wager in absence of a statutory provision in this behalf would not be entitled to regularization. the recruitments of the appellants do not fall in any of the said categories. with a view to become eligible to be considered as a permanent employee or a temporary employee, one must be appointed in terms thereof. permanent employee has been divided in two categories (i) who had been appointed against a clear vacancy in one or more posts as probationers and otherwise; and (ii) whose name had been registered at muster roll and who has been given a ticket of permanent employee. a 'ticket of permanent employee' was, thus, required to be issued in terms of order 3 of the standard standing orders. the matter relating to recruitment is governed by the 1973 act and the 1987 rules. in absence of any specific directions contained in the schedule appended to the standing orders, the statute and the statutory rules applicable to the employees of the respondent shall prevail. their names had been appearing in the muster rolls maintained by the respondent. the scheme of the employees provident fund or the leave rules would not alter the nature and character of their appointments. the nature of their employment continues save and except a case where a statute interdicts which in turn would be subject to the constitutional limitations. for the purpose of obtaining a permanent status, constitutional and statutory conditions precedent therefor must be fulfilled. indore municipal corporation was not a party and, thus, no employee could be thrust upon it without its consent. it is furthermore evident that the persons appointed as daily wagers held no posts. the appointments, thus, had been made for the purpose of the project which, as indicated hereinbefore, came to an end. the appellants having been employed on daily wages did not hold any post. no post was sanctioned by the state government. they were not appointed in terms of the provisions of the statute. they were not, therefore, entitled to take the recourse of the doctrine of 'equal pay for equal work' as adumbrated in arts. 14 and 39(d) of the constitution of india. the burden was on the appellants to establish that they had a right to invoke the said doctrine in terms of art. 14 of the constitution of india. for the purpose of invoking the said doctrine, the nature of the work and responsibility attached to the post are some of the factors which were bound to be taken into consideration. furthermore, when their services had not been regularized and they had continued on a consolidated pay on ad hoc basis having not undergone the process of regular appointments, no direction to give regular pay scale could have been issued by the labour court. STATUTE s. 2(2) of the 1961 act, reads as follows : "nothing in this act shall apply to the employees in an undertaking to whom the fundamental and supplementary rules, civil services (classification, control and appeal) rules, civil services (temporary service) rules, revised leave rules, civil service regulations or any other rules or regulations that may be notified in this behalf by the state government in the official gazette apply. cl. 2 of the standard standing order reads as under : "2. classification of employees. employees shall be classified as (i) permanent , (ii) permanent seasonal,(iii. probationers, (iv) badlies, (v) apprentices, and (vi) temporary. i. a 'permanent' employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee; (vi. temporary employee' means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of cl. i) above. the 1961 act was enacted to provide for rules defining with sufficient precision in certain matters the conditions of employment of employees in undertakings in the state of madhya pradesh. by reason of the provisions of the said act, application of standard standing orders to undertakings has been provided in terms whereof the matters to be provided in the standard standing orders have been specified. under sub-s. (1) of section 6, the state government may, by notification, apply standard standing orders to such class of undertakings and from such date as may be specified therein. sub-s. (2) of s. 6 reads as under : "where immediately before the commencement of this act standing order are in force in respect of any undertaking, such standing orders shall, until standard standing orders are applied to such undertaking under sub-s. (1) continue in force as if they were made under this act.

this appeal with special leave is directed against the judgment and order of the labour appellate tribunal of india in a dispute regarding the workers claim for bonus. during the year 1948 the appellant made a profit of rs 1197648 11 9. it paid 24 3 per cent. dividend on ordinary shares being the maximum that could be paid under the public companies limitation of dividend ordinance of 1948 and also paid to the workers their full share of bonus at annas 4 in a rupee of their basic earnings. during the year 1949 the selling rates for cloth and yarn were controlled by the government and were approximately 4 per cent. below those obtained in 1948. the basic wages were increased from the 1st december 1948 by order of the government of uttar pradesh and the total wages paid were therefore higher than those in the previous year. there was moreover indiscipline amongst the workers and production suffered. there was a strike in the month of october and the mills were closed for nearly a month. further the management were unable to secure cotton which resulted in the curtailment of the working hours. as a result of all these circumstances the appellant suffered a trading loss of rs 502563 1 10. a sum of rs 250000 being the excess reserve for taxation was written back and a sum of rs 1001871 13 5 being the amount of reserve transferred from the investment account was also brought in. an aggregate sum of rs 1251871 13 5 was thus brought into the balance sheet by these two transfers. the trading loss was deducted from this amount leaving a credit balance of rs 749308 11 7 and that amount was shown as the profit for the year 1949 in the balance sheet for that year. the balance which had been brought forward from the previous year was added thereto and a dividend of 2434 per cent. was paid to the ordinary shareholders. the appellant also paid ex gratia to the workmen bonus at the rate of annas 2 per rupee of their basic earnings making it clear by their notification dated the 7th april 1950 that the directors had sanctioned the payment at that rate in spite of the appellant having suffered a trading loss for the year that it was being paid entirely at the discretion of the appellant and was not related to or connected with any contract of employment of any worker. on the 4th may 1950 the secretary of the respondent union petitioned to the provincial conciliation officer textile that there was more production in 1949 than in 1948 that there was no reason to hold that the profit in 1949 was less than in the previous year and that the rate of bonus was wrongly reduced and asked that bonus for 1949 should also be paid at the rate of annas 4 per rupee. the industrial dispute which thus arose was referred for enquiry and recording of an award to the regional conciliation board textile kanpur. the conciliation board by a majority decision repelled the contention of the appellant and awarded the payment of bonus at annas 4 per rupee. on an appeal taken by the appellant to the industrial court textiles and hosiery kanpur the industrial court accepted the contention of the appellant allowed the appeal and set aside the award. the respondent thereupon appealed to the labour appellate tribunal which substantially agreed with the industrial court on questions of fact as well as the general position in law but imported considerations of social justice and treating this as a special case where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that allowed the appeal and directed the appellant to pay to the workmen bonus at the rate of annas 4 per rupee within six weeks of their decision. the appellant filed this appeal against that decision after obtaining special leave from this court. both the industrial court as well as the labour appellate tribunal found as a fact that there was a trading loss of rs 502563 1 10 during the year 1949 and also. that the dividend of 2434 per cent. to the ordinary shareholders was distributed after transferring the aggregate sum of rs 1251871 13 5 from the reserves. the question which therefore arises for our consideration is mainly whether the workers are entitled to the payment of a bonus in spite of the employer having worked at a loss during the year and incidentally whether the workers have any right title or interest in the reserves and the undistributed profits of the previous years. the primary meaning of the word bonus according to the definition given in the new english dictionary is a boon or gift over and above what is nominally due as remuneration to the receiver and which is therefore something wholly to the good. this definition was adopted by stirling j in in re eddystone marine insurance co l r i894 w n 30 webster 's international dictionary defines bonus as something given in addition to what is ordinarily received by or strictly due to the recipient. the oxford concise dictionary defines it as something to the good into the bargain and as an example gratuity to workmen beyond their wages. corpus juris secundum volume xi at page 515 ascribes the following meanings to the word bonus an allowance in addition to what is usual current or stipulated a sum given or paid beyond what is legally required to be paid to the recipient something given in addition to what is ordinarily received by or strictly due to the recipient and adds it has been said to carry the idea of something uncertain and indefinite something which may or may not be paid depending on varying circumstances and under particular conditions has been said to imply a benefit accruing to him who offers it and an inducement to the offeree. this imports the conception of a boon a gift or a gratuity otherwise described as an ex gratia payment. the word bonus has however acquired a secondary meaning in the sphere of industrial relations. it is classified amongst the methods of wage payment. it has been used especially in the united states of america to designate an award in addition to the contractual wage. it is usually intended as a stimulus to extra effort but sometimes represents the desire of the employer to share with his workers the fruits of their common enterprise. vide encyclopaedia britannica volume iii page 856. the pocket part of the corpus juris secundum volume xi under the heading as compensation for services quotes the following passage from attorney general v city of woburn 317 mass 465 the word bonus is commonly used to denote an increase in salary or wages in contracts of employment. the offer of a bonus is the means frequently adopted to secure continuous service from an employee to enhance his efficiency and to augment his loyalty to his employer and the employee 's acceptance of the offer by performing the things called for by the offer binds employer to pay the bonus so called. it also gives another meaning of the word bonus viz increased compensation for services already rendered gratuitously or for a prescribed compensation where there is neither express or implied understanding that additional compensation may be granted. this imports the conception that even though the payment be not strictly due to the recipient nor legally enforceable by him a claim to the same may be laid by the employee under certain conditions and if such claim is entertained either by an agreement with the employer or by adjudication before a properly constituted tribunal as on an industrial dispute arising. the same would ripen into a legally enforceable claim. this position was recognised in sutton v attorney general 1923. t l r 294 297 where the earl of birkenhead observed the term bonus may of course be properly used to describe payments made of grace and not as of right. but it nevertheless may also include as here payments made because legally due but which the parties contemplate will not continue indefinitely and in national association of local government officers v bolton corporation 1943. a c 166 i87 this payment if made can not properly in my opinion be regarded as a mere gratuity. though there is an element of bounty in it the bounty if granted is given for good reasons of national policy. i do not see why this does not fall within the definition of trade dispute just as much as a dispute as to the rate of wages or salary. to a similar effect are the observations in kenicott v supervisors of wayne county 1873 83 u s 452 21 l ed. but second the meaning of the word bonus is not given to it by the objection. it is thus defined by webster. a premium given for a loan or a charter or other privilege granted to a company as the bank paid a bonus for its charter a sum paid in addition to a stated compensation. it is not a gift or gratuity but a sum paid for services or upon a consideration in addition to or in excess of that which would ordinarily be given 12. and also in great western garment co ltd v minister of national revenue 1948. d l r 25 233. a bonus may be a mere gift or gratuity as a gesture of goodwill and not enforceable or it may be something which an employee is entitled to on the happening of a condition precedent and is enforceable when the condition is fulfilled. but in both cases it is something in addition to or in excess of that which is ordinarily received. the textile labour inquiry committee defined bonus as follows the term bonus is applied to a cash payment made in addition to wages. it generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. there are however two conditions which have to be satisfied before a demand for bonus can be justified and they are 1 when wages fall short of the living standard and 2 the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. the demand for bonus becomes an industrial claim when either or both these conditions are satisfied. the principles for the grant of bonus were discussed and a formula was evolved by the full bench of the labour appellate tribunal in millowners association bombay v rashtreeya mill mazdoor sangh bombay 1950. 2 l l j 247as. both labour and capital contribute to the earnings of the industrial concern it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges and the following were prescribed as the first charges on gross profits viz 1 provision for depreciation 2 reserves for rehabilitation 3 a return at 6 per cent. on the paid up capital. a return on the working capital at a lesser rate than the return on paid up capital. the surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. it is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. if in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. bonus is not a deferred wage. because if it were so it would necessarily rank for precedence before dividends the dividends can only be paid out of profits and unless and until profits are made no occasion or question can also arise for distribution of any sum as bonus amongst the employees. if the industrial concern has resulted in a trading loss there would be no profits of the particular year available for distribution of dividends much less could the employees claim the distribution of bonus during that year. this has been clearly recognised even in the various decisions of the labour appellate tribunal e g nizam sugar factory ltd hyderabad v their workmen 1952. i l l j 386 textile mills madhya pradesh v their workmen 1952 2 l l j 625and famous cine laboratory v their workmen 1953. i l l j 466this was also the basis of the demand of the respondent in the case before us its case being that the appellant had reaped substantial profits during the year 1949. this case was negatived by the industrial court as well as the labour appellate tribunal both of whom held that the working of the appellant during the year 1949 had resulted in a loss. whereas the industrial court declined to grant the respondent any relief because the working of the appellant during the year had resulted in a loss the labour appellate tribunal made a special case for the respondent in spite of its concurrence with that finding of the industrial court. it is significant to observe that this principle was accepted by the labour appellate tribunal itself. as at present advised a claim for bonus which had been rested on profits earned should ordinarily be determined on the basis of the profits earned in the year under claim and that the scale of bonus should be determined on the quantum of profits earned in the year. so it would follow that if there is trading loss in the year under claim bonus should not ordinarily be awarded. it however observed but in our opinion that should not be the universal rule. considerations of social justice can not be disregarded altogether in relations between capital and labour. there may be special cases and we consider the case before us to be one where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that. the labour appellate tribunal did not accept the contention of the respondent that bonus should be linked to dividends nor did it rest its decision on the respondent having a right title and interest in the reserves and the undistributed profits of the appellant. linking of bonus to dividend would obviously create difficulties. because if that theory was accepted a company would not declare any dividends but accumulate the profits build up reserves and distribute those profits in the shape of bonus shares or reduce the capital in which event the workers would not be entitled to claim anything as and by way of bonus. the workers not being members of the company would also not have any right title and interest in the reserves or the undistributed profits which would form part of the assets of the company. even on a winding up of a company the property of the company would be applied in satisfaction of its liabilities pari passu and unless the articles of association of the company otherwise provided in distribution amongst the members according to their rights and interest in the company. the employees would in no event be entitled to any share or interest in the assets and the capital of the company. a transfer of moneys from these reserves or the undistributed profits would therefore not enure for the benefit of the workers. the shareholders only would be entitled to such benefit and the mere fact that dividends were declared and paid to the shareholders out of such reserves and undistributed profits would not entitle the workers to demand bonus when in fact the working of the industrial concern during the particular year had showed a loss. it has also got to be remembered that the labour force employed in an industrial concern is a fluctuating body and it can not be predicated of the labour force in a particular year that it represents the past and the present workers so that it can claim to demand bonus out of the reserves or undistributed profits of the previous years. on the accounts of each year being made up and the profits of the industrial concern being ascertained the workers during the particular year have their demand for bonus fully satisfied out of the surplus profits and the balance of profits is allocated and carried over in the accounts. no further claimed payment of bonus out of those reserves or undistributed profits can therefore survive. to admit the claim for bonus out of the reserves transferred to the profit and loss account would tantamount to allowing a second bonus on the same profits in respect of which the workers had already received their full bonus in the previous year. the labour force which earns the profits of a particular year by collaborating with the employers is distinct from the one which contributed to the profits of the previous years and there is no continuity between the labour forces which are employed in the industrial concern during the several years. the ratio which applies in the case of the shareholders who acquire the right title and interest of their predecessorsin interest does not apply to the labour force and the fact that the shareholders get a dividend by transfer of funds from the reserves and undistributed profits of the previous years would not entitle the workers to demand bonus out of those funds if the working of the industrial concern during the particular year has resulted in a trading loss. the considerations of social justice imported by the labour appellate tribunal in arriving at the decision in favour of the respondent were not only irrelevant but untenable. social justice is a very vague and indeterminate expression and no clear cut definition can be laid down which will cover all the situations. mr isaacs the learned counsel for the respondent. attempted to give a definition in the following terms social justice connotes the balance of adjustments of the various interests concerned in the social and economic structure of the state in order to promote harmony upon an ethical and economic basis and he stated that there were three parties concerned here viz the employers the labour and the state itself and the conception of social justice had to be worked out in this context. without embarking upon a discussion as to the exact connotation of the expression social justice we may only observe that the concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. indeed the full bench of the labour appellate tribunal evolved the abovequoted formula with a view to dispensing social justice between the various parties concerned. it adopted the following method of approach at page 1258 of that judgment our approach to this problem is motivated by the requirement that we should ensure and achieve industrial peace which is essential for the development and expansion of industry. this can be achieved by having a contented labour force on the one hand and on the other hand an investing public who would be attracted to the industry by a steady and progressive return on capital which the industry may be able to offer. this formula was reiterated in textile mills m p their workmen 1952 2 l l j 625 and famous cine laboratory v their workmen 1953 1 l l j 466 and in the latter case it deprecated the idea of adjudicators importing considerations of social justice which were not comprised in that formula and what is social justice. social justice is not the fancy of any individual adjudicator if it were so then ideas of social justice might vary from adjudicator to adjudicator over all parts of india. in our full bench decision see 1950 2 l l j 1247 we carefully considered the question of social justice in relation to bonus and there we equated the rights and liabilities of employers and workmen with a view to achieving a just formula for the computation of bonus. that full bench decision stands and this tribunal and all other tribunals are bound by it. without committing ourselves to the acceptance of the above formula in its entirety we may point out that the labour appellate tribunal did not apply its own formula to the facts of the present case. it is also significant to note that even while importing considerations of social justice the labour appellate tribunal was oblivious of the fact that it was by their own acts of indiscipline and strike that the workers of the appellant company themselves contributed to the trading losses incurred by the appellant and it hardly lay in their mouth then to contend that they were none the less entitled to a payment of bonus commensurate with the dividend paid to the shareholders out of the undistributed profits of the previous years. the labour appellate tribunal also overlooked the fact that but for the public companies limitation of dividend. ordinance of 1948 the whole of the profits of 1948 could have been distributed after paying the workers bonus in that year of four annas in the rupee. we may before concluding refer to an argument which was addressed to us by mr isaacs the learned counsel for the respondent that this court under article 136 should not interfere with the decisions of the tribunals set up by the industrial disputes act 1947. this contention can be shortly answered by referring to our decision in bharat bank ltd delhi v employees of the bharat bank ltd delhi 1950 s c r 459 1950 indlaw sc 48 where we held that the industrial tribunals were tribunals within the meaning of article 136 and further that article 136 has vested in this court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of india has not given a fair deal to a litigant. vide dhakeswari cotton mills ltd v commissioner of income tax west bengal 1954 indlaw sc 213. the result therefore is that the decision of the labour appellate tribunal appealed against must be reversed and that of the industrial court textiles and hosiery kanpur restored. the appeal will accordingly be allowed with costs. appeal allowed.

FACTS this appeal with special leave is directed against the judgment and order of the labour appellate tribunal of india in a dispute regarding the workers' claim for bonus. during the year 1948 the appellant made a profit of rs. 11,97,648-11-9. it paid 24 3 per cent. dividend on ordinary shares, being the maximum that could be paid under the public companies (limitation of dividend) ordinance of 1948 and also paid to the workers their full share of bonus at annas 4 in a rupee of their basic earnings. during the year 1949 the selling rates for cloth and yarn were controlled by the government and were approximately 4 per cent. below those obtained in 1948. the basic wages were increased from the 1st december, 1948, by order of the government of uttar pradesh and the total wages paid were therefore higher than those in the previous year. there was moreover indiscipline amongst the workers and production suffered. there was a strike in the month of october and the mills were closed for nearly a month. further the management were unable to secure cotton which resulted in the curtailment of the working hours. as a result of all these circumstances the appellant suffered a huge trading loss. the appellant also paid ex gratia to the workmen bonus at the rate of annas 2 per rupee of their basic earnings making it clear by their notification dated the 7th april, 1950, that the directors had sanctioned the payment at that rate in spite of the appellant having suffered a trading loss for the year, that it was being paid entirely at the discretion of the appellant and was not related to or connected with any contract of employment of any worker. the secretary of the respondent union petitioned to the provincial conciliation officer (textile) that there was more production in 1949 than in 1948, that there was no reason to hold that the profit in 1949 was less than in the previous year and that the rate of bonus was wrongly reduced and asked that bonus for 1949 should also be paid at the rate of annas 4 per rupee. the industrial dispute which thus arose was referred for enquiry and recording of an award to the regional conciliation board (textile), kanpur. the conciliation board by a majority decision repelled the contention of the appellant and awarded the payment of bonus at annas 4 per rupee. on an appeal taken by the appellant to the industrial court (textiles and hosiery), kanpur, the industrial court accepted the contention of the appellant, allowed the appeal and set aside the award. the respondent thereupon appealed to the labour appellate tribunal which substantially agreed with the industrial court on questions of fact as well as the general position in law but imported considerations of social justice and treating this as a special case " where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that ", allowed the appeal and directed the appellant to pay to the workmen bonus at the rate of annas 4 per rupee within six weeks of their decision. the appellant filed this appeal against that decision after obtaining special leave from this court. ARGUMENT the learned counsel for the respondent. attempted to give a definition in the following terms : "social justice connotes the balance of adjustments of the various interests concerned in the social and economic structure of the state, in order to promote harmony upon an ethical and economic basis" and he stated that there were three parties concerned here, viz. the employers, the labour and the state itself, and the conception of social justice had to be worked out in this context. without embarking upon a discussion as to the exact connotation of the expression "social justice" we may only observe that the concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. ISSUE the question which arises for our consideration is mainly whether the workers are entitled to the payment of a bonus in spite of the employer having worked at a loss during the year and incidentally whether the workers have any right, title or interest in the reserves and the undistributed profits of the previous years. ANALYSIS the primary meaning of the word " bonus " imports the conception of a boon, a gift or a gratuity otherwise described as an ex gratia payment. the word 'bonus' has however acquired a secondary meaning in the sphere of industrial relations. it is classified amongst the methods of wage payment. in sutton v. attorney-general , (1923) 39 t.l.r. 294, 297; where "the term 'bonus' may of course be properly used to describe payments made of grace and not as of right. but it nevertheless may also include, as here, payments made because legally due but which the parties contemplate will not continue indefinitely" there are however two conditions which have to be satisfied before a demand for bonus can be justified and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. the demand for bonus becomes an industrial claim when either or both these conditions are satisfied. the surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. it is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. if in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. the dividends can only be paid out of profits and unless and until profits are made no occasion or question can also arise for distribution of any sum as bonus amongst the employees. this has been clearly recognised even in the various decisions of the labour appellate tribunal, e.g., nizam sugar factory ltd., hyderabad v. their workmen, (1952) i l.l.j. 386; textile mills, madhya pradesh v. their workmen, (1952) 2 l.l.j. 625;and famous cine laboratory v. their workmen, (1953) i l.l.j. 466; this was also the basis of the demand of the respondent in the case before us, its case being that the appellant had reaped substantial profits during the year 1949. on the accounts of each year being made up and the profits of the industrial concern being ascertained the workers during the particular year have their demand for bonus fully satisfied out of the surplus profits and the balance of profits is allocated and carried over in the accounts. no further claimed payment of bonus out of those reserves or undistributed profits can therefore survive. it is also significant to note that even while importing considerations of social justice the labour appellate tribunal was oblivious of the fact that it was by their own acts of indiscipline and strike that the workers of the appellant company themselves contributed, to the trading losses incurred by the appellant and it hardly lay in their mouth then to contend that they were none the less entitled to a payment of bonus commensurate with the dividend paid to the shareholders out of the undistributed profits of the previous years. the labour appellate tribunal also overlooked the fact that but for the public companies (limitation of dividend) ordinance of 1948 the whole of the profits of 1948 could have been distributed after paying the workers bonus in that year of four annas in the rupee.

FACTS this appeal with special leave is directed against the judgment and order of the labour appellate tribunal of india in a dispute regarding the workers' claim for bonus. during 1948 the appellant made a profit of rs. 11,97,648-11-9. it paid 24. 3 per cent dividend on ordinary shares, being the maximum that could be paid under the public companies (limitation of dividend) ordinance of 1948 and also paid to the workers their full share of bonus at annas 4 in a rupee of their basic earnings. during 1949 the selling rates for cloth and yarn were controlled by the government and were approximately 4 per cent. below those obtained in 1948. the basic wages were increased from the 1st december, 1948, by order of the government of uttar pradesh and the total wages paid were therefore higher than those in the previous year. there was moreover indiscipline amongst the workers and production suffered. there was a strike in october and the mills were closed for nearly a month. further the management were unable to secure cotton which resulted in the curtailment of the working hours. as a result of all these circumstances the appellant suffered a huge trading loss. the appellant also paid ex gratia to the workmen bonus at the rate of annas 2 per rupee of their basic earnings making it clear by their notification 7th april, 1950, that the directors had sanctioned the payment at that rate in spite of the appellant having suffered a trading loss for the year, that it was being paid entirely at the discretion of the appellant and was not related to or connected with any contract of employment of any worker. the secretary of the respondent union petitioned to the provincial conciliation officer (textile) that there was more production in 1949 than in 1948, that there was no reason to hold that the profit in 1949 was less than in the previous year and that the rate of bonus was wrongly reduced and asked that bonus for 1949 should also be paid at the rate of annas 4 per rupee. the industrial dispute which thus arose was referred for enquiry and recording of an award to the regional conciliation board (textile), kanpur. the conciliation board by a majority decision repelled the contention of the appellant and awarded the payment of bonus at annas 4 per rupee. on an appeal taken by the appellant to the industrial court (textiles and hosiery), kanpur, the industrial court accepted the contention of the appellant, allowed the appeal and set aside the award. the respondent thereupon appealed to the labour appellate tribunal which substantially agreed with the industrial court on questions of fact as well as the general position in law but imported considerations of social justice and treating this as a special case " where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that ", allowed the appeal and directed the appellant to pay to the workmen bonus . the appellant filed this appeal against that decision after obtaining special leave from this court. ARGUMENT "social justice connotes the balance of adjustments of the various interests concerned in the social and economic structure of the state, in order to promote harmony upon an ethical and economic basis" and he stated that there were three parties concerned here, viz. the employers, the labour and the state itself, and the conception of social justice had to be worked out in this context. without embarking upon a discussion as to the exact connotation of the expression "social justice" we may only observe that the concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. ISSUE the question which arises for our consideration is mainly whether the workers are entitled to the payment of a bonus in spite of the employer having worked at a loss during the year and incidentally whether the workers have any right, title or interest in the reserves and the undistributed profits of the previous years. ANALYSIS the primary meaning of the word " bonus " imports the conception of a boon, a gift or a gratuity otherwise described as an ex gratia payment. the word 'bonus' has however acquired a secondary meaning in the sphere of industrial relations. it is classified amongst the methods of wage payment. in sutton v. attorney-general , (1923) 39 t.l.r. 294, 297; where "the term 'bonus' may of course be properly used to describe payments made of grace and not as of right. but it nevertheless may also include, as here, payments made because legally due but which the parties contemplate will not continue indefinitely" . there are however two conditions which have to be satisfied before a demand for bonus can be justified and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. the demand for bonus becomes an industrial claim when either or both these conditions are satisfied. the surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. if in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. the dividends can only be paid out of profits and unless and until profits are made no occasion or question can also arise for distribution of any sum as bonus amongst the employees. this was also the basis of the demand of the respondent in the case before us, its case being that the appellant had reaped substantial profits during 1949. on the accounts of each year being made up and the profits of the industrial concern being ascertained the workers during the particular year have their demand for bonus fully satisfied out of the surplus profits and the balance of profits is allocated and carried over in the accounts. no further claimed payment of bonus out of those reserves or undistributed profits can therefore survive. it is also significant to note that even while importing considerations of social justice the labour appellate tribunal was oblivious of the fact that it was by their own acts of indiscipline and strike that the workers of the appellant company themselves contributed, to the trading losses incurred by the appellant and it hardly lay in their mouth then to contend that they were none the less entitled to a payment of bonus commensurate with the dividend paid to the shareholders out of the undistributed profits of the previous years. the labour appellate tribunal also overlooked the fact that but for the public companies (limitation of dividend) ordinance of 1948 the whole of the profits of 1948 could have been distributed after paying the workers bonus in that year of four annas in the rupee. in textile mills, m. p. their workmen, (1952) 2 l.l.j. 625; and famous cine laboratory v. their workmen, (1953) 1 l.l.j. 466; and in the latter case it deprecated the idea of adjudicators importing considerations of social justice which were not comprised in that formula :- "and what is social justice ? social justice is not the fancy of any individual adjudicator; if it were so then ideas of social justice might vary from adjudicator to adjudicator over all parts of india. in our full bench decision (see 1950, 2 l.l.j. 1247), we carefully considered the question of social justice in relation to bonus, and there we equated the rights and liabilities of employers and workmen with a view to achieving a just formula for the computation of bonus. that full bench decision stands, and this tribunal and all other tribunals are bound by it.

municipal corporation of delhi aggrieved against the judgment and final order dated 26 03 2004 passed by the high court delhi in criminal revision petition no 185 of 2004 by which order the high court gave the benefit of probation under section 4 of the probation of offenders act1958. herein after referred to as pob act to the second respondent gurcharan singh but maintained the conviction preferred the above appeal. the brief facts leading to the filing of the above appeal are as under. one mr m k verma. pw 4junior engineer civil line zone visited 189 prem gali punja sharif mori gate where he found unauthorized construction going at the first floor of the said plot. f i r was prepared on the report of mr m k verma who forwarded the f i r before zonal engineer who ordered to issue notice under section 343344 of the delhi municipal corporation act1957 for short the dmc act subsequently the second respondent along with kuldeep singh were prosecuted for commission of offences under sections 332 and 461 of the dmc act before the designated municipal court. the trial court after the conclusion of the trial convicted the second respondent under sections 332 and 461 of the dmc act and sentenced him to six months simple imprisonment and imposed a fine of rs 5000 annexure p 1. aggrieved by that order the second respondent accused filed an appeal before the sessions court delhi. the said court by an order and judgment dated 23 3 2004 dismissed the appeal by holding that there was no infirmity in the order passed by the trial court annexure p 2. against the judgment and order dated 23 3 2004the accused filed criminal revision petition no 185 of 2004 before the high court delhi. at the time of arguments the advocate for the accused submitted before the high court that the accused did not wish to challenge the conviction on merits and stated it a fit case of accused to be admitted to the benefit of pob act on the ground that the accused faced trial for 12 years in the lower courts and remained in jail for three days. the high court vide its order dated 26 3 2004 held that the accused suffered the agony of trial lasting for 12 years. besides that he has already undergone some period in custody. the high court also observed that there is no allegation that the petitioner accused is a previous convict and it further held that the accused deserved the benefit of probation under section 4 of the pob act and while maintaining the conviction of the respondent accused the sentence of imprisonment and fine as awarded to him was set aside. the appellant aggrieved by the judgment of the high court preferred the above appeal by way of special leave petition before this court. we have perused the entire pleadings orders and judgments passed by the lower courts and also of the high court the other annexures in particular annexures p 1 and p 2and records annexed to this appeal and also heard the arguments of mr ashwani kumar learned senior counsel appearing for the appellant mr vikas sharma learned counsel appearing for respondent no 1 and mr jaspal singh learned senior counsel appearing for the second respondent. learned senior counsel appearing for the appellant submitted that the high court before extending the benefit of pob act to the accused did not call for a report from the authorities to check upon the conduct of the accused respondent as per section 42 of the pob act and that the appellant mcd was also not given time to file their counter affidavit on the question of sentence. he further submitted that the high court while passing the impugned order and judgment did not take into consideration that the accused respondent had been convicted in another criminal case no 202 of 1997 by the court of metropolitan magistrate patiala house new delhi. in the said case the accused respondent was convicted under section 332461 of the dmc act and sentenced to six months simple imprisonment with a fine of rs 5000. learned senior counsel appearing for the appellant further submitted that there was no good reason for letting the respondent off by granting to him the said benefit of pob act particularly keeping in view the large scale irregularity and unauthorized constructions carried by the builders in delhi despite strict direction of the municipal authorities and courts passing various orders from time to time against the unauthorized constructions. it was further submitted that the high court should not have waived off the payment of fine amount by the accused respondent and that the high court ought to have taken into consideration that the respondent has been in jail for only three days and had not put in substantial period in custody. it was further submitted by learned senior counsel appearing for the appellant that the court shall not direct release of offender unless it is satisfied that the offender or his surety if any has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. it was also contended that before making any order under section 41 of the pob act the court shall take into consideration the report if any of the probation officer concerned in relation to the case which the high court has miserably failed to do so. therefore learned senior counsel appearing for the appellant prayed that order dated 26 3 2004 in crl. rev pet. no 185 of 2004 be set aside and appropriate orders be passed in this appeal. learned senior counsel appearing for the contesting respondent submitted that the order of the high court does not require any reconsideration by this court and that the high court while extending the benefit of pob act had clearly recorded in the order that the counsel for the state of delhi is not averse to the grant of benefit of probation to the answering respondent and therefore the requirement under section 42 of the pob act has been waived off by the state and that the high court took into consideration the fact that the answering respondent has faced the agony of trial for over 12 years and has also undergone some period in custody and while maintaining the conviction of the answering respondent the benefit of probation was extended to him. it was therefore submitted that the high court passed the said order in the presence of the counsel of all the parties. learned senior counsel appearing for the second respondent submitted that in s t no 202 of 1997a judgment was given by the metropolitan magistrate on 10 9 2002 and the respondent filed an appeal no 374 of 2002 before the court of sessions patiala house new delhi challenging the said order of conviction and in that appeal the court of additional sessions judge patiala house suspended the sentence during the pendency of the appeal upon furnishing a personal bond for a sum of rs 25000 with one surety of the like amount to the satisfaction of the trial court. it was therefore submitted that the sentence imprisonment awarded by the metropolitan magistrate has been suspended under section 389 of the criminal procedure code by the court of additional sessions judge delhi in view of the pendency of the appeal against the order of conviction is a continuation of proceedings and therefore there is no conviction against the answering respondent so long as the same is not decided by the court of sessions. it was also submitted that the requirement of calling of a report from the probationer officer under section 42 of the pob act has been waived off by the counsel for the state of delhi and that the counsel for the mcd also did not raise any objection before the high court. it was further contended that the respondent has not contested the revision in the high court on merits and confined his submission to the benefit of section 4 of the pob act being extended to him. therefore there is no occasion for the high court to go into the issue of extent of constructions being raised by the answering respondent. he further contended that the trial court has committed serious error in exercising jurisdiction while not granting the benefit of probation to the answering respondent and the order of the trial court was therefore rightly and justifiable modified by the high court. concluding his arguments he submitted that the respondent has been released after compliance of the order passed by the high court by furnishing the bone of good conduct and security to the satisfaction of the additional court of metropolitan magistrate delhi and there is no report of any misconduct or breach of the bond of good conduct by the answering respondent since the date of the order of the high court therefore the order of the high court is not liable to be interfered with. in the above background two questions of law arise for consideration by this court 1 whether the high court was correct in extending the benefit of the probation of offenders act1958 to the accused respondent without calling for a report from the authorities relating to the conduct of the respondent as per section 4 of the act. 2 whether. the high court was correct in passing the impugned judgment in view of the fact that the respondent has been convicted in another criminal case no 202 of 1997 by the trial court new delhi. before proceeding further it would be beneficial to reproduce section 4 of the probation of offenders act1958 which is extracted below for ready reference. power of court to release certain offenders on probation of good conduct. 1 when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that having record to the circumstances of the case including the nature of the offence and the character of the offender it is expedient to release him on probation of good conduct then notwithstanding anything contained in any other law for the time being in force the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and in the meantime to keep the peace and be of good behaviour provided that the court shall no direct such release of an offender unless it is satisfied that the offender or his surety if any has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. 2 before making any order under sub section. 1the court shall take into consideration the report if any of the probation officer concerned in relation to the case. it is the specific case of the appellant herein that the high court has not afforded to the appellant an opportunity to file counter affidavit. the appellant would have filed the orders passed by the criminal courts convicting the respondent herein had an opportunity been given to the appellant. the high court while passing the impugned order and judgment did not take into consideration that the accused respondent has been convicted in another criminal case no 202 of 1997 by the court of metropolitan magistrate patiala house new delhi. in the said case the accused has been convicted under sections 332461 of the dmc act and sentenced to six months simple imprisonment with fine of rs 5000 in our view there was no good reason for letting the respondent off by granting to him the said benefit of pob act particularly keeping in view the large scale irregularity and unauthorized constructions carried by the builders in delhi despite strict direction of the municipal authorities and despite of the courts passing various orders from time to time against the unauthorized construction. the high court also failed to take into consideration that the respondent has been in jail for three days and had not put in substantial period in custody. the high court vide its order impugned in this appeal has observed that there is no allegation that the respondent is a previous convict. in fact as could be seen from the annexures filed along with this appeal the respondent has been convicted for offence under sections 332 and 461 of the dmc act. the trial court heard the respondent on sentence also and passed the following order convict in person with counsel heard on sentence. it is contended that he is first offender. he is not a previous convict nor habitual offender. he has faced trail since 1991 he is aged about 57 years. he is not doing any business due to his bad health. considering the above facts and circumstances and gravity of the nature of the offence i e extent of construction raised by the accused for commercial as 11 shops at ground floor and 11 shops at first floor i am not inclined to release the accused convict on probation. hence request declined. in the interest of justice sentence of six months si with fine of rs 5000 i d one month si is imposed upon the convict for offence u s 332461 dmc act. fine deposited. convict remained for sentence. the additional sessions judge new delhi also in civil appeal no 7 of 2002 annexure p 2 dismissed the appeal as there is no infirmity in the order of the trial court and uphold the conviction order passed by the trial court on the point of sentence. the appellate court held that no interference is required in the order passed by the trial court regarding point of sentence. since the appellant mcd was not given any opportunity by the high court to file conduct report of the respondent the order impugned in this appeal is liable to be set aside. this apart the respondent did not also disclose the fact in the criminal revision filed before the high court that he has also been convicted in another criminal case no 202 of 1997 by the court of metropolitan magistrate patiala house new delhi. thus the contesting respondent has come to the high court with unclean hands and withholds a vital document in order to gain advantage on the other side. in our opinion he would be guilty of playing fraud on the court as well as on the opposite party. a person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. we have no hesitation to say that a person whose case is based on falsehood has no right to approach the court and he can be summarily thrown out at any stage of the litigation. in the instant case non production of the order and even non mentioning of the conviction and sentence in the criminal case no 202 of 1997 tantamounts to playing fraud on the court. a litigant who approaches the court is bound to produce all documents which are relevant to the litigation. if he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party. the second respondent in our opinion was not justified in suppressing the material fact that he was convicted by the magistrate on an earlier occasion. since the second respondent deliberately suppressed the crucial and important fact we disapprove strongly and particularly the conduct of the second respondent and by reason of such conduct the second respondent disentitled himself from getting any relief or assistance from this court. we however part with this case with heavy heart expressing our strong disapproval of the conduct and behaviour but direct that the second respondent to pay a sum of rs 10000 by way of cost to the appellant herein. we have already reproduced section 4 of the pob act. it applied to all kinds of offenders whether under or above 21 years of age. this section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. the only limitation imposed by section 6 is that in the first instance an offender under twenty one years of age will not be sentenced to imprisonment. while extending benefit of this case the discretion of the court has to be exercised having regard to the circumstances in which the crime was committed the age character and antecedents of the offender. such exercise of discretion needs a sense of responsibility. the offender can only be released on probation of good conduct under this section when the court forms an opinion having considered the circumstances of the case the nature of the offence and the character of the offender that in a particular case the offender should be released on probation of good conduct. the section itself is clear that before applying the section the magistrate should carefully take into consideration the attendant circumstances. the second respondent is a previous convict as per the records placed before us. such a previous convict can not be released in view of section 4 of the pob act. the court is bound to call for a report as per section 4 of pob act but the high court has failed to do so although the court is not bound by the report of the probationer officer but it must call for such a report before the case comes to its conclusion. the word shall in sub section 2 of section 4 is mandatory and the consideration of the report of the probationer officer is a condition precedent to the release of the accused as reported in the case of state v naguesh g shet govenkar and anr air 1970. goa 49 1969 indlaw goa 8 and a release without such a report. would therefore be illegal. in the case of ram singh and ors v. state of haryana1971 3 scc 914 1970 indlaw sc 513a bench of two judges of this court in paragraph 16 of the judgment observed as under counsel for the appellants invoked the application of probation of offenders act. sections 4 and 6 of the act indicate the procedure requiring the court to call for a report from the probation officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. these facts are of primary importance before the court can pass an order under the probation of offenders act. this plea can not be entertained in this court. in the case of r mahalingam v g padmavathi and anr. 1979 crl. lj noc 20 mad. the court observed as under if any report is filed by the probation officer the court is bound to consider it. obtaining such a report of the probation officer is mandatory since the sub s 1 of s 4 says that the court shall consider the report of the probation officer. words. if any do not mean that the court need not call for a report from the probation officer. the words if any would only cover a case where notwithstanding such requisition the probation officer for one reason or other has not submitted a report. before deciding to act under s 4 1it is mandatory on the part of the court to call for a report from the probation officer and if such a report is received it is mandatory on the part of the court to consider the report. but if for one reason or the other such a report is not forthcoming the court has to decide the matter on other materials available to it. in the instant case the magistrate passed order releasing the accused on probation without taking into consideration their character. held the requirement of s 41 was not fulfilled and therefore the case remanded. since the high court has disposed of the criminal revision without giving an opportunity of filing counter affidavit to the counsel for the mcd and that the respondent did not disclose the fact in the criminal revision filed before the high court that he has also been convicted in another criminal case no 202 of 1997the judgment impugned in this appeal can not be allowed to stand. we therefore have no hesitation in setting aside the order impugned and remit the matter to the high court for fresh disposal strictly in accordance with law. the appeal is accordingly allowed with costs of rs 10000 to be paid by the second respondent to the appellant as indicated in paragraph supra. appeal allowed.

FACTS one mr.m.k.verma ,junior engineer, mori gate where he found unauthorized construction going at the first floor of the said plot. f.i.r.was prepared on the report of mr.m.k.verma who forwarded the f.i.r.before zonal engineer,who ordered to issue notice under section 343/344 of the delhi municipal corporation act,1957 (for short the "dmc act"). subsequently,the second respondent along with kuldeep singh were prosecuted for commission of offences under sections 332 and 461 of the dmc act before the designated municipal court. the appellant,aggrieved by the judgment of the trial court and the high court,preferred the above appeal by way of special leave petition before this court. ARGUMENT the accused did not wish to challenge the conviction on merits and stated it a fit case of accused to be admitted to the benefit of pob act on the ground that the accused faced trial for 12 years in the lower courts and remained in jail for three days. before extending the benefit of pob act to the accused did not call for a report from the authorities to check upon the conduct of the accused-respondent as per section 4(2) of the pob act and that the appellant-mcd was also not given time to file their counter affidavit on the question of sentence. there was no good reason for letting the respondent off by granting to him the said benefit of pob act,particularly keeping in view the large scale irregularity and unauthorized constructions carried by the builders in delhi despite strict direction of the municipal authorities and courts passing various orders from time to time against the unauthorized constructions. ISSUE two questions of law arise for consideration by the court. 1.whether the high court was correct in extending the benefit of the probation of offenders act,1958 to the accused respondent without calling for a report from the authorities relating to the conduct of the respondent as per section 4 of the act. 2.whether the high court was correct in passing the impugned judgment in view of the fact that the respondent has been convicted in another criminal case no.202 of 1997 by the trial court,new delhi." ANALYSIS the high court has not afforded to the appellant an opportunity to file counter affidavit. the high court while passing the impugned order and judgment did not take into consideration that the accused-respondent has been convicted in another criminal case by the court of metropolitan magistrate,patiala house,new delhi. in the said case,the accused has been convicted under sections 332/461 of the dmc act and sentenced to six months simple imprisonment with fine of rs.5000. there was no good reason for letting the respondent off by granting to him the said benefit of pob act particularly,keeping in view the large scale irregularity and unauthorized constructions carried by the builders in delhi despite strict direction of the municipal authorities and despite of the courts passing various orders from time to time against the unauthorized construction. the high court also failed to take into consideration that the respondent has been in jail for three days and had not put in substantial period in custody. in fact,as could be seen from the annexures filed along with this appeal,the respondent has been convicted for offence under sections 332 and 461 of the dmc act. since the appellant-mcd was not given any opportunity by the high court to file conduct report of the respondent,the order impugned in this appeal is liable to be set aside. the respondent did not also disclose the fact in the criminal revision filed before the high court that he has also been convicted in another criminal case. he would be guilty of playing fraud on the court as well as on the opposite party. a person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. a litigant who approaches the court is bound to produce all documents which are relevant to the litigation. if he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party. since the second respondent deliberately suppressed the crucial and important fact,the court disapproved strongly and particularly,the conduct of the second respondent and by reason of such conduct,the second respondent disentitled himself from getting any relief or assistance from this court. the court however directed the second respondent to pay a sum of rs.10,000 by way of cost to the appellant herein. the offender can only be released on probation of good conduct under this section when the court forms an opinion,having considered the circumstances of the case,the nature of the offence and the character of the offender,that in a particular case,the offender should be released on probation of good conduct. the second respondent is a previous convict as per the records placed before us. such a previous convict cannot be released in view of section 4 of the pob act. the word "shall" in sub-section (2) of section 4 is mandatory and the consideration of the report of the probationer officer is a condition precedent to the release of the accused as reported in the case of state v.naguesh g.shet govenkar and anr.,air (1970) goa 49 1969 indlaw goa 8 and a release without such a report would,therefore,be illegal. in the case of ram singh and ors.v.state of haryana,[1971] 3 scc 914 1970 indlaw sc 513, it was observed that sections 4 and 6 of the act indicate the procedure requiring the court to call for a report from the probation officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. these facts are of primary importance before the court can pass an order under the probation of offenders act. this plea cannot be entertained in this court. since the high court has disposed of the criminal revision without giving an opportunity of filing counter affidavit to the counsel for the mcd and that the respondent did not disclose the fact in the criminal revision filed before the high court that he has also been convicted in another criminal case, the judgment impugned in this appeal cannot be allowed to stand. the court, therefore had no hesitation in setting aside the order impugned and remit the matter to the high court for fresh disposal strictly in accordance with law. STATUTE section 4 of the probation of offenders act,1958- power of court to release certain offenders on probation of good conduct. section 4 of the pob act applies to all kinds of offenders whether under or above 21 years of age. this section 4 of the pob act is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. the only limitation imposed by section 6 of the pob act is that in the first instance an offender under twenty one years of age,will not be sentenced to imprisonment.

FACTS one mr.m.k.verma ,junior engineer, mori gate where he found unauthorized construction going at the first floor of the said plot. f.i.r.was prepared on the report of mr.m.k.verma who forwarded the f.i.r.before zonal engineer,who ordered to issue notice under section 343/344 of the delhi municipal corporation act,1957 (for short the "dmc act"). subsequently,the second respondent along with kuldeep singh were prosecuted for commission of offences under sections 332 and 461 of the dmc act before the designated municipal court. the appellant,aggrieved by the judgment of the trial court and the high court,preferred the above appeal by way of special leave petition before this court. ARGUMENT the accused did not wish to challenge the conviction on merits and stated it a fit case of accused to be admitted to the benefit of pob act on the ground that the accused faced trial for 12 years in the lower courts and remained in jail for three days. before extending the benefit of pob act to the accused did not call for a report from the authorities to check upon the conduct of the accused-respondent as per section 4(2) of the pob act and that the appellant-mcd was also not given time to file their counter affidavit on the question of sentence. there was no good reason for letting the respondent off by granting to him the said benefit of pob act,particularly keeping in view the large scale irregularity and unauthorized constructions carried by the builders in delhi despite strict direction of the municipal authorities and courts passing various orders from time to time against the unauthorized constructions. ISSUE two questions of law arise for consideration by this court. 1.whether the high court was correct in extending the benefit of the probation of offenders act,1958 to the accused respondent without calling for a report from the authorities relating to the conduct of the respondent as per section 4 of the act. 2.whether the high court was correct in passing the impugned judgment in view of the fact that the respondent has been convicted in another criminal case no.202 of 1997 by the trial court,new delhi." ANALYSIS the high court has not afforded to the appellant an opportunity to file counter affidavit. the appellant would have filed the orders passed by the criminal courts convicting the respondent herein had an opportunity been given to the appellant. the high court while passing the impugned order and judgment did not take into consideration that the accused-respondent has been convicted in another criminal case by the court of metropolitan magistrate,patiala house,new delhi. in the said case,the accused has been convicted under sections 332/461 of the dmc act and sentenced to six months simple imprisonment with fine of rs.5000. in our view,there was no good reason for letting the respondent off by granting to him the said benefit of pob act particularly,keeping in view the large scale irregularity and unauthorized constructions carried by the builders in delhi despite strict direction of the municipal authorities and despite of the courts passing various orders from time to time against the unauthorized construction. the high court also failed to take into consideration that the respondent has been in jail for three days and had not put in substantial period in custody. the high court vide its order impugned in this appeal has observed that there is no allegation that the respondent is a previous convict. in fact,as could be seen from the annexures filed along with this appeal,the respondent has been convicted for offence under sections 332 and 461 of the dmc act. since the appellant-mcd was not given any opportunity by the high court to file conduct report of the respondent,the order impugned in this appeal is liable to be set aside. the respondent did not also disclose the fact in the criminal revision filed before the high court that he has also been convicted in another criminal case. he would be guilty of playing fraud on the court as well as on the opposite party. a person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. a litigant who approaches the court is bound to produce all documents which are relevant to the litigation. if he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party. since the second respondent deliberately suppressed the crucial and important fact,the court disapproved strongly and particularly,the conduct of the second respondent and by reason of such conduct,the second respondent disentitled himself from getting any relief or assistance from this court. the court however directed the second respondent to pay a sum of rs.10,000 by way of cost to the appellant herein. the offender can only be released on probation of good conduct under this section when the court forms an opinion,having considered the circumstances of the case,the nature of the offence and the character of the offender,that in a particular case,the offender should be released on probation of good conduct. the second respondent is a previous convict as per the records placed before us. such a previous convict cannot be released in view of section 4 of the pob act. the word "shall" in sub-section (2) of section 4 is mandatory and the consideration of the report of the probationer officer is a condition precedent to the release of the accused as reported in the case of state v.naguesh g.shet govenkar and anr.,air (1970) goa 49 1969 indlaw goa 8 and a release without such a report would,therefore,be illegal. in the case of ram singh and ors.v.state of haryana,[1971] 3 scc 914 1970 indlaw sc 513, it was observed that sections 4 and 6 of the act indicate the procedure requiring the court to call for a report from the probation officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. these facts are of primary importance before the court can pass an order under the probation of offenders act. this plea cannot be entertained in this court. since the high court has disposed of the criminal revision without giving an opportunity of filing counter affidavit to the counsel for the mcd and that the respondent did not disclose the fact in the criminal revision filed before the high court that he has also been convicted in another criminal case, the judgment impugned in this appeal cannot be allowed to stand. the court, therefore had no hesitation in setting aside the order impugned and remit the matter to the high court for fresh disposal strictly in accordance with law. STATUTE section 4 of the probation of offenders act,1958- power of court to release certain offenders on probation of good conduct. section 4 of the pob act applies to all kinds of offenders whether under or above 21 years of age. this section 4 of the pob act is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. the only limitation imposed by section 6 of the pob act is that in the first instance an offender under twenty one years of age,will not be sentenced to imprisonment.

the appellant is a company incorporated under the companies act1956 with the object of manufacture and sale of cigarettes. members of general public are the shareholders and the shares of the company are traded in through various stock exchanges in the country. a petition was filed under article 226 of the constitution by respondent no 1 seeking for a writ of mandamus to treat the members of the respondent union who are employees working in the canteen of the appellants factory as employees of the appellant and for grant of monetary and other consequential benefits. the canteen is provided in the factory premises of the appellant pursuant to section 46 of the factories act1948 hereinafter referred to as the actwhich obliges a factory employing more than 250 workmen to provide such a canteen. on behalf of the respondents it is contended that the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established that though the management of the canteen had been entrusted to the contractors from time to time the personnel employed in the canteen were retained by all the contractors and they have been paid salaries through contractors that the workmen employed in the canteen have been provided with esi benefits under the code No. vst the appellant and benefits arising under the employees provident funds act are also provided similarly that the appellant has also provided a building along with furniture utensils cutlery gas electricity water supply and other facilities that the contractor is engaged only to prepare the food and serve it to the employees and that the quality of the food and the rates are controlled by the management of the appellant. on behalf of the appellant contention was raised that no writ would lie against the appellant inasmuch as the appellant is a company which is not an authority or a person against whom a writ would lie. it was submitted that they do not discharge any public duty and hence the writ can not be issued. on the merits of the matter the appellant disputed various questions of fact and urged that the decision of this court in parimal chandra raha vs life insurance corporation of india1995 supp 2 scc 611 1995 indlaw sc 183would not be applicable to the appellant in the facts and circumstances of the case. the learned single judge who decided the matter in the first instance held that a writ would lie against a company under a private management following the decision in t gattaiah vs commissioner of labour1981 ii llj 54 1981 indlaw ap 26in which it was held that establishment of a canteen and its maintenance is a statutory requirement under section 46 of the act a public duty is imposed on the company to establish and maintain the canteen inasmuch as members of the respondent union are working in the canteen they are entitled to seek a mandamus. he therefore held that when a public duty is called upon to be discharged by a private management a writ of mandamus would lie and could be issued under article 226 of the constitution. he thus rejected the contention. on the merits of the matter the learned single judge followed the decision in parimal chandra rahas case holding that when the duty had been enjoined on the appellant to provide and maintain a canteen facility under the factories act it becomes the obligation of the appellant to establish a canteen and that is what the appellant had done. therefore when that work is got done through somebody else by providing the necessary infrastructure and other facilities when the personnel did not change though the contractors changed from time to time he held that they become employees of the appellant. on that basis the learned single judge granted reliefs sought for by the respondents however imposing certain restrictions with regard to the age being medically fit on the date of the writ petition had put in a minimum of three years of continuous service and such service prior to the attainment of the minimum qualifying age under the company should be ignored. on appeal the division bench of the high court affirmed the view taken by the learned single judge. the division bench referred to their decision in rakesh gupta vs hyderabad stock exchange ltd hyderabad ors. air 1996 ap 430 1996 indlaw ap. 302that a writ in the nature of mandamus certiorari and prohibition are recognised as public law remedies and are not available to enforce private law rights. however noticing that the expression any person or authority used in article 226 of the constitution should not be confined only to statutory authorities and instrumentalities of state but would cover any other person or body performing public duty. the form of the body concerned is not very much relevant. what is relevant is the nature of the duty imposed on that body. the duty must be judged in the light of positive obligation owed by the person or authority to the affected party no matter by what means the duty is imposed. on that basis the division bench of the high court dismissed the writ appeal. hence this appeal. on behalf of the appellant contention put forth at the forefront is that a writ would not lie against the appellant inasmuch as the appellant is engaged in the manufacture and sale of cigarettes and as an incident thereto has provided a canteen to its workmen pursuant to an obligation under section 46 of the act. shri s ganesh learned counsel for the appellant pressed into service the decision of this court in anadi mukta sadguru shree muktajee vandas swami survarna jayanti mahotsav smarak trust ors vs v r rudani ors. 1989 2 scc 691 1989. indlaw sc 589to contend that mere running of a factory to manufacture and sell of cigarettes can never be considered to be a public duty much less an incident thereto such as providing a canteen to its workmen. on behalf of the respondent heavy reliance was placed on this decision and also the decision of the high court in t gattaiahs case to contend that in running a canteen under section 46 of the act the appellant was discharging a public duty and therefore a writ of mandamus would lie against it. n anadi muktas case the contention similar to the present case had been raised. writ petitioners were seeking for a writ of mandamus to put them back in the college and they were claiming only a terminal benefit or arrears of salary payable to them. in that background it was observed that if the rights are purely of a private character no mandamus could be issued and also if the management of the college were purely a private body with no public duty mandamus would not lie. in that case the respondent was managing the affiliated college to which public money is paid as government aid which played a major role in the control maintenance and working of educational institutions. the aided institutions it was noticed like government institutions discharge public function by way of imparting education to students. they were subject to the rules and regulations of the affiliating university and their activities were closely supervised by the university authorities. employment in such institutions therefore is not devoid of any public character inasmuch as the service conditions of the academic staff were controlled by the university particularly in regard to their pay scales and the protection by university decisions creating a legal right or duty relationship between the staff and the management. when there is existence of such relationship mandamus could not be refused to such an aggrieved party. it was further explained in that decision that the term authority used in article 226 of the constitution should receive a liberal meaning unlike the term in article 12which is only for the purpose of enforcement of fundamental rights under article 32 the words any person or authority used in article 226 are therefore not be confined only to statutory authorities or instrumentalities of the state but would cover any other person or body performing public duty. the duty must be judged in the light of positive obligation owed by the person or authority to the affected party no matter by what means the duty is imposed if a positive obligation exists mandamus can not be denied. in de smith woolf and jowells judicial review of administrative action5th edn. it is noticed that not all the activities of the private bodies are subject to private law e g the activities by private bodies may be governed by the standards of public law when its decisions are subject to duties conferred by statute or when by virtue of the function it is performing or possibly its dominant position in the market it is under an implied duty to act in the public interest. by way of illustration it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded at least in relation to some of its activities as subject to public law because of the nature of the function it is performing. this is because the prisoners for whose custody and care it is responsible are in the prison in consequence of an order of the court and the purpose and nature of their detention is a matter of public concern and interest. after detailed discussion the learned authors have summarized the position with the following propositions 1 the test of whether a body is performing a public function and is hence amenable to judicial review may not depend upon the source of its power or whether the body is ostensibly a public or a private body. 2 the principles of judicial review prima facie govern the activities of bodies performing public functions. however not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. in the following two situations judicial review will not normally be appropriate even though the body may be performing a public function a where some other branch of the law more appropriately governs the dispute between the parties. in such a case that branch of the law and its remedies should and normally will be applied and b where there is a contract between the litigants. in such a case the express or implied terms of the agreement should normally govern the matter. this reflects the normal approach of english law namely that the terms of a contract will normally govern the transaction or other relationship between the parties rather than the general law. thus where a special method of resolving disputes such as arbitration or resolution by private or domestic tribunals has been agreed by the parties expressly or by necessary implicationthat regime and not judicial review will normally govern the dispute. the high court has relied very strongly on the decision of a learned single judge in t gattaiahs case wherein it was stated that a writ may lie under article 226 of the constitution against a company incorporated under the companies act1956 as it is permissible to issue a writ against any person. prima facie therefore a private person or an incorporated company can not be taken out of the sweep and the contemplation of article 226 of the constitution. that decision does not take note of the fact as to the nature of the functions that a person or an incorporated company should be performing to attract judicial review under article 226 of the constitution. in anadi muktas case this court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty article 226 of the constitution can be invoked. in the present case the appellant is engaged in the manufacture and sale of cigarettes. manufacture and sale of cigarettes will not involve any public function. incidental to that activity there is an obligation under section 46 of the act to set up a canteen when the establishment has more than 250 workmen. that means it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare. in other words it is only a labour welfare device for the benefit of its work force unlike a provision where pollution control act makes it obligatory even on a private company not to discharge certain effluents. in such cases public duty is owed to the public in general and not specific to any person or group of persons. further the damage that would be caused in not observing them is immense. if merely what can be considered a part of the conditions of service of a workman is violated then we do not think there is any justification to hold that such activity will amount to public duty. thus we are of the view that the high court fell into error that appellant is amenable to writ jurisdiction. this court in indian petrochemicals corporation ltd anr vs. shramik sena ors. 19996 scc. 439 1999 indlaw sc 513referred to the decisions in parimal chandra rahas case reserve bank of india vs workmen1996. 3 scc 267and m m r khan vs union of india1990 supp. scc 191 1996 indlaw sc 618and held that the workmen of a statutory canteen as in the present case would be workmen of an establishment for the purposes of the act only and not for other purposes. thereafter this court further examined whether the material on record would show that the workmen are employees of the management for all purposes and adopted some of the tests as follows. the canteen has been there since the inception of the appellants factory. the workmen have been employed for long years and despite a change of contractors the workers have continued to be employed in the canteen. the premises furniture fixture fuel electricity utensils etc have been provided for by the appellant. the wages of the canteen workers have to be reimbursed by the appellant. the supervision and control on the canteen is exercised by the appellant through its authorised officer as can be seen from the various clauses of the contract between the appellant and the contractor. the contractor is nothing but an agent or a manager of the appellant who works completely under the supervision control and directions of the appellant. the workmen have the protection of continuous employment in the establishment. in the present case the findings recorded by the learned single judge on examination of the facts available is that there had been a canteen within the premises of the appellant up to the year 1982 and it is only from 1982 onwards the management of the canteen has been entrusted to a private contractor that even after change of the contractor the canteen workers have continued to be the same irrespective of the change in the contractors from time to time that wages were paid to the workmen in the canteen by the management through the contractor that the appellant has provided the accommodation furniture fuel electricity utensils etc. that the management exercises control over the standard in quality quantity and the rate of the food items supplied to the workmen for whose benefit the canteen is established. thus these circumstances clearly indicate that the appellant has a complete control over the activities in respect of the canteen and the contractor has absolutely no discretion either in regard to the menu quality and quantity of the food items much less the rate at which the same are supplied to the workmen. when the management of the appellant exercises such a complete control the canteen shall be deemed to be run by the management itself. the appellant in any manner can not controvert these facts. we do agree that the respondents have a strong case on merits. since we have held that the high court had no jurisdiction to entertain a petition under article 226 of the constitution we would have set aside the order made by the high court. however in the special features of the case although we do not agree with the high court on the first question raised we feel after clarifying the legal position that we should not disturb the decision given by the high court. the appeal therefore stands dismissed subject to what is stated in regard to writs to be issued by the high court in respect of persons or authorities exercising public duty or otherwise. no costs. civil appeal nos 653397 653497. in these appeals on a reference made on the question whether certain persons employed in the canteen should be treated as employees of the appellant and if so in what category they are to be fitted in and to what wages they are entitled to the industrial tribunal hyderabadhereinafter referred to as the tribunal inquired into the matter. the contesting respondents contended that the workmen in the canteen had been working right from its inception that is since 1967 that from 1976 onwards after expiry of the contract with the industrial catering services they had been directly working with the appellant without any contractor that they sought for regularization of their services by letter dated 28 february 1978 that the said letter was corrected and redrafted by the personnel manager to indicate the idea of floating an association society to run the canteen that this modified request contained in ex. w 49 was stated to be contradictory to the stand taken by the workmen all through. the tribunal concluded that there was no doubt that the personnel manager modified ex. w 50 and obtained ex. w 49 in the modified form. the tribunal held against them as there was no material to show that the management had discussed on each point and thereafter an agreement had been drafted. the tribunal recorded the findings that the canteen had been working for the benefit of the workmen within the premises provided by and with the equipment supplied by the appellant that the appellant supplies the provisions for the preparation of foodstuffs that the appellant issues token to the employees who on production of the same obtain foodstuffs from the canteen that the committee appointed by the appellant decides the menu and as per the directions and supervision of the catering officer the canteen functions that the quality and quantity of the foodstuffs is supervised by him who functions under the committee. the contributions like esi provident fund etc had also been categorically specified to be provided by the appellant and esi code for the permanent establishment and for the present workmen was the same that after the evidence was tendered by the workmen the appellant got the code changed and the appellant transferred the workmen from one place to another and that the amount to be surrendered by way of unpaid salaries had to be remitted back to the management. thus the tribunal held that these facts clearly indicated that the appellant exercised administrative financial and disciplinary control over the workmen in question. the tribunal held that no other material is required to hold them to be employees of the appellant. in those circumstances the tribunal passed an award that these workmen should be treated as employees of the appellant and they are entitled to payment of appropriate scales and designations in terms of ex. w12 and w14 from 1 april 1979 with all consequential and attendant benefits of arrears of pay etc together with counting of entire service for the purpose of terminal benefits. against this award a writ petition was filed before the high court. the high court dismissed the same stating that it is covered by another matter. it is unnecessary to examine the contention whether the matter is covered by a subsequent decision or not as the facts of the present case stand on its own. the reference had been made to the tribunal and adjudication had been made by the tribunal as to the status of the workmen the nature of employment control exercised by the appellant which leave no room for doubt that they are the employees of the appellant. a contention is also sought to be made that it is not possible to run a canteen in the refinery area. it is contended that under the petroleum rules framed under the petroleum act1934there are certain hazardous areas where there can not be a canteen as no fire furnace source of heat or light capable of igniting inflammable vapours shall be allowed except in the firing spaces or stills and boilers. however there is no material on record to show that the canteen is located in such an area where it would be hazardous to have a fire furnace source of heat or light to cook food. in the absence of such material we find no substance in this contention. it is brought to our notice that a fire had taken place on a tank on 14 september 1997 and that it was extinguished after 14 days which severely damaged all the building including the canteen and that food and beverages being provided to its employees by making an arrangement to obtain the same from outside the premises of the appellant. these facts are brought to our notice by an affidavit filed on 21 november 2000 but these factors do not come in the way of the award made by the tribunal as it is possible to locate the canteen in an appropriate place where there is no hazard of the kind envisaged under the petroleum rules. this contention is also rejected. in the circumstances aforesaid the contention vis vis the findings recorded by the tribunal we find absolutely no merit in these appeals and the same shall stand dismissed.

FACTS the appellant is a company incorporated under the companies act,1956 with the object of manufacture and sale of cigarettes. members of general public are the shareholders and the shares of the company are traded in through various stock exchanges in the country. a petition was filed under article 226 of the constitution by respondent no.1 seeking for a writ of mandamus to treat the members of the respondent-union who are employees working in the canteen of the appellants factory as employees of the appellant and for grant of monetary and other consequential benefits. the learned single judge granted reliefs sought for by the respondents,however,imposing certain restrictions with regard to the age,being medically fit,on the date of the writ petition,had put in a minimum of three years of continuous service and such service prior to the attainment of the minimum qualifying age under the company should be ignored . on appeal,the division bench of the high court affirmed the view taken by the learned single judge. ARGUMENT on behalf of the respondents,it is contended that the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established; that though the management of the canteen had been entrusted to the contractors from time to time,the personnel employed in the canteen were retained by all the contractors and they have been paid salaries through contractors; that the workmen employed in the canteen have been provided with esi benefits under the code no.vst,the appellant,and benefits arising under the employees provident funds act are also provided similarly; that the appellant has also provided a building along with furniture,utensils,cutlery,gas,electricity,water supply and other facilities; that the contractor is engaged only to prepare the food and serve it to the employees and that the quality of the food and the rates are controlled by the management of the appellant. on behalf of the appellant,contention was raised that no writ would lie against the appellant inasmuch as the appellant is a company,which is not an authority or a person against whom a writ would lie. it was submitted that they do not discharge any public duty and hence the writ cannot be issued. on the merits of the matter,the appellant disputed various questions of fact and urged that the decision of this court in parimal chandra raha vs. life insurance corporation of india,1995 supp.(2) scc 611 1995 indlaw sc 183,would not be applicable to the appellant in the facts and circumstances of the case. on behalf of the appellant contention put forth at the forefront is that a writ would not lie against the appellant inasmuch as the appellant is engaged in the manufacture and sale of cigarettes and as an incident thereto has provided a canteen to its workmen pursuant to an obligation under section 46 of the act. on behalf of the respondent,heavy reliance was placed on this decision and also the decision of the high court in t.gattaiahs case,to contend that in running a canteen under section 46 of the act,the appellant was discharging a public duty and,therefore,a writ of mandamus would lie against it. the contesting respondents contended that the workmen in the canteen had been working right from its inception,that is,since 1967; that from 1976 onwards,after expiry of the contract with the industrial catering services,they had been directly working with the appellant without any contractor; that they sought for regularization of their services by letter dated 28 february 1978; that the said letter was corrected and redrafted by the personnel manager to indicate the idea of floating an association/society to run the canteen; that this modified request contained in ex.w-49 was stated to be contradictory to the stand taken by the workmen all through. ISSUE in these appeals,on a reference made on the question whether certain persons employed in the canteen should be treated as employees of the appellant and,if so,in what category they are to be fitted in and to what wages they are entitled to,the industrial tribunal,hyderabad,[hereinafter referred to as the tribunal] inquired into the matter ANALYSIS in de smith,woolf and jowells judicial review of administrative action,5th edn.,after detailed discussion,the learned authors have summarized the position with the following propositions: (1) the test of whether a body is performing a public function,and is hence amenable to judicial review,may not depend upon the source of its power or whether the body is ostensibly a public or a private body. 2) the principles of judicial review prima facie govern the activities of bodies performing public functions. however,not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. in the following two situations judicial review will not normally be appropriate even though the body may be performing a public function: (a) where some other branch of the law more appropriately governs the dispute between the parties. in such a case,that branch of the law and its remedies should and normally will be applied; and (b) where there is a contract between the litigants. in such a case the express or implied terms of the agreement should normally govern the matter. thus,where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed by the parties (expressly or by necessary implication),that regime,and not judicial review,will normally govern the dispute. the high court has relied very strongly on the decision of a learned single judge in t.gattaiahs case wherein it was stated that a writ may lie under article 226 of the constitution against a company incorporated under the companies act,1956 as it is permissible to issue a writ against any person. in anadi muktas case this court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty article 226 of the constitution can be invoked. in the present case,the appellant is engaged in the manufacture and sale of cigarettes. manufacture and sale of cigarettes will not involve any public function. incidental to that activity there is an obligation under section 46 of the act to set up a canteen when the establishment has more than 250 workmen. that means,it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare. the findings recorded by the learned single judge on examination of the facts available is that there had been a canteen within the premises of the appellant up to the year 1982 and it is only from 1982 onwards the management of the canteen has been entrusted to a private contractor; that even after change of the contractor,the canteen workers have continued to be the same irrespective of the change in the contractors from time to time; that wages were paid to the workmen in the canteen by the management through the contractor; that the appellant has provided the accommodation,furniture,fuel,electricity,utensils,etc. that the management exercises control over the standard in quality,quantity and the rate of the food items supplied to the workmen for whose benefit the canteen is established. thus,these circumstances clearly indicate that the appellant has a complete control over the activities in respect of the canteen and the contractor has absolutely no discretion either in regard to the menu,quality and quantity of the food items much less the rate at which the same are supplied to the workmen. when the management of the appellant exercises such a complete control,the canteen shall be deemed to be run by the management itself. the appellant in any manner cannot controvert these facts. there is no material on record to show that the canteen is located in such an area where it would be hazardous to have a fire,furnace,source of heat or light to cook food. STATUTE the canteen is provided in the factory premises of the appellant pursuant to section 46 of the factories act,1948 [hereinafter referred to as the act],which obliges a factory employing more than 250 workmen to provide such a canteen.

FACTS the appellant is a company incorporated under the companies act,1956 with the object of manufacture and sale of cigarettes. members of general public are the shareholders and the shares of the company are traded in through various stock exchanges in the country. a petition was filed under article 226 of the constitution by respondent no.1 seeking for a writ of mandamus to treat the members of the respondent-union who are employees working in the canteen of the appellants factory as employees of the appellant and for grant of monetary and other consequential benefits. the learned single judge granted reliefs sought for by the respondents,however,imposing certain restrictions with regard to the age,being medically fit,on the date of the writ petition,had put in a minimum of three years of continuous service and such service prior to the attainment of the minimum qualifying age under the company should be ignored. on appeal,the division bench of the high court affirmed the view taken by the learned single judge. the duty must be judged in the light of positive obligation owed by the person or authority to the affected party,no matter by what means the duty is imposed. on that basis,the division bench of the high court dismissed the writ appeal. hence this appeal. ARGUMENT the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established; that though the management of the canteen had been entrusted to the contractors from time to time,the personnel employed in the canteen were retained by all the contractors and they have been paid salaries through contractors. no writ would lie against the appellant inasmuch as the appellant is a company,which is not an authority or a person against whom a writ would lie. a writ would not lie against the appellant inasmuch as the appellant is engaged in the manufacture and sale of cigarettes and as an incident thereto has provided a canteen to its workmen pursuant to an obligation under section 46 of the act. on behalf of the respondent,heavy reliance was placed on this decision and also the decision of the high court in t.gattaiahs case,to contend that in running a canteen under section 46 of the act,the appellant was discharging a public duty and,therefore,a writ of mandamus would lie against it. the workmen in the canteen had been working right from its inception,that is,since 1967; that from 1976 onwards,after expiry of the contract with the industrial catering services,they had been directly working with the appellant without any contractor; that they sought for regularization of their services by letter dated 28 february 1978; that the said letter was corrected and redrafted by the personnel manager to indicate the idea of floating an association/society to run the canteen; that this modified request contained in ex.w-49 was stated to be contradictory to the stand taken by the workmen all through. ISSUE whether certain persons employed in the canteen should be treated as employees of the appellant and,if so,in what category they are to be fitted in and to what wages they are entitled to,the industrial tribunal,hyderabad,[hereinafter referred to as the tribunal] inquired into the matter. ANALYSIS in de smith,woolf and jowells judicial review of administrative action,5th edn.,after detailed discussion,the learned authors have summarized the position with the following propositions: (1) the test of whether a body is performing a public function,and is hence amenable to judicial review,may not depend upon the source of its power or whether the body is ostensibly a public or a private body. 2) the principles of judicial review prima facie govern the activities of bodies performing public functions. however,not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. what is relevant is the nature of the duty imposed on that body. in the following two situations judicial review will not normally be appropriate even though the body may be performing a public function: (a) where some other branch of the law more appropriately governs the dispute between the parties. in such a case,that branch of the law and its remedies should and normally will be applied; and (b) where there is a contract between the litigants. in such a case the express or implied terms of the agreement should normally govern the matter. thus,where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed by the parties (expressly or by necessary implication),that regime,and not judicial review,will normally govern the dispute. the high court has relied very strongly on the decision of a learned single judge in t.gattaiahs case wherein it was stated that a writ may lie under article 226 of the constitution against a company incorporated under the companies act,1956 as it is permissible to issue a writ against any person. in parimal chandra rahas case the court held that when the duty had been enjoined on the appellant to provide and maintain a canteen facility under the factories act it becomes the obligation of the appellant to establish a canteen and that is what the appellant had done.therefore,when that work is got done through somebody else by providing the necessary infrastructure and other facilities,when the personnel did not change though the contractors changed from time to time,he held that they become employees of the appellant in anadi muktas case this court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty article 226 of the constitution can be invoked. in the present case,the appellant is engaged in the manufacture and sale of cigarettes. manufacture and sale of cigarettes will not involve any public function. incidental to that activity there is an obligation under section 46 of the act to set up a canteen when the establishment has more than 250 workmen. that means,it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare. the findings recorded by the learned single judge on examination of the facts available is that there had been a canteen within the premises of the appellant up to the year 1982 and it is only from 1982 onwards the management of the canteen has been entrusted to a private contractor; that even after change of the contractor,the canteen workers have continued to be the same irrespective of the change in the contractors from time to time; that wages were paid to the workmen in the canteen by the management through the contractor; that the appellant has provided the accommodation,furniture,fuel,electricity,utensils,etc. that the management exercises control over the standard in quality,quantity and the rate of the food items supplied to the workmen for whose benefit the canteen is established. thus,these circumstances clearly indicate that the appellant has a complete control over the activities in respect of the canteen and the contractor has absolutely no discretion either in regard to the menu,quality and quantity of the food items much less the rate at which the same are supplied to the workmen. when the management of the appellant exercises such a complete control,the canteen shall be deemed to be run by the management itself. the appellant in any manner cannot controvert these facts. there is no material on record to show that the canteen is located in such an area where it would be hazardous to have a fire,furnace,source of heat or light to cook food. STATUTE the canteen is provided in the factory premises of the appellant pursuant to section 46 of the factories act,1948,which obliges a factory employing more than 250 workmen to provide such a canteen.

this appeal is directed against the final judgment and order dated 03 10 2007 passed by the high court of judicature andhra pradesh at hyderabad in criminal appeal no 436 of 2001 whereby the high court dismissed the appeal filed by the appellant herein and confirmed the judgment dated 19 03 2001 passed by the special judge c b i cases visakhapatnam in c c no 2 of 1998. brief facts a the appellant accused was working as a head clerk in the traffic cadre section in the office of the senior divisional personnel officer south central railway vijayawada during the period from april1992 to november1997 the nature of duties of the appellant accused included dealing with and processing of the matters like promotions transfers seniority list roster list pay fixation on promotions retirements resignations etc of the personnel. one k rama rao the complainant who was examined as pw 1was posted as yard points man grade a under station superintendent south central railway tanuku from december1995 to june1997 in june1997due to excess staff at tanuku. he was instructed to report at head quarters vijayawada and accordingly when he reported there he was asked to go back to tanuku. thereafter he went back to tanuku from where he was subsequently transferred to rajahmundry. thereafter pw 1 made a representation to his senior officer requesting him for posting at vijayawada cheerala vetapalam or tenali. later pw 1 was transferred to vijayawada. as the appellant accused was dealing with the transfers the complainant pw 1 met him on 05 11 1997 at his office to pursue about the issuance of the said transfer order. the appellant accused asked him to come on 10 11 1997 when he met him on 10 11 1997the appellant asked him to come on the next day as he was busy in pay fixation work. on 11 11 1997again he went to the office of the appellant but he could not find him on his seat. again a day after i e on. 13 11 1997when he met the appellant accused he informed him that his request for transfer has been processed and the order is ready and the same has been placed before the a p o for signature and asked him to come on the next day i e on 14 11 1997and demanded rs 200 for releasing the said office order. on the same daypw 1 reported the matter in writing to the inspector of police central bureau of investigation in short the cbivijayawada. on 14 11 1997a trap was laid by the cbi officials along with panchas and when the accused demanded and accepted a sum of rs 200 as illegal gratification he was caught red handed along with the money which was recovered from the right hand side pocket of his pant. on 15 11 1997at 7 30 a m. an fir was registered by the inspector cbi visakhapatnam branch in crime No. rc 20a97 vsp after recording the statements of the witnesses inspector of police cbi visakhapatnam filed charge sheet being no 298 ytr dated 29 04 1998 against the appellant accused for an offence punishable under sections 7131dii read with s 132 of the prevention of corruption act1988 hereinafter referred to as the act in the court of special judge for cbi cases at visakhapatnam. the special judge cbi by order dated 19 03 2001convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of rs 500 and in default to suffer simple imprisonment for one month for the offence punishable u s 7 of the act and one year rigorous imprisonment with a fine of rs 500 and in default to suffer simple imprisonment for one month for the offence punishable u ss 131d ii. read with s 132 of the act. g against the said order the appellant accused filed criminal appeal no 436 of 2001 before the high court of andhra pradesh. the high court by impugned judgment dated 03 10 2007 dismissed the appeal filed by the appellant accused and confirmed the conviction passed by the trial court. hence the appellant accused has preferred this appeal by way of special leave petition before this court. heard mr atm rangaramanujam learned senior counsel for the appellant and mr harish chandra learned senior counsel for the respondent. notice only on quantum of sentence hearing on all aspects. permissibility. on 28 01 2008this court consisting of three honourable judges issued notice in this matter confining to the quantum of sentence only. in pursuance of the same we permitted mr rangaramanujam learned senior counsel for the appellant to address his arguments confining to quantum of sentence imposed on the appellant accused. as stated in the narration of facts the appellant was convicted u s 7 of the act for which he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of rs 500 in default simple imprisonment for one month. he was also convicted for the offence under s 131dii read with s 132 of the act and sentenced to undergo rigorous imprisonment for one year and fine of rs 500 in default simple imprisonment for one month. the trial court ordered that both the sentences of imprisonment shall run concurrently. the said conviction and sentence was affirmed by the high court. if we confine ourselves to the limited extent of notice dated 28 01 2008we have to hear both sides only on the quantum of sentence. however mr rangaramanujam learned senior counsel for the appellant by drawing our attention to the recent judgment of this court in yomeshbhai pranshankar bhatt vs state of gujarat2011 6 scc 312 2011 indlaw sc 370submitted that in spite of limited notice this court while exercising jurisdiction u art 142 of the constitution in order to do complete justice while hearing the matter finally can go into the merits of the orders passed by the trial court and the high court. in the reported case the appeal was against the concurrent finding of both the courts convicting the appellant u s 302 ipc and sentencing him to suffer imprisonment for life. at the slp stage this court by order dated 27 07 2009issued notice confined only to the question as to whether the petitioner was guilty of commission of an offence under any of the parts of s 304 indian penal code1860 in short ipc and not u s 302 ipc similar request was made before the bench that the appellant was entitled to urge all the questions including his right to urge that he should have been acquitted in the facts and circumstances of the case. this court referred to the supreme court rules1966 which have been framed u art 145 of the constitution and also considered scope of its power u art 142 as well as order 47. rule 6 of the code of civil procedure1908. in short the code while deciding the said question the bench has also considered the scope of s 100 of the code for entertaining the second appeal. it further shows that the court considered the plea of the appellant therein for acquittal despite the fact that the notice was limited in terms of the order dated 27 07 2009 it is relevant to point out that the bench in para 18clarified the position and reopened the case in its entirety even though notice was issued confining to a particular aspect. after permitting the appellant therein to argue the case for acquittal on merits it observed we however make it clear that this can not be a universal practice in all cases. the question whether the court will enlarge the scope of its inquiry at the time of final hearing depends on the facts and circumstances of the case. since in the facts of this case we find that the appellant should be heard on all points we have come to the aforesaid conclusion. emphasis supplied. it is clear that the bench itself has clarified that they are not laying down the law that in spite of issuing notice confining to a particular aspect in the case on hand quantum of sentence the parties are entitled to urge all points and re open the case as if they are free to do the same without any restriction. as a matter of fact the last sentence in para 18 makes it clear that in the facts and circumstances of that case they permitted the appellants to urge all points on merits. in the case on hand it is to be noted that on appreciation of oral and documentary evidence led in by the prosecution and the defence and on appreciation of entire materials the court of first instance i e the trial court convicted the appellant and sentenced him as mentioned above. the high court as an appellate court once again analysed all the material discussed the oral and documentary evidence and finding that the prosecution had proved the guilt of the accused beyond reasonable doubt concurred with the conclusion arrived at by the trial court and dismissed the appeal of the appellant. inasmuch as both the courts have thoroughly discussed the oral and documentary evidence with reference to the charges leveled against the appellant and in view of the limited order dated 28 01 2008 by this court issuing notice confining to quantum of sentence only and even applying the analogy enunciated in yomeshbhai 2011 indlaw sc 370 suprawe feel that it is not a case of such nature that the appellant should be heard on all points consequently we reject the request of the learned senior counsel appearing for the appellant. quantum of sentence. whether requires any reduction. mr rangaramanujam learned senior counsel for the appellant submitted that inasmuch as the alleged incident took place on 14 11 1997 and 14 years have elapsed since then the amount of rs 200 said to have been received by the appellant is trivial in nature and also of the fact that due to the said conviction and sentence he lost his job leniency may be shown and sentence be reduced to the period already undergone. he fairly admitted that out of the maximum period of one year the appellant had served only 52 days in prison. with this factual position let us consider whether the request of the learned senior counsel for the appellant is to be accepted and sentence be reduced to the period already undergone. it is not in dispute that the provisions of the prevention of corruption act1988 alone are applicable since the incident occurred on 14 11 1997 i e subsequent to the act. s 7 of the act relates to public servant taking gratification other than legal remuneration in respect of an official act. if the said offence charge is proved the court has no other option but to impose sentence of imprisonment which shall be not less than six months but which may extend to five years and also liable to fine. the said section reads as under public servant taking gratification other than legal remuneration in respect of an official act whoever being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavor to any person or for rendering or attempting to render any service or disservice to any person with the central government or any state government or parliament or the legislature of any state or with any local authority corporation or government company referred to in cl c of section 2or with any public servant whether named or otherwise shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine emphasis supplied. s 13 deals with criminal misconduct by a public servant. as per sub s 2 if any public servant commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. for clarity we reproduce the said section hereunder criminal misconduct by a public servant 1. a public servant is said to commit the offence of criminal misconduct a if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7 or b if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to be or to be likely to he concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interests in or related to the person so concerned or c 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 or d if he i by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or ii by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage or iii. while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest or e if he or any person on his behalf is in possession or has at any time during the period of his office been in possession for which the public servant can not satisfactorily account of pecuniary resources or property disproportionate to his known sources of income. explanation. for the purposes of this section known sources of income means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law rules or orders for the time being applicable to public servant. any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. it is useful to refer that in the prevention of corruption act1947 the same criminal misconduct which is available in s 13 of the 1988 act had been dealt with in s 5 of the 1947 act. s 52 of the 1947 act mandates that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. however proviso to sub s 2 of s 5 gives power to the court that for any special reasons to be recorded in writing impose a sentence of imprisonment of less than one year. such relaxation in the form of a proviso has been done away with in the 1988 act. to put it clear in the 1988 act if an offence u s 7 is proved the same is punishable with imprisonment which shall be not less than six months and in the case of section 13it shall not be less than one year. no other interpretation is permissible. other circumstances pleaded for reduction of sentence. in order to substantiate the claim with the regard to the above learned senior counsel for the appellant has relied on the decision of this court in bechaarbhai s prajapati vs state of gujarat2008 11 scc 163 2008 indlaw sc 297 and based on the same requested this court to modify the sentence to the extent of period already undergone. we have gone through the facts in that case. it is true that even in the cited decision the appellant accused demanded only rs 250 and it was paid and accepted. finally the special judge framed charges for offence punishable under sections 712131d read with s 132 of the act. the appellant therein was convicted for offence u s 72 of the act and appeal before the high court was also dismissed. thereafter the same was challenged before this court. this court after holding that the conclusion of the trial court and high court does not suffer from any infirmity considered the alternative submission which related to harshness of sentence. in that case taking note of the fact that the occurrence took place nearly seven years back and also of the fact that the appellant had suffered custody for more than six months considering all these aspects while maintaining the conviction this court reduced the sentence to the period already undergone. since the appellant therein was convicted only u s 7 and s 161 cr. pc the minimum sentence being six months and of the fact that he had suffered custody for more than six months the course adopted by this court is perfectly in order and the same can not be applied to the case on hand wherein the appellant had undergone only 52 days when the minimum sentence was six months u s 7 and one year u s 13. learned senior counsel for the appellant further submitted that inasmuch as the incident had occurred on 14 11 1997 and the trial court has convicted him on 19 03 2001 which was affirmed by the high court on 03 10 2007at this juncture i e. after a gap of 14 years there is no need to retain the same sentence and the court is not justified in directing the appellant to serve the remaining period after such a long time. there is no dispute as regards the date of occurrence and the date of conviction passed by the trial court and affirmed by the high court. inasmuch as the conviction on both counts have been confirmed by this court and we are confined to sentence part alone and in view of the minimum sentence prescribed u ss 7 and 13 of the act we are of the view that though long delay may be a ground for reduction of sentence in other cases the same may not be applicable to the case on hand when the statute prescribes minimum sentence. accordingly we reject the said contention. it was further contended that the amount alleged to have been received by the appellant accused is only rs 200 and he also lost his job after conviction by the trial court. though these grounds may be attractive in respect of other offences where minimum sentence is not prescribed in view of our reasonings in the earlier paras the same can not be applied to the case on hand. about the request based on delay that the appellant has lost his job undergone the ordeal all along etc a lenient view be taken in this case it is useful to refer decision of this court in state of m p vs. shambhu dayal. nagar2006 8 scc 693 2006. indlaw sc 716 wherein it was held that it is difficult to accept the prayer of the respondent that a lenient view be taken in this case. the corruption by public servants has become a gigantic problem. it has spread everywhere. no facet of public activity has been left unaffected by the stink of corruption. it has deep and pervasive impact on the functioning of the entire country. large scale corruption retards the nation building activities and everyone has to suffer on that count. as has been aptly observed in swatantar singh v state of haryana1997 4 scc 14 1997 indlaw sc 1061corruption is corroding like cancerous lymph nodes the vital veins of the body politics social fabric of efficiency in the public service and demoralising the honest officers. the efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently truthfully honestly and devotes himself assiduously to the performance of the duties of his post. the reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke. art 142 and its applicability. by drawing our attention to art 142 of the constitution of india learned senior counsel for the appellant vehemently submitted that in order to do complete justice this court has ample power to reduce the sentence even to the extent of period already undergone or any other order which would be beneficial to the parties approaching this court. similar claim based on art 142 has been negatived in several decisions by this court we need to refer only the latest decision of this court in manish goel vs rohini goel2010 4 scc 393 2010 indlaw sc 301 the facts in that case are that the parties by persuasion of the family members and friends entered into a compromise and prepared a memorandum of understanding dated 13 11 2009in the proceedings pending before the mediation centre delhi by which they agreed on terms and conditions incorporated therein to settle all their disputes and also for dissolution of their marriage. the parties filed an application under section 13 b1 of the hindu marriage act1955 before the family court delhi seeking divorce by mutual consent. the said hma no 456 of 2009 came before the court and it recorded the statement of parties on 16 11 2009 the parties moved another hma no 457 of 2009 to waive the statutory period of six months in filing the second petition. however the court rejected the said application vide order dated 01 12 2009 observing that the court was not competent to waive the required statutory period of six months under the act and such a waiver was permissible only under the directions of the supreme court as held by this court in anil kumar jain vs maya jain2009. 10 scc 415 2009 indlaw sc 1494 hence the parties have approached this court for appropriate relief. speaking for the bench one of us dr. justice b s chauhan referred to more than fifty decisions including the constitution bench judgments. the relevant paras which are useful may be quoted we are fully alive of the fact that this court has been exercising the power u art 142 of the constitution for dissolution of marriage where the court finds that marriage is totally unworkable emotionally dead beyond salvage and has broken down irretrievably even if the facts of the case do not provide a ground in law on which the divorce could be granted. decree of divorce has been granted to put quietus to all litigations between the parties and to save them from further agony as it is evident from the judgments in romesh chander v savitri. 1995 2 scc 7 1995 indlaw sc 329kanchan devi v promod kumar mittal 1996 8 scc 90 1996 indlaw sc 2663anita sabharwal v anil sabharwal 1997 11 scc 490 1996 indlaw sc 4162ashok hurra v rupa bipin zaveri 1997 4 scc 226 1997 indlaw sc 2568kiran v sharad dutt 2000 10 scc 243 1999 indlaw sc 2077swati verma v rajan verma 2004 1 scc 123 2003 indlaw sc 967harpit singh anand. v state of w b 2004. 10 scc 505 2003 indlaw sc 810jimmy sudarshan purohit v sudarshan sharad purohit 2005 13 scc 410 2004 indlaw sc 2040durga prasanna tripathy v arundhati tripathy 2005 7 scc 353 2005 indlaw sc 486naveen kohli v neelu kohli 2006 4 scc 558 2006 indlaw sc 598sanghamitra. ghosh v kajal kumar ghosh 2007 2 scc 220 2006 indlaw sc 775rishikesh sharma v saroj sharma 2007 2 scc 263 2006 indlaw sc 994samar ghosh v jaya ghosh 2007 4 scc 511 2007 indlaw sc 1000 and satish sitole. ganga 2008. 7 scc 734 2008 indlaw sc 1077 however these are the cases where this court came to rescue the parties on the ground for divorce not provided for by the legislature in the statute. in anjana kishore v puneet kishore 2002 10 scc 194 2001 indlaw sc 21204this court while allowing a transfer petition directed the court concerned to decide the case of divorce by mutual consent ignoring the statutory requirement of moving the motion after expiry of the period of six months under section 13 b2 of the act. in anil kumar jain this court held that an order of waiving the statutory requirements can be passed only by this court in exercise of its powers u art 142 of the constitution. the said power is not vested with any other court. however we have also noticed various judgments of this court taking a contrary view to the effect that in case the legal ground for grant of divorce is missing exercising such power tantamounts to legislation and thus transgression of the powers of the legislature which is not permissible in law vide chetan dass v kamla devi 2001 4 scc 250 2001 indlaw sc 20206 and vishnu dutt sharma. manju sharma 2009 6 scc 379 2009 indlaw sc 330. generally no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. the courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law vide state of punjab v renuka singla 1996 8 scc 90 1996 indlaw sc 2663state of u p v. harish chandra 1996 9 scc 309 1996 indlaw sc 157union of india v kirloskar pneumatic co ltd 1996 4 scc 453 1996 indlaw sc 131 university of allahabad v dr anand prakash mishra 1997 10 scc 264 1996 indlaw sc 2036 and karnataka srtc v ashrafulla khan 2002 2 scc 560 2002 indlaw sc 21. a constitution bench of this court in prem chand garg v excise commr. air 1963. sc 996 1962 indlaw sc 473 held as under. an order which this court can make in order to do complete justice between the parties must not only be consistent with the fundamental rights guaranteed by the constitution but it can not even be inconsistent with the substantive provisions of the relevant statutory laws. emphasis supplied. the constitution benches of this court in supreme court bar assn v. union of india 1998 4 scc 409 1998 indlaw sc 688 and e s p rajaram v union of india 2001 2 scc 186 2001 indlaw sc 20411 held that u art 142 of the constitution this court can not altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. it is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure. similar view has been reiterated in a r antulay v r s nayak 1988 2 scc 602 1988 indlaw sc 467bonkya v state of maharashtra 1995 6 scc 447 1995 indlaw sc 1282common cause v union of india 1999 6 scc 667 1999 indlaw sc 503m s ahlawat v state of haryana 2000 1 scc 278 1999 indlaw sc 794m c mehta v kamal nath 2000 6 scc 213 2000 indlaw sc 529state of punjab v rajesh syal 2002 8 scc 158 2002 indlaw sc 1146govt of w b v. tarun k roy 2004 1 scc 347 2003 indlaw sc 1039textile labour assn v. official liquidator 2004 9 scc 741 2004 indlaw sc 277state of karnataka. ameerbi 2007 11 scc 681 2006. indlaw sc 999union of india v shardindu 2007 6 scc 276 2007 indlaw sc 537 and bharat sewa sansthan v u p electronics corpn. ltd 2007 7 scc 737 2007 indlaw sc 1580. in teri oat estates p ltd v. ut chandigarh 2004 2 scc 130 2003 indlaw sc 1504. this court held as under sympathy or sentiment by itself can not be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. despite an extraordinary constitutional jurisdiction contained in art 142 of the constitution of india this court ordinarily would not pass an order which would be in contravention of a statutory provision. in laxmidas morarji v behrose darab madan 2009 10 scc 425 2009 indlaw sc 1154while dealing with the provisions of art 142 of the constitution this court has held as under. the power u art 142 of the constitution is a constitutional power and hence not restricted by statutory enactments. though the supreme court would not pass any order u art 142 of the constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject at the same time these constitutional powers can not in any way be controlled by any statutory provisions. however it is to be made clear that this power can not be used to supplant the law applicable to the case. this means that acting under article 142the supreme court can not pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. the power is to be used sparingly in cases which can not be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law can not bring about complete justice between the parties. emphasis added. after elaborately discussing almost all the case laws on this subject about jurisdiction of this court under article 142summarised the same in the following words therefore the law in this regard can be summarised to the effect that in exercise of the power u art 142 of the constitution this court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. after saying so the court rejected the request of the parties to waive the statutory period of six months under the act. in mota ram vs state of haryana2009 12 scc 727 2009 indlaw sc 682this court while reiterating the above principles has concluded that art 142 can not be exercised to negate the statutory provisions. in academy of nutrition improvement and others vs union of india jt 2011 8 sc 16 2011 indlaw sc 515the following conclusion about the applicability of art 142 is relevant. the question is having held that rule 44i to be invalid whether we can permit the continuation of the ban on sale of non iodised salt for human consumption for any period. art 142 of the constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice if exercise of such jurisdiction is not be contrary to any express provision of law. in supreme court bar association v union of india 1998 4 scc 409. 1998 indlaw sc 688this court observed the supreme court in exercise of its jurisdiction u art 142 has the power to make such order as is necessary for doing complete justice between the parties in any cause or matter pending before it. the very nature of the power must lead the court to set limits for itself within which to exercise those powers and ordinarily it can not disregard a statutory provision governing a subject except perhaps to balance the equities between the conflicting claims of the litigating parties by ironing out the creases in a cause or matter before it. indeed this court is not a court of restricted jurisdiction of only dispute settling. it is well recognised and established that this court has always been a law maker and its role travels beyond merely dispute settling. it is a problem solver in the nebulous areas see. k veeraswami v union of india 1991 3 scc 655 1991 indlaw sc. 711but the substantive statutory provisions dealing with the subject matter of a given case cannot be altogether ignored by this court while making an order u art 142 indeed these constitutional powers can not in any way be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. in kalyan chandra sarkar v rajesh ranjan 2005 3. scc 284 2005 indlaw sc 93this court after reiterating that this court in exercise of its jurisdiction u art 142 of the constitution would not pass any order which would amount to supplanting substantive law applicable to the case or ignoring express statutory provisions dealing with the subject observed as follows. it may therefore be understood that the plenary powers of this court u art 142 of the constitution are inherent in the court and are complementary to those powers which are specifically conferred on the court by various statutes though are not limited by those statutes these. powers also exist independent of the statutes with a view to do complete justice between the parties and are in the nature of supplementary powers. and may be put on a different and perhaps even wider footing than ordinary inherent powers of a court to prevent injustice. the advantage that is derived from a constitutional provision couched in such a wide compass is that it prevents clogging or obstruction of the stream of justice. see supreme court bar association 1998 indlaw sc 688 supra. though the jurisdiction of this court u art 142 of the constitution of india is not in dispute we make it clear that exercise of such power would however depend on the facts and circumstances of each case. the high court in exercise of its jurisdiction u s 482 of the criminal procedure code and this court. u art 142 of the constitution would not ordinarily direct quashing of a case involving crime against the society particularly. when both the trial court as also the high court have found that the charge leveled against the appellant under the act has been made out and proved by the prosecution by placing acceptable evidence. finally learned senior counsel for the appellant has cited certain orders of this court wherein this court has reduced the period of sentence already undergone while upholding the conviction. we have perused those orders. the orders do not disclose any factual details and the relevant provisions under which the accused was charged convicted and minimum sentence if any as available in the act as well as the period already undergone. in the absence of such details we are unable to rely on those orders. from the analysis of the above decisions and the concerned provisions with which we are concerned the following principles emerge a when the court issues notice confining to particular aspect sentence arguments will be heard only to that extent unless some extraordinary circumstance material is shown to the court for arguing the matter on all aspects. long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence particularly when the statute prescribes minimum sentence. in other cases where no such minimum sentence is prescribed it is open to the court to consider the delay and its effect and the ultimate decision. in a case of corruption by public servant quantum of amount is immaterial. ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution. merely because the delinquent lost his job due to conviction under the act may not be a mitigating circumstance for reduction of sentence particularly when the statute prescribes minimum sentence. though art 142 of the constitution gives wider power to this court waiver of certain period as prescribed in the statute imposing lesser sentence than the minimum prescribed is not permissible. an order which this court can make in order to do complete justice between the parties must not only be consistent with the fundamental rights guaranteed by the constitution but also it can not even be inconsistent with the substantive provisions of the relevant statute. in other words this court can not altogether ignore the substantive provisions of a statute. g in exercise of the power u art 142 of the constitution this court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. h the power u art 142 of the constitution is a constitutional power and not restricted by statutory enactments. however this court would not pass any order u art 142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. in other words acting under article 142this court can not pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. i the powers u art 142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. in the light of the above discussion we are unable to accept any of the contentions raised by the learned senior counsel for the appellant on the other hand we are in entire agreement with the conclusion arrived at by the trial judge as affirmed by the high court. consequently the appeal fails and the same is dismissed. since the appellant is on bail the bail bonds executed by him stand cancelled. the trial judge is directed to secure his presence for serving the remaining period of sentence. appeal dismissed.

FACTS the appellant-accused was working as a head clerk in the traffic cadre section in the office of the senior divisional personnel officer,south central railway,vijayawada during the period from april,1992 to november,1997. the nature of duties of the appellant-accused included dealing with and processing of the matters like promotions,transfers,seniority list,roster list,pay fixation on promotions,retirements,resignations etc.of the personnel. one k.rama rao-the complainant,who was examined as pw-1,was posted as yard points man,grade 'a' under station superintendent,south central railway,tanuku from december,1995 to june,1997. in june,1997,due to excess staff at tanuku,he was instructed to report at head quarters,vijayawada and accordingly,when he reported there,he was asked to go back to tanuku. thereafter,he went back to tanuku from where he was subsequently transferred to rajahmundry. thereafter,pw-1 made a representation to his senior officer requesting him for posting at vijayawada,cheerala,vetapalam or tenali.later,pw-1 was transferred to vijayawada. as the appellant-accused was dealing with the transfers,the complainant (pw-1) met him on 05.11.1997 at his office to pursue about the issuance of the said transfer order. the appellant-accused asked him to come on 10.11.1997. when he met him on aforesaid date, the appellant asked him to come on the next day as he was busy in pay-fixation work. on 11.11.1997,again he went to the office of the appellant but he could not find him on his seat. again a day after i.e.on 13.11.1997,when he met the appellant-accused,he informed him that his request for transfer has been processed and the order is ready and the same has been placed before the a.p.o.for signature and asked him to come on the next day,i.e.,on 14.11.1997,and demanded rs.200/-for releasing the said office order. he reported the matter in writing to the inspector of police,central bureau of investigation (in short 'the cbi),vijayawada. on 14.11.1997,a trap was laid by the cbi officials along with panchas and when the accused demanded and accepted a sum of rs.200/-as illegal gratification,he was caught red handed along with the money which was recovered from the right hand side pocket of his pant. an fir was registered by the inspector,cbi,visakhapatnam branch. after recording the statements of the witnesses,inspector of police,cbi,visakhapatnam filed charge sheet against the appellant-accused for an offence punishable under sections 7,13(1)(d)(ii) read with s.13(2) of the prevention of corruption act,1988 in the court of special judge for cbi cases at visakhapatnam. the special judge,cbi, convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of rs.500/-and,in default,to suffer simple imprisonment for one month for the offence punishable u/s.7 of the act and one year rigorous imprisonment with a fine of rs.500/-and,in default,to suffer simple imprisonment for one month for the offence punishable u/ss.13(1)(d) (ii) read with s.13(2) of the act. against the said order,the appellant-accused filed criminal appeal before the high court of andhra pradesh. the high court,by impugned judgment dated 03.10.2007 dismissed the appeal filed by the appellant-accused and confirmed the conviction passed by the trial court. hence,the appellant-accused has preferred this appeal by way of special leave petition before this court. ARGUMENT inasmuch as the alleged incident took place on 14.11.1997 and 14 years have elapsed since then,the amount of rs.200/-said to have been received by the appellant is trivial in nature and also of the fact that due to the said conviction and sentence he lost his job,leniency may be shown and sentence be reduced to the period already undergone. he fairly admitted that out of the maximum period of one year,the appellant had served only 52 days in prison. with this factual position,let us consider whether the request of the learned senior counsel for the appellant is to be accepted and sentence be reduced to the period already undergone. inasmuch as the incident had occurred on 14.11.1997 and the trial court has convicted him on 19.03.2001 which was affirmed by the high court on 03.10.2007,at this juncture,i.e.,after a gap of 14 years,there is no need to retain the same sentence and the court is not justified in directing the appellant to serve the remaining period after such a long time. by drawing our attention to art.142 of the constitution of india,learned senior counsel for the appellant vehemently submitted that in order to do complete justice,this court has ample power to reduce the sentence even to the extent of period already undergone or any other order which would be beneficial to the parties approaching this court. ISSUE notice only on quantum of sentence-hearing on all aspects-permissibility. quantum of sentence-whether requires any reduction. ANALYSIS there is no dispute as regards the date of occurrence and the date of conviction passed by the trial court and affirmed by the high court. inasmuch as the conviction on both counts have been confirmed by this court and we are confined to sentence part alone and in view of the minimum sentence prescribed u/ss.7 and 13 of the act,we are of the view that though long delay may be a ground for reduction of sentence in other cases,the same may not be applicable to the case on hand when the statute prescribes minimum sentence. about the request based on delay that the appellant has lost his job,undergone the ordeal all along etc. a lenient view be taken in this case,it is useful to refer decision of this court in state of m.p.vs.shambhu dayal nagar,(2006) 8 scc 693 2006 indlaw sc 716 wherein it was held that it is difficult to accept the prayer of the respondent that a lenient view be taken in this case. the corruption by public servants has become a gigantic problem. it has spread everywhere. no facet of public activity has been left unaffected by the stink of corruption. it has deep and pervasive impact on the functioning of the entire country. large-scale corruption retards the nation-building activities and everyone has to suffer on that count. similar claim based on art.142 has been negatived in several decisions by this court,we need to refer only the latest decision of this court in manish goel vs.rohini goel,(2010) 4 scc 393 2010 indlaw sc 301. the facts in that case are that the parties by persuasion of the family members and friends,entered into a compromise and prepared a memorandum of understanding dated 13.11.2009,in the proceedings pending before the mediation centre,delhi,by which they agreed on terms and conditions incorporated therein,to settle all their disputes and also for dissolution of their marriage. the parties filed an application under section 13-b(1) of the hindu marriage act,1955 before the family court,delhi seeking divorce by mutual consent. the constitution benches of this court in supreme court bar assn.v.union of india (1998) 4 scc 409 1998 indlaw sc 688 and e.s.p.rajaram v.union of india (2001) 2 scc 186 2001 indlaw sc 20411 held that u/art.142 of the constitution,this court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. it is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure. in mota ram vs.state of haryana,(2009) 12 scc 727 2009 indlaw sc 682,this court,while reiterating the above principles has concluded that art.142 cannot be exercised to negate the statutory provisions. in academy of nutrition improvement and others vs.union of india,jt 2011 (8) sc 16 2011 indlaw sc 515,the following conclusion about the applicability of art.142 is relevant: the question is having held that rule 44i to be invalid,whether we can permit the continuation of the ban on sale of non-iodised salt for human consumption for any period.art.142 of the constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice,if exercise of such jurisdiction is not be contrary to any express provision of law. though the jurisdiction of this court,u/art.142 of the constitution of india is not in dispute,we make it clear that exercise of such power would,however,depend on the facts and circumstances of each case. the high court,in exercise of its jurisdiction,u/s.482 of the criminal procedure code and this court,u/art.142 of the constitution,would not ordinarily direct quashing of a case involving crime against the society particularly,when both the trial court as also the high court have found that the charge leveled against the appellant under the act has been made out and proved by the prosecution by placing acceptable evidence. the orders do not disclose any factual details and the relevant provisions under which the accused was charged/convicted and minimum sentence,if any,as available in the act as well as the period already undergone. from the analysis of the above decisions and the concerned provisions with which is concerned,the following principles emerge: a) when the court issues notice confining to particular aspect/sentence,arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the court for arguing the matter on all aspects. b) long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence,particularly,when the statute prescribes minimum sentence.in other cases where no such minimum sentence is prescribed,it is open to the court to consider the delay and its effect and the ultimate decision. c) in a case of corruption by public servant,quantum of amount is immaterial.ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution. d) merely because the delinquent lost his job due to conviction under the act may not be a mitigating circumstance for reduction of sentence,particularly,when the statute prescribes minimum sentence. e) though art.142 of the constitution gives wider power to this court,waiver of certain period as prescribed in the statute imposing lesser sentence than the minimum prescribed is not permissible. f) an order,which this court can make in order to do complete justice between the parties,must not only be consistent with the fundamental rights guaranteed by the constitution,but also it cannot even be inconsistent with the substantive provisions of the relevant statute. g) in exercise of the power u/art.142 of the constitution,this court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. h) the power u/art.142 of the constitution is a constitutional power and not restricted by statutory enactments. however,this court would not pass any order u/art.142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. in other words,acting under article 142,this court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. i) the powers u/art.142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. STATUTE section 7 of the prevention of corruption act,1988 reads that public servant taking gratification other than legal remuneration in respect of an official act. s.13 of the prevention of corruption act,1988 deals with criminal misconduct by a public servant. in the prevention of corruption act,1947 the same "criminal misconduct" which is available in s.13 of the 1988 act had been dealt with in s.5 of the 1947 act.s.5(2) of the 1947 act mandates that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. however,proviso to sub-s.(2) of s.5 gives power to the court that for any special reasons to be recorded in writing,impose a sentence of imprisonment of less than one year.such relaxation in the form of a proviso has been done away with in the 1988 act. to put it clear,in the 1988 act,if an offence u/s.7 is proved,the same is punishable with imprisonment which shall be not less than six months and in the case of section 13,it shall not be less than one year.

FACTS the appellant-accused was working as a head clerk in the traffic cadre section in the office of the senior divisional personnel officer,south central railway,vijayawada during the period from april,1992 to november,1997. the nature of duties of the appellant-accused included dealing with and processing of the matters like promotions,transfers,seniority list,roster list,pay fixation on promotions,retirements,resignations etc.of the personnel. one k.rama rao-the complainant,who was examined as pw-1,was posted as yard points man,grade 'a' under station superintendent,south central railway,tanuku from december,1995 to june,1997. in june,1997,due to excess staff at tanuku,he was instructed to report at head quarters,vijayawada and accordingly,when he reported there,he was asked to go back to tanuku.thereafter,he went back to tanuku from where he was subsequently transferred to rajahmundry. thereafter,pw-1 made a representation to his senior officer requesting him for posting at vijayawada,cheerala,vetapalam or tenali.later,pw-1 was transferred to vijayawada. as the appellant-accused was dealing with the transfers,the complainant (pw-1) met him on 05.11.1997 at his office to pursue about the issuance of the said transfer order. the appellant-accused asked him to come on 10.11.1997. when he met him on aforesaid date, the appellant asked him to come on the next day as he was busy in pay-fixation work. on 11.11.1997,again he went to the office of the appellant but he could not find him on his seat. again a day after i.e.on 13.11.1997,when he met the appellant-accused,he informed him that his request for transfer has been processed and the order is ready and the same has been placed before the a.p.o.for signature and asked him to come on the next day,i.e.,on 14.11.1997,and demanded rs.200/-for releasing the said office order. he reported the matter in writing to the inspector of police,central bureau of investigation (in short 'the cbi),vijayawada. on 14.11.1997,a trap was laid by the cbi officials along with panchas and when the accused demanded and accepted a sum of rs.200/-as illegal gratification,he was caught red handed along with the money which was recovered from the right hand side pocket of his pant. an fir was registered by the inspector,cbi,visakhapatnam branch. after recording the statements of the witnesses,inspector of police,cbi,visakhapatnam filed charge sheet against the appellant-accused for an offence punishable under sections 7,13(1)(d)(ii) read with s.13(2) of the prevention of corruption act,1988 in the court of special judge for cbi cases at visakhapatnam. the special judge,cbi, convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of rs.500/-and,in default,to suffer simple imprisonment for one month for the offence punishable u/s.7 of the act and one year rigorous imprisonment with a fine of rs.500/-and,in default,to suffer simple imprisonment for one month for the offence punishable u/ss.13(1)(d) (ii) read with s.13(2) of the act. against the said order,the appellant-accused filed criminal appeal before the high court of andhra pradesh. the high court,by impugned judgment dated 03.10.2007 dismissed the appeal filed by the appellant-accused and confirmed the conviction passed by the trial court. hence,the appellant-accused has preferred this appeal by way of special leave petition before this court. ARGUMENT inasmuch as the alleged incident took place on 14.11.1997 and 14 years have elapsed since then,the amount of rs.200/-said to have been received by the appellant is trivial in nature and also of the fact that due to the said conviction and sentence he lost his job,leniency may be shown and sentence be reduced to the period already undergone. he fairly admitted that out of the maximum period of one year,the appellant had served only 52 days in prison. with this factual position,let us consider whether the request of the learned senior counsel for the appellant is to be accepted and sentence be reduced to the period already undergone. inasmuch as the incident had occurred on 14.11.1997 and the trial court has convicted him on 19.03.2001 which was affirmed by the high court on 03.10.2007,at this juncture,i.e.,after a gap of 14 years,there is no need to retain the same sentence and the court is not justified in directing the appellant to serve the remaining period after such a long time. by drawing our attention to art.142 of the constitution of india,learned senior counsel for the appellant vehemently submitted that in order to do complete justice,this court has ample power to reduce the sentence even to the extent of period already undergone or any other order which would be beneficial to the parties approaching this court. ISSUE notice only on quantum of sentence-hearing on all aspects-permissibility. quantum of sentence-whether requires any reduction. ANALYSIS there is no dispute as regards the date of occurrence and the date of conviction passed by the trial court and affirmed by the high court. inasmuch as the conviction on both counts have been confirmed by this court and we are confined to sentence part alone and in view of the minimum sentence prescribed u/ss.7 and 13 of the act,we are of the view that though long delay may be a ground for reduction of sentence in other cases,the same may not be applicable to the case on hand when the statute prescribes minimum sentence. about the request based on delay that the appellant has lost his job,undergone the ordeal all along etc. a lenient view be taken in this case,it is useful to refer decision of this court in state of m.p.vs.shambhu dayal nagar,(2006) 8 scc 693 2006 indlaw sc 716 wherein it was held that it is difficult to accept the prayer of the respondent that a lenient view be taken in this case. the corruption by public servants has become a gigantic problem. it has spread everywhere. no facet of public activity has been left unaffected by the stink of corruption. it has deep and pervasive impact on the functioning of the entire country. large-scale corruption retards the nation-building activities and everyone has to suffer on that count. similar claim based on art.142 has been negatived in several decisions by this court,we need to refer only the latest decision of this court in manish goel vs.rohini goel,(2010) 4 scc 393 2010 indlaw sc 301. the facts in that case are that the parties by persuasion of the family members and friends,entered into a compromise and prepared a memorandum of understanding dated 13.11.2009,in the proceedings pending before the mediation centre,delhi,by which they agreed on terms and conditions incorporated therein,to settle all their disputes and also for dissolution of their marriage. the parties filed an application under section 13-b(1) of the hindu marriage act,1955 before the family court,delhi seeking divorce by mutual consent. the constitution benches of this court in supreme court bar assn.v.union of india (1998) 4 scc 409 1998 indlaw sc 688 and e.s.p.rajaram v.union of india (2001) 2 scc 186 2001 indlaw sc 20411 held that u/art.142 of the constitution,this court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. it is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure. in mota ram vs.state of haryana,(2009) 12 scc 727 2009 indlaw sc 682,this court,while reiterating the above principles has concluded that art.142 cannot be exercised to negate the statutory provisions. in academy of nutrition improvement and others vs.union of india,jt 2011 (8) sc 16 2011 indlaw sc 515,the following conclusion about the applicability of art.142 is relevant: the question is having held that rule 44i to be invalid,whether we can permit the continuation of the ban on sale of non-iodised salt for human consumption for any period.art.142 of the constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice,if exercise of such jurisdiction is not be contrary to any express provision of law. though the jurisdiction of this court,u/art.142 of the constitution of india is not in dispute,we make it clear that exercise of such power would,however,depend on the facts and circumstances of each case. the high court,in exercise of its jurisdiction,u/s.482 of the criminal procedure code and this court,u/art.142 of the constitution,would not ordinarily direct quashing of a case involving crime against the society particularly,when both the trial court as also the high court have found that the charge leveled against the appellant under the act has been made out and proved by the prosecution by placing acceptable evidence. the orders do not disclose any factual details and the relevant provisions under which the accused was charged/convicted and minimum sentence,if any,as available in the act as well as the period already undergone. from the analysis of the above decisions and the concerned provisions with which we are concerned,the following principles emerge: a) when the court issues notice confining to particular aspect/sentence,arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the court for arguing the matter on all aspects. b) long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence,particularly,when the statute prescribes minimum sentence.in other cases where no such minimum sentence is prescribed,it is open to the court to consider the delay and its effect and the ultimate decision. c) in a case of corruption by public servant,quantum of amount is immaterial.ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution. d) merely because the delinquent lost his job due to conviction under the act may not be a mitigating circumstance for reduction of sentence,particularly,when the statute prescribes minimum sentence. e) though art.142 of the constitution gives wider power to this court,waiver of certain period as prescribed in the statute imposing lesser sentence than the minimum prescribed is not permissible. f) an order,which this court can make in order to do complete justice between the parties,must not only be consistent with the fundamental rights guaranteed by the constitution,but also it cannot even be inconsistent with the substantive provisions of the relevant statute. g) in exercise of the power u/art.142 of the constitution,this court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. h) the power u/art.142 of the constitution is a constitutional power and not restricted by statutory enactments. however,this court would not pass any order u/art.142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. in other words,acting under article 142,this court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. i) the powers u/art.142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. STATUTE section 7 of the prevention of corruption act,1988 reads that public servant taking gratification other than legal remuneration in respect of an official act. s.13 of the prevention of corruption act,1988 deals with criminal misconduct by a public servant. in the prevention of corruption act,1947 the same "criminal misconduct" which is available in s.13 of the 1988 act had been dealt with in s.5 of the 1947 act.s.5(2) of the 1947 act mandates that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. however,proviso to sub-s.(2) of s.5 gives power to the court that for any special reasons to be recorded in writing,impose a sentence of imprisonment of less than one year.such relaxation in the form of a proviso has been done away with in the 1988 act. to put it clear,in the 1988 act,if an offence u/s.7 is proved,the same is punishable with imprisonment which shall be not less than six months and in the case of section 13,it shall not be less than one year.

the accused appellant has been held guily of of fences punishable under section 302 and section 3762f of indian penal code. the trial court sentenced the appellant to death under section 302 ipc and to undergo rigorous imprisonment for life and pay a fine of rs 10000 in default of payment to undergo further r i for 3 years under section 3762f ipc. while the learned additional sessions judge made a reference to the high court for confirmation of death sentence under section 366 cr. p c the appellant preferred an appeal putting in issue his conviction and sentence. the criminal reference and the criminal appeal were heard by a division bench of rajasthan high court. the two learned judges constituting the division bench differed in their opinion. in the opinion of one learned judge the circumstantial evidence on which rests the prosecution case was not sufficient to record a finding of guilty against the appellant on any of the charges framed against him. in the opinion of the other learned judge the prosecution evidence was sufficient to sustain the conviction as recorded by the trial court though the case was not one of those rarest of rare cases as would warrant death sentence being awarded to the appellant. in view of the difference of opinion the learned acting chief justice assigned the case for hearing by a third judge under section 392 of cr. p c the third learned judge has on an independent appreciation of evidence recorded his own findings upholding the conviction of the accused on both the charges framed against him and thus agreeing with one of the two learned judges constituting the division bench in conclusion. in the result the high court has declined the confirmation of death sentence but upheld the conviction on both the charges found proved and dismissed the appeal laying challenge to the conviction subject to modification in the sentence by substituting sentence of life imprisonment for death sentence under section 302 ipc. the accused appellant has filed this appeal by special leave. kumari s a young child aged about 5 years was last seen at about 4 p m on 18th march 1991 and thereafter she did not return home. at about 7 a m on 19th march 1991 kishori lal pw4 informed bd pw2 the unfortunate father of s that dead body of a girl was lying near mohalla basera on the outskirts of village kotputli. bd rushed to the place only to find that the dead body was of none else than his own daughter section blood was oozing out from her mouth and private parts. a noose was also found around her neck. at 7 25 a m on 19 3 1991 first information report was lodged by bd at police station kotputli. offence was registered under sections 302 and 376 ipc. the inves tigation commenced. the dead body was sent for post mortem examination which was performed at 9 30 a m on the same day by a medical board of three doctors. it was found that the victim was brutally ravished and thereafter killed. according to the medical opinion the probable cause of death of s was shock produced due to vaginal trauma and rupture of post fornix along with asphyxia due to ligature around the neck. all injuries found on the person of the victim could be around 6 of 24 hours old prior to the time of post mortem examina tion. the vaginal injuries clotted blood and injuries to post fornix were indica tive of rape having been committed on the victim. the clothes were removed from the dead body and seized. slides of vaginal swab were prepared for cyto chemical analysis for blood and seminal stains. the forensic science laboratory confirmed presence of group b blood on the clothes of deceased. the accused was arrested on 3 4 1991 on suspicion. on 4 4 1991 he was medically examined. there was no injury on his private parts or on any other part of body. the clothes on his person did not have any blood or seminal stains. he was a grown up male of 21 years and capable of performing sexual intercourse. on 5 4 1991 at about 12 30 p m he gave an information exbt. and in confirmation of the information led the police to a dry well wherefrom an underwear and baniyan wrapped in a newspaper dated 18 3 1991 were recovered. the clothes so recovered were sent to forensic science laboratory. according to report exbt. human semen was detected on underwear. p30 of forensic science laboratory human blood of group b was detected on the underwear. the accused was challaned and charge sheeted for the offences as already stated hereinabove. the prosecution examined 21 witnesses in all. it is not necessary here to extensively deal with the evidence adduced by the prosecution. suffice it to observe that there is no direct evidence connecting the accused with the offences charged. the prosecution case depends on circumstantial evidence. the pieces of circumstantial evidence which have been found proved and held as forging an incriminating chain against the accused are as under i last seen together ii abnormal conduct of the accused iii recovery of underwear and baniyan which was found to be stained with semen and blood group b which is also the blood group of the deceased iv false plea of alibi and v accused absconding since the date of offence. we would proceed to examine each of the pieces of incriminating circumstantial evidence so as to find out if each one of the circumstantial evidence is proved individually and whether collectively it forges such a chain of incriminating circumstances as would fasten the guilt on the accused beyond by shadow of reasonable doubt. in dhananjoy chatterjee v state of west bengal 1994 2 scc 220 1994 indlaw sc 1743 wherein one of us dr a s anand j as his lordship then was spoke for the bench. this court held as under in a case based on circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypoth esis of the guilt of the accused. those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. it needs no reminder that legally estab lished circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. in dhananjoy chatterjee 's case 1994 indlaw sc 1743 supra the decision of this court in sharad birdhichand sarda v state of maharashtra 1984 4 scc 116 1984 indlaw sc 432 was relied on. in the later case it was also held that a false explanation or false plea taken by the accused can be used as an additional link in the chain of circumstantial evidence subject to satisfication of three essential conditions namely i various links in the chain of evidence led by the prosecution have been satisfactorily proved ii the said circumstance points to the guilt of the accused with reasonable definiteness and iii the circumstance is in proxim ity to the time and situation. i last seen together on the point of last seen together there is solitary testimony of a child witness shalu pw7 aged about 4 years on 23 3 1992 the date of her examination in the court. on asking a few questions by way of preliminary examination the learned trial judge found that the witness could answer some of the questions. she stated that accompanied by phukla another young girl a cousin of hers and s the deceased she had gone to purchase balloon from the shop of goma. while returning the accused told s that her feet were mudstained and he would wash her feet and saying so he took s inside his house leaving behind the two girls including shalu pw7 who returned to their houses leaving s behind. it is this testimony which has been relied upon by the trial court as also by the high court as the evidence of last seen together. the witness is a child witness of very tender age and examined in the court almost a year after the date of the incident. we have very carefully read the statement of this witness. there is nothing in her statement to suggest that what she is narrating in the court is the story of a day soon before the date and time of the incident or the date on which dead body of s was found. to constitute evidence of last seen together the evidence must definitely permit an inference being drawn that the victim and the accused were seen together at a point of time in close proximity with the time and date of the commission of crime. from the evi dence of shalu pw7 such an inference can not be drawn. goma to whose shop the three girls had gone to buy balloon has not been examined. there is something mysterious about the discovery of shalu as a witness to the incident. s has died. the third girl who was with s and shalu has not been examined either in the court or during investigation. the statement of shahu was recorded during investigation on 25 3 1991 i e about six days after the date of incident. harish chand sharma the investigating officer was specifically asked how the name of this witness came to his knowledge during investigation. he gave an evasive answer saying that the fact that shalu was accompanying s must have come in the staement of the witnesses. he was further asked to name the witness in whose statement shalu 's reference was available but the investigation officer drew a blank and could not tell the name of the witness from whom any clue as to shalu was received by him. thus how and in what manner the investigating officer came to learn about shalu pw7 so as to record her statement during investigation remains shrounded in mystery. the fact remains that the testimony of shalu pw 7 aged 4 years even if taken at its face value does not constitute such a circumstance as to draw an incriminating inference against the accused and connect him with the crime. abnormal conduct of accused kalu ram pw5 stated that two or three days after the date of dead body of s having been found. he and santosh. pw9 had gone to see a movie in a cinema hall where the accused was employed as a gate keeper. there the accused had enquired from them as to what was the punishment awardable to an offender who was found to have been committed rape on a girl and killed her. the accused was told by the witness that the punishment could be 20 or even 40 years of imprisonment or imprisonment for life. thereafter the wit nesses went to see movie in the cinema hall. during cross examination kalu ram stated that the accused was his neighbour previously known to him. on a pertinent question the witness stated that while making such a query there was no change in the facial expression of the accused that is he had remained normal. santosh pw9 did not support the version of kalu ram and was declared hostile. without going into the question as to whether the statement of kalu ram pw5 is to be believed or not in view of the same having not been supported by santosh pw9 let us assess the intrinsic value of such testimony as a piece of incriminating evidence. it appears that to begin with the death of s was a blind murder and the police was clue less about the likely offender. the police appears to have embarked upon a search akin to a combing operation and in that process several suspected characters were called and interrogated. harish chand sharma pw21 stated that between 19th and 25th march 1991 the accused subhash was called at the police station several times for making enquiries. he did not remember and was therefore not in a position to tell how many number of times the accused subhash was called for interrogation or making enquiries. on seeing the case diary he stated that on 21 3 1991 the accused was definitely called twice on the same day though there is no mention of what enquiries were made from him. however the accused was not detained and was sent back. any person even if innocent and not connected in any way with a gruesome crime which had recently occurred and was talk of the town if called by police and interrogated as a suspect would be scared and be apprehensive of the likelihood of his being implicated in the crime. placed in such situation if a villager unaware of the law happens to ask a person who he feels knows the things better than what he himself does as to what would be the period of incarceration to be suffered by any person for such an offence the impulse for inquiry may be outcome of a feeling of nervousness or mere inquisitiveness such an enquiry is not necessarily suggestive of the working of a criminal mind. iii recovery of underwear stained with blood and semen strangely enough the underwear and baniyan though discovered and seized on an information given by the accused and on his pointing out apparently on a statement recorded under section 27 of the evidence act have not been produced and exhibited in the court. what happened to these clothes is not known. there is not investigation directed towards finding out and no evidence worth its name collected and adduced in the court to show that the underwear and baniyan were of the accused. insofar as baniyan is concerned it has no stains of any type on it and therefore its discovery and seizure is meaningless and irrelevant. so far as the underwear is concerned the investigation suffers from another infirmity also. blood sam ple of the accused was not collected and therefore not grouped. no evidence is available to show as to what was the blood group of the accused and therefore the possibility of blood on the underwear being of the accused himself can not be and is not ruled out. the number and extent of spread of stains is also not known. shri sushil kumar jain the learned counsel for the accused appellant has placed reliance on shankarlal gyarasilal dixit v state of maharashtra air 1981. sc 765 1980 indlaw sc 47. therein a charge under sections 376 and 302 ipc was sought to be substantiated on circumstanctial evidence. one of the circumstan tial evidence relied on was that a human blood stain of b group was found on the accused 's pant which blood group was also of the deceased. another circumstantial evidence relied on was that a stain of semen was found on the under pant of the accused. this court held that the presence of blood stain of b group measuring 0 5 cm. in diameter on the appellant 's pant and of a dried stain of semen on his under pant were circumstances for too feeble to establish that the appellant raped or murdered the victim. b group is not uncommon group of blood and no effort was made to exclude the possibility that the blood of the accused belonged to the same group. as regards the dried stain of semen on the appellant 's under pant the court observed that the accused was a grown up man of 30 years and no compelling inference could arise that the stain was caused during the course of the sexual assault committed by him on the victim girl. in the present case the age of the accused was about 21 years at the time of the incident. on his arrest he was subjected to medical examination and found to be a potent and capable person. presence of semen stain on underwear assuming that the underwear belonged to the accused though there is no evidence adduced in this regard is not by itself an incriminating piece of evidence connecting the accused with the crime in question. so also the discov ery of b group blood stain on the underwear can not be treated as an incrimi nating piece of evidence against the accused connecting him with the crime because there is no evidence that the underwear belonged to the accused and further the possiblity of the underwear being stained with the blood of the person to whom it belonged or the accused if he was wearing it has not been ruled out. false plea of alibi. the high court has gone completely amiss in holding that a plea of alibi was taken by the accused and that was found to be false. the accused has not stated during his statement under section 313 cr. p c and nowhere suggested during cross examination of prosecution witnesses that at the time of the incident he was at a place wherefrom he could not have reached the place of the offence on the date and at the time of its commission. although the dead body of the victim was found on the outskirts of the village however there is no material available on record to fix the place and the likely time at which rape was committed on s and then she was murdered. what is being treated as the plea of alibi by the trial court and the high court is this. the accused appears to have been engaged as a causal not regular gate keeper at hira moti a local talkies. the proprietor of the cinema hall was examined to state that on 18th and 19th march the accused had taken leave from his job and during those days he was not present on duty. this piece of evidence was put to the accused during his statement under section 313 cr. p c and in reply he stated galat hai not correct. the purpose of asking questions during examination under section 313 cr. p c is to afford the accused personally an opportunity of explaining any incriminating circumstance so appearing in evidence against him. the accused may or may not avail the opportunity for offering his explanation. the accused did not avail the opportunity and stood short by simply stating that the statement of cinema owner was not correct. literal meaning of alibi is elsewhere. in law this term is used to express that defence in a criminal prosecution where the party accused in order to prove that he could not have committed the crime charged against him offers evidence that he was in a different place at that time. the plea taken should be capable of meaning that having regard to the time and place when and where he is alleged to have committed the offence he could not have been present. the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. see law lexicon p ramnath iyer second edition p 87. denial by an accused of an assertion made by his employer that the accused was on leave of absence from duty on the date of offence does not by any stretch of reasoning or logic amount to pleading alibi. we are clearly of the opinion that the accused appellant has not taken a plea of alibi and therefore the question of finding it false and then drawing an inference adverse to him does not arise at all. v absconding of the accused was the accused absconding at all. grave injustice has been done to the accused by holding it as a fact that the accused was absconding after the date of the incident and then treating the so called absconding as a piece of incrimi nating circumstantial evidence against the accused. according to harish chand sharma the accused was arrested on 3 4 1991 vide exbt. p21 at behror which is a place situated at a distance of about 30 35 kms. from village kotputli where the incident had taken place. though the accused is alleged to have been arrested at behror but the memo of arrest was not prepared at behror it was prepared at village kotputli. the memo of arrest does not state the arrest of accused having been made at behror. if the accused was arrested at behror there is no reason why the memo of arrest should not have been prepared at village behror. at least this fact should have been mentioned in the memo of arrest even if the same was prepared at village kotputli. secondly harish chand sharma himself states that between 19 3 1991 and 25 3 1991 the ac cused was called several times at the police station and on 21 3 1991 itself he was called twice in a day. thus he was always available to the police. kalu ram pw5 accompanied by a friend santosh pw9 had gone to see a movie in cinema talkies heera moti two days after the date of the incident and there the accused was present on his duty. there is no evidence adduced by the prosecution to hold that soon after the date of the offence the accused was found missing from his residence or the place of his employment and was not available though searched at the place or places where normally he ought to have been. hence it could not have been held that the accused was absconding. conclusion. thus none of the pieces of evidence relied on as incriminating by the trial court and the high court can be treated as incriminating pieces of circumstantial evidence against the accused. though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. in shankarlal gyarasilal dixit 's case 1980 indlaw sc 47 supra this court cautioned human nature is too willing when faced with brutal crimes to spin stories out of strong suspicions. this court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear cogent and unimpeachable evidence by the prosecu tion before an accused is condemned a convict. the trial court and the high court have proceeded on an assumption of availability of five pieces forging links in the chain of circumstantial evi dence out of which we have found as stated hereinabove four of the alleged circumstances not to be pieces of incriminating circumstantial evidence at all. we are left with circumstance No 3 only i e recovery of underwear and baniyan stained with semen and human blood group b which alone in the fact and circumstances of the case discussed hereinabove can not form basis of conviction of the accused appellant for the offence charged. before parting with the case we would like to place on record an observation of ours touching an aspect of the case. there are clueless crimes committed. the factum of a cognizable crime having been committed is known but neither the identity of the accused is disclosed nor is there any indication available of the witnesses who would be able to furnish useful and relevant evidence. such offences put to test the wits of an investigating officer. a vigilant investigating officer well versed with the techniques of the job is in a position to collect the threads of evidence finding out the path which leads to the culprit. the ends which the administration of cirminal justice serves are not achieved merely by catching hold of the culprit. the accusation has to be proved to hilt in a court of law. the evidence of investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. this is necessary to exclude the likelihood of any innocent having been picked up and branded as culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstances treating them as of beyond doubt evidentiary value. the appeals are allowed. conviction of the accused appellant under sections 302 and 3762f of indian penal code is set aside. he is acquitted of the charges framed against him. he shall be set at liberty forthwith if not required to be detained in connection with any other offence. appeals allowed.

FACTS the accused-appellant has been held guily of of-fences punishable under section 302 and section 376(2)(f) of indian penal code. while the learned additional sessions judge made a reference to the high court for confirmation of death sentence under section 366 cr. p.c., the appellant preferred an appeal putting in issue his conviction and sentence kumari s, a young child aged about 5 years, was last seen at about 4 p.m. on 18th march, 1991 and thereafter she did not return home. at about 7 a.m. on 19th march 1991, kishori lal, pw4 informed bd (pw2), the unfortunate father of s, that dead body of a girl was lying near mohalla basera on the outskirts of village kotputli. the dead body was sent for post-mortem examination which was performed at 9.30 a.m., on the same day, by a medical board of three doctors. it was found that the victim was brutally ravished and thereafter killed. according to the medical opinion the probable cause of death of s was shock produced due to vaginal trauma and rupture of post- fornix along with asphyxia due to ligature around the neck. the forensic science laboratory confirmed presence of group-b blood on the clothes of deceased. the clothes of the accussed recovered were sent to forensic science laboratory. according to report human semen was detected on underwear and human blood of group 'b' was detected on the underwear. ARGUMENT the learned counsel for the accused-appellant has placed reliance on shankarlal gyarasilal dixit v. state of maharashtra, air (1981. sc 765 1980 indlaw sc 47. therein a charge under sections 376 and 302 ipc was sought to be substantiated on circumstanctial evidence. one of the circumstan-tial evidence relied on was that a human blood stain of 'b' group was found on the accused's pant which blood group was also of the deceased. another circumstantial evidence relied on was that a stain of semen was found on the under-pant of the accused. the court held that the presence of blood-stain of 'b' group measuring 0.5 cm. in diameter on the appellant's pant and of a dried stain of semen on his under-pant, were circumstances for too feeble to establish that the appellant raped or murdered the victim. b' group is not uncommon group of blood and no effort was made to exclude the possibility that the blood of the accused belonged to the same group. as regards the dried stain of semen on the appellant's under-pant, the court observed that the accused was a grown-up man of 30 years and no compelling inference could arise that the stain was caused during the course of the sexual assault committed by him on the victim girl. in the present case the age of the accused was about 21 years at the time of the incident. on his arrest he was subjected to medical examination and found to be a potent and capable person. presence of semen stain on underwear, assuming that the underwear belonged to the accused though there is no evidence adduced in this regard, is not by itself an incriminating piece of evidence connecting the accused with the crime in question. so also the discov-ery of 'b' group blood-stain on the underwear cannot be treated as an incrimi-nating piece of evidence against the accused connecting him with the crime because there is no evidence that the underwear belonged to the accused and further the possiblity of the underwear being stained with the blood of the person to whom it belonged, or the accused if he was wearing it has not been ruled out ISSUE we would proceed to examine each of the pieces of incriminating circumstantial evidence so as to find out if each one of the circumstantial evidence is proved individually and whether collectively it forges such a chain of incriminating circumstances as would fasten the guilt on the accused beyond by shadow of reasonable doubt. ANALYSIS there is nothing in child witness’s statement to suggest that what she is narrating in the court is the story of a day soon before the date and time of the incident or the date on which dead body of s was found. to constitute evidence of last seen together, the evidence must definitely permit an inference being drawn that the victim and the accused were seen together at a point of time in close proximity with the time and date of the commission of crime. any person even if innocent and not connected in any way with a gruesome crime which had recently occurred and was talk of the town, if called by police and interrogated as a suspect, would be scared and be apprehensive of the likelihood of his being implicated in the crime. the high court has gone completely amiss in holding that a plea of alibi was taken by the accused and that was found to be false. the accused has not stated during his statement under section 313 cr. p.c. and nowhere suggested during cross-examination of prosecution witnesses that at the time of the incident he was at a place wherefrom he could not have reached the place of the offence on the date and at the time of its commission. the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. see law lexicon, p. ramnath iyer, second edition, p.87. denial by an accused of an assertion made by his employer that the accused was on leave of absence from duty on the date of offence does not, by any stretch of reasoning or logic, amount to pleading alibi. the accused-appellant has not taken a plea of alibi and therefore the question of finding it false, and then drawing an inference adverse to him, does not arise at all. v) absconding of the accused was the accused absconding at all. grave injustice has been done to the accused by holding it as a fact that the accused was absconding after the date of the incident and then treating the so-called absconding as a piece of incrimi-nating circumstantial evidence against the accused. none of the pieces of evidence relied on as incriminating, by the trial court and the high court, can be treated as incriminating pieces of circumstantial evidence against the accused. though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. in shankarlal gyarasilal dixit's case 1980 indlaw sc 47 (supra), this court cautioned - "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. the court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecu-tion before an accused is condemned a convict. the trial court and the high court have proceeded on an assumption of availability of five pieces forging links in the chain of circumstantial evi-dence out of which we have found, as stated hereinabove, four of the alleged circumstances not to be pieces of incriminating circumstantial evidence at all. the factum of a cognizable crime having been committed is known but neither the identity of the accused is disclosed nor is there any indication available of the witnesses who would be able to furnish useful and relevant evidence. such offences put to test the wits of an investigating officer. the ends, which the administration of cirminal justice serves, are not achieved merely by catching hold of the culprit. the accusation has to be proved to hilt in a court of law. the evidence of investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. this is necessary to exclude the likelihood of any innocent having been picked up and branded as culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstances treating them as of 'beyond doubt' evidentiary value.

FACTS kumari s, a young child aged about 5 years, was last seen at about 4 p.m. on 18th march, 1991 and thereafter she did not return home. at about 7 a.m. on 19th march 1991, kishori lal, pw4 informed bd (pw2), the unfortunate father of s, that dead body of a girl was lying near mohalla basera on the outskirts of village kotputli. the dead body was sent for post-mortem examination which was performed at 9.30 a.m., on the same day, by a medical board of three doctors. it was found that the victim was brutally ravished and thereafter killed. according to the medical opinion the probable cause of death of s was shock produced due to vaginal trauma and rupture of post- fornix along with asphyxia due to ligature around the neck. the forensic science laboratory confirmed presence of group-b blood on the clothes of deceased. the clothes of the accused recovered were sent to forensic science laboratory. according to report human semen was detected on underwear and human blood of group 'b' was detected on the underwear. the accused was arrested on 3.4.1991 on suspicion. on 4.4.1991, he was medically examined. there was no injury on his private parts or on any other part of body. the clothes on his person did not have any blood or seminal stains. he was a grown up male of 21 years and capable of performing sexual intercourse. on 5.4.1991, he gave an information exbt. p/23 and in confirmation of the information led the police to a dry well wherefrom an underwear and baniyan wrapped in a newspaper dated 18.3.1991 were recovered. the clothes so recovered were sent to forensic science laboratory. according to report exbt. p/27 human semen was detected on underwear. according to report exbt. p/30 of forensic science laboratory human blood of group 'b' was detected on the underwear. the accused-appellant has been held guilty of offences punishable under section 302 and section 376(2)(f) of indian penal code. while the learned additional sessions judge made a reference to the high court for confirmation of death sentence under section 366 cr. p.c., the appellant preferred an appeal putting in issue his conviction and sentence. ARGUMENT therein a charge under sections 376 and 302 ipc was sought to be substantiated on circumstantial evidence. one of the circumstantial evidence relied on was that a human blood stain of 'b' group was found on the accused's pant which blood group was also of the deceased. another circumstantial evidence relied on was that a stain of semen was found on the under-pant of the accused. as regards the dried stain of semen on the appellant's under-pant, the court observed that the accused was a grown-up man of 30 years and no compelling inference could arise that the stain was caused during the course of the sexual assault committed by him on the victim girl. in the present case the age of the accused was about 21 years at the time of the incident. on his arrest he was subjected to medical examination and found to be a potent and capable person. presence of semen stain on underwear, assuming that the underwear belonged to the accused though there is no evidence adduced in this regard, is not by itself an incriminating piece of evidence connecting the accused with the crime in question. ISSUE we would proceed to examine each of the pieces of incriminating circumstantial evidence so as to find out if each one of the circumstantial evidence is proved individually and whether collectively it forges such a chain of incriminating circumstances as would fasten the guilt on the accused beyond by shadow of reasonable doubt. ANALYSIS there is nothing in child witness’s statement to suggest that what she is narrating in the court is the story of a day soon before the date and time of the incident or the date on which dead body of s was found. to constitute evidence of last seen together, the evidence must definitely permit an inference being drawn that the victim and the accused were seen together at a point of time in close proximity with the time and date of the commission of crime. any person even if innocent and not connected in any way with a gruesome crime which had recently occurred and was talk of the town, if called by police and interrogated as a suspect, would be scared and be apprehensive of the likelihood of his being implicated in the crime. the accused has not stated during his statement under section 313 cr. p.c. and nowhere suggested during cross-examination of prosecution witnesses that at the time of the incident he was at a place wherefrom he could not have reached the place of the offence on the date and at the time of its commission. the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. denial by an accused of an assertion made by his employer that the accused was on leave of absence from duty on the date of offence does not, by any stretch of reasoning or logic, amount to pleading alibi. the accused-appellant has not taken a plea of alibi and therefore the question of finding it false, and then drawing an inference adverse to him, does not arise at all. grave injustice has been done to the accused by holding it as a fact that the accused was absconding after the date of the incident and then treating the so-called absconding as a piece of incriminating circumstantial evidence against the accused. none of the pieces of evidence relied on as incriminating, by the trial court and the high court, can be treated as incriminating pieces of circumstantial evidence against the accused. though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. in shankarlal gyarasilal dixit's case 1980 indlaw sc 47 (supra), this court cautioned - "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. the court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict. the trial court and the high court have proceeded on an assumption of availability of five pieces forging links in the chain of circumstantial evidence out of which we have found, as stated hereinabove, four of the alleged circumstances not to be pieces of incriminating circumstantial evidence at all. the factum of a cognizable crime having been committed is known but neither the identity of the accused is disclosed nor is there any indication available of the witnesses who would be able to furnish useful and relevant evidence. the ends, which the administration of criminal justice serves, are not achieved merely by catching hold of the culprit. the evidence of investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. this is necessary to exclude the likelihood of any innocent having been picked up and branded as culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstances treating them as of 'beyond doubt' evidentiary value.

the respondent No. i was tried before the court of sessions visakhapatnam for offences under section 120 b indian penal code section 409 section 477 a and section 471 read with section 467 i p c while respondent No 2 was tried for an offence under section 120 b and for offences under sections 409 read with section 109 477 a and 471 read with section 467 i p c each of the respondents was convicted of the first two offences but. the respondent No i alone was convicted of the other two offences. various sentences were passed against them by the additional sessions judge visakhapatnam who presided over the court. the respondents preferred appeals before the high court challenging their convictions and sentences. the state on the other hand preferred an application for revision under section 439 cr. p c for the enhancement of the sentences passed on the respondents. the high court allowed the two appeals acquitted the respondents and dismissed the application for revision preferred by the state. the state of andhra pradesh has come up before this court in appeal by obtaining special leave under article 136 of the constitution. the prosecution case in so far as it is material for the decision of this appeal is as follows. in the year 1929 the andhra engineering co which was originally a partnership firm formed by one d l n raju was converted into a private limited company with its headquarters at visakhapatnam. we shall refer to this company throughout as the aeco. it obtained licences from the government under the electricity act for supply of electrical energy to visakhapatnam anakapalli and some other places. as the aeco did not have the necessary capital to undertake the work raju floated in the year 1933 a public limited company called visakhapatnam electric supply corporation ltd and another in the year 1936 called the anakapalli electric supply corporation ltd the aeco transferred its licences for the supply of electrical energy to the consumers of visakhapatnam to vesco and similarly transferred to aeco the licence to supply electrical energy to consumers at anakapalli. the aeco was appointed managing agent for each of these corporations under separate agreements. some time later other industrial concerns the andhra cements ltd vi jayawada and the east coast ceremics. rajahmurthy were started apparently by raju himself and the aeco was appointed the managing agent of each of these concerns. the original managing agency agreement in favour of aeco with respect to vesco was for a period of 15 years i e from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the government under the electricity act. a mention may be made of the fact that in june 1952 the vesco undertaking was acquired by the government under the provisions of the electricity undertaking acquisition act but nothing turns on it. the vesco had its own board of directors while the aeco had also its own separate board of directors. the vesco had no managing director but at each meeting of its board of directors one of the directors used to be elected chairman. the same practice was followed at the meeting of the general body of the shareholders. the aeco on the other band always had a managing director first of whom was d l n raju. he died in the year 1939 and was succeeded by r k n g raju an advocate of rajahmundry. this person however did not shift to visakhapatnam on his becoming the managing director but continued to stay most of the time at rajahmundry. according to the prosecution both these concerns were running smoothly and efficiently during the lifetime of d l n raju because he was personally attending to their affairs. his successor however apart from the fact that be continued to be staying mostly at rajahmundry was also interested in several other ventures including a sugar factory at dewas in central india. eventually many of those ventures failed. according to the prosecution the second raju was not bestowing sufficient care and attention on the affairs of vesco. the aeco as managing agents of vesco had appointed in the year 1939 one d v appala raju a trusted employee as its representative and as the secretary of vesco. in 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of d brothers. he was succeeded by t visweswara rao p w 6 an employee of the aeco. the respondent No 1. ganeswara rao was also an old employee of aeco having been appointed a stenotypist in the year 1923 on an initial salary of rs p m eventually he became the head clerk therein. he pressed his claim for appointment as secretary of vesco and representative of the managing agents at visakhapatnam and r h g raju appointed him to that post. all this is not disputed. the respondent No 1 even after his appointment on two posts connected with vesco continued to work with the aeco also whose business had by then been confined only to that of managing agents of the four companies floated by d l n raju. it is the prosecution case that as secretary of vesco and the resident representative of the managing agents the respondent No i was attending to the day to day affairs of vesco which included the receiving of all sums of money due to vesco spending money for the purpose of vesco attending to the appointment supervision and control of the staff of vesco purchasing materials required for the purpose of vesco and supervising over the accounts of vesco. he was thus all important with respect to the every day affairs of vesco. his dual capacity enabled the respondent No i to earn the confidence not only of the directors of aeco but also of those of vesco. the accounts maintained by the vesco used to be explained by him not only to the directors but also to the shareholders. the knowledge of the financial position of vesco obtained by them used to be derived essentially from the respondent No 1. as secretary of vesco it was his duty to convene the meetings of the board of directors to present before them the periodical statement of receipts and expenditure of vesco to convene meetings of the general body to prepare the managing agents report and the director 's report as also to see to the presentation of auditors report and the statement of accounts. the explanations of the managing agents and the directors of vesco with respect to the items mentioned in the orders of the board used also to be placed by him before the shareholders. it was also his duty to have the accounts of vesco audited by the auditors elected by the general body and to produce before the auditors the relevant accounts vouchers bank statements and so on. there were no complaints about the management of the affairs of vesco or the aeco till the end of 1946 or the beginning of 1947. one significant fact however which occurred prior to 1946 is referred to by the prosecution. till the year 1945 messrs c p rao co a firm of chartered accountants were the auditors of vesco but after the respondent No i became secretary. one b rajan was elected auditor not only for vesco but for all the other four concerns including aeco. this person was auditor for greenlands hotel at visakhapatnam. of which the respondent No i was a director. r k n g raju took till towards the end of 1947 and died at madras in april 1948. according to the prosecution the respondent No i wanted to take advantage of this fact and conceived of a scheme for misappropriating as much money belonging to vesco as possible before the managing agency agreement of aeco came to an end in october 1948. i secured the promotion of the approver k v ramana who was originally accounts clerk to the post of senior accountant. similarly k v gopala raju was transferred from the post of stores clerk to the general department and k s n murty the discharged accused was appointed stores clerk in his place. later however murty was also got transferred to the general section and replaced by p w 18. srinivasa rao originally a stores boy. the approver who was originally an accounts clerk with the aeco was it may be mentioned appointed a cashier in vesco in 1946 at the instance of the respondent No i and was thus beholden to him. he was later promoted as senior accountant and in his place the respondent No 2. laksbminarayana rao was appointed the cashier. according to the prosecution the respondent No i took both the approver and lakshminarayana rao in his confidence as also some other persons known and unknown for carrying out his nefarious purpose namely the misappropriation of the funds of vesco during the subsistence of aeco 's managing agency of vesco. the conspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of vesco went on till the end of the accounting year. the term of the managing agency was renewed in 1943 and aeco con tinued to be managing agents until the vesco was taken over by the government in 1952. i continued to be the secretary of vesco and resident representative of the managing agents throughout the period of conspiracy. after the death of r k n g raju it was discovered that the aeco was indebted to many concerns which were under its managing agency the liability being shown either as that of aeco or that of r k n g raju personally. again the vesco was shown as indebted to the andhra cement to the extent of rs 42 000. this amount was however paid by the aeco from the funds of vesco. i and some of his friends were in search of a rich and substantial man who would be amenable to them to fill the post of managing director of aeco. eventually their choice fell on g v subba raju p w 25 a resident of manchili who held a large number of shares in the aeco and who was besides related to r k n g raju by marriage. it is said that this person has not received much education and knows only bow to sign his name in english. he was assured that by consenting to become the managing director be would not be required to discharge onerous duties and that the respondent No i would look to all the affairs of vesco. he was also told that apart from signing important papers which may be sent to him by the respondent No i from time to time to manchili or wherever be might be would have no work to do. he agreed and was elected managing director of aeco in the middle of 1948. upon this understanding he accepted the position offered to him. the vesco used to receive large amounts of money from high tension power consumers such as the railways k g hospital the port administration the andhra university etc. by cheques. but domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent No 2. the respondent No 2 was asked by the respondent No i to maintain a private note book. in that book payments which used to be made by respondent No 2 on the basis of slips issued by the respondent No i used to be noted and the amount totalled up at the end of the day. this amount was posted in vesco 's cash handover book as by safe indicating that this amount was kept in the safe though in fact it was not. on the basis of the entries in the handover book the final accounts were written up. i opened four personal accounts in different banks including the imperial bank of india. when the respondent No i had to issue a personal cheque on any of these banks he used to ask the second respondent to send an equivalent amount to the bank concerned for being credited to his account. these amounts also used to be noted in the private note book and entered. another thing which the respondent No i initiated was opening a heading in the ledger called advance purchase of materials. amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. it may be mentioned that subba raju used to visit visakhapatnam twice a month and check up the account books. at that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein had been sent to the bank for being deposited. apparently subba raju was fully satisfied with this and other explanations and therefore he appointed one c section raju who was the manager of andhra cements to supervise over the affairs of vesco apparently because of this a new method of misappropriation was adopted by the respondents by starting in the vesco account books an account called suspense account. a lakh of rupees passed through that account. amounts which were misappropriated used to find their way in this account. a new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made. subba raju was not satisfied with the nature of supervision exercised by c section raju over the affairs of vesco because he used to look only at the cash book entries of the days on which he paid visits to vesco 's office to which he used to go with previous intimation. besides that c section raju 's management of andhra cements had landed it into a loss of rs 30 000. because of all these things he had c section raju replaced towards the end of the year 1951 by one subbaramayya a retired finance officer from the madras electricity board both as a director of andhra cements and as a supervisor over the accounts of vesco. subbaramayya took his work seriously and called for information on a number of points from the respondent No 1. he however was unable to obtain any information. in january 1952 he therefore brought one section g krishna aiyar who had vast experience in the maintenance of accounts of electrical undertaking 's having been chief accountant of the south madras electric supply corporation to undertake an investigation and then to act as financial adviser. in the meantime on november 29 1951 there was a meeting of the general body at which the accounts were among other things to be considered. there was a considerable uproar at that meeting because the respondent No 1 said that the auditor 's report had not been received. the shareholders felt that the report had been received but was being suppressed or deliberately withheld. however the meeting was postponed and eventually held on december 9 1951. on that date the respondent No 1 produced the auditor 's report. according to the prosecution the report is a forged document. that was also the feeling of a number of shareholders who wanted to see the original but one dutt who was chairman of the meeting after seeing exhibit p 234 said that the report seemed to be a genuine one. section g krishna aiyar after his appointment in january 1952 made close enquiry and submitted an interim report. that report showed that during the period 1948 49 rs 33 271 10 0 shown as paid to the andhra power system were in fact not paid. the respondent No 1 on being asked to explain said that he would give his explanation to the managing director. the interim report showed that there was a shortage of about rs 90 000 for this period. on february 12 1952 the respondent No i wrote to the managing director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of march 1952. further scrutiny of the accounts was being carried out by krishna aiyar and in his subsequent report he pointed out that rs 2 38 000 which were shown as having been paid to the andhra power system had actually not been paid. in fact in april 1952 the collector attached vesco properties for realising this amount. on april 30 1952 the respondent No 1 by selling some of his property himself paid rs 50 000 to the andhra power system towards the sum due to it from vesco and had promised to pay the balance shortly thereafter. he was given time for doing so but he failed to pay it. the directors of vesco thereafter authorised k section dutt one of the directors to lodge a complaint with the police which he accordingly lodged on may 19 1952. on the next day the police placed an armed guard around the office of the respondent No i and seized a number of papers. as a result of investigation they found that there was a total misappropriation of rs 3 40 000. on may 13 1954 a chargesheet was filed against the two respondents as well as murti and the approver ramana. od september 13 1954 ramana offered to make a full confession to the additional district magistrate independent who was empowered to grant pardon under section 337 of i he code of criminal procedure. he however directed ramana to make his confession before a submagistrate. the latter accordingly made a confession on november 15 1954 and on november 17 1954 the additional district magistrate independent granted him pardon and that is how he came to be examined as a witness in this case. as already stated the additional sessions judge convicted both the respondents the respondent No i in respect of each head of the offences with which he was charged and the respondent No 2 in respect only of the offences of conspiracy and misappropriation. the high court set aside the conviction of the respondents on a number of grounds. in the first place according to the high court joint trial of two or more persons in respect of different offences cornmitted by each of them is illegal and that here as they were charged with having committed offences under section 120 b section 409 section 477 a and section 476467 i p c they could not be tried jointly. according to it the provisions of section 239 were of no avail. next according to the high court even if section 239 is applicable its provisions are subject to those of section 234 and as such the trial being for more than three offences was impermissible. then according to the high court offences under. section 409 and section 471467 are of different kinds and are not capable of joint commission. therefore they could not be jointly tried. further according to the high court where a conspiracy has yielded its fruits the conspirators can be charged with the actual offences committed and not with conspiracy to commit those offences. charge of conspiracy according to the high court can be validly made only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No 2 or the approver evidently had any such expectations since they did not in fact receive any corresponding benefit. in so far as the respondent No 2 is concerned the high court has held that since he was charged with a specific offence under s 409 i p c he could not be convicted of mere abetment of an offence. the approver 's evidence was held by the high court to be inadmissible because the pardon granted to him was illegal. the high court has also held that his evidence is unreliable and further that the additional sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by section 159 of the evidence act. the high court has further stated that inadmissible evidence was taken on record by the additional sessions judge namely account books of billimoria brothers maintained in gujrati and further that the additional sessions judge was in error in allowing the prosecution to use those account books for establishing absence of entries with regard to certain payments alleged in the vesco books to have been made to them. finally the high court held that the examination of the respondent under section 342 of the code was unfair for a number of reasons and that the additional sessions judge had failed to perform an important duty in that he did not call the attention of the respondents to the provisions of section 342 which enable an accused person to give evidence in his own behalf. mr bhimasankaram appearing for the two respondents however has not sought to support the judgment of the high court on all these points. the points which he urged are briefly these 1 that there was a misjoinder of charges and persons in that the various provisions of section 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. the procedure adopted in the investiga tion and committal stages was irregular. 3 irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the evidence act. 4 that the court abused its powers under s 342 cr. p c while conducting the examination of the respondents. the evidence of the approver was inadmissible because the pardon granted to him was illegal that in any case it is unreliable was so found even by the sessions judge and must therefore be rejected. if the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. we shall deal with mr bhimasankaram 's contentions in the order in which we have set them out. the first question for consideration is whether there was a misjoinder of parties and of persons. the first charge is in respect of the conspiracy alleged to have been entered into by the two respondents k v ramana the approver and others known and unknown to commit criminal breach of trust of the funds of vesco and in order to screen its detection to falsify the accounts of vesco and to use forged documents as genuine. on the face of it this is a valid charge. but certain objections have been taken to it with which we will deal at the appropriate place. the second charge is for an offence of criminal breach of trust punishable under section 409 and the accusation therein is that the two respondents along with ramana misappropriated 69 items aggregating to a little over rs 3 20 000. it is clear from the charge that some of the amounts were misappropriated between april 1947 and march 1950 some between april 1947 and march 1949 some between april 1947 and march 1951 and quite a large number between september 1947 and march 1950 and a still large number between april 1951 and march 1952. it is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. unless therefore the provisions of section 239 are applicable it would follow that there was a misjoinder of charges. the third charge is that the two respondents along with the approver. ramana made false entries on seven different dates in the account books between september 19 1947 and march 18 1952 and thus committed an offence under section 477 a i p c the fourth charge is that the two respondents along with the approver. ramana forged six documents on different dates between march 28 1949 and november 12 1951 and thus committed an offence under section 471 read with section 467 i p c as we have pointed out earlier the respondent No i alone was convicted by the additional sessions judge in respect of the third and fourth charges. mr bhimasankaram supports the reason given by the high court for coming to the conclusion that there was a misjoinder of charges. the main reasons upon which the conclusion of the high court is based are firstly that there could be no clubbing together of the provisions of the various clauses of section 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in contravention of section 239 c. in coming to the conclusion that the provisions of various clauses of section 239 can not be applied cumulatively the high court has relied upon the decision in re vankavalapati gopala rao 1956 airandhra 21. there the learned judges have held thus these clauses are mutually exclusive and they can not be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. each clause is an exception to the general rule enacted in section 233 cr. if such a combination is permissible all persons accused of offences described in cls. a to g can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in section 233. the chapter is split up into two sub heads form of chargesand joinder of charges. 221 to 232 are comprised under the first sub head and sections 233 to 240 in the second. 221 to 223 deal with the framing and content of charge. section 224 deals with the interpretation of the language of the charge and section 225 with the effect of errors in the charge. 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be framed. section 232 deals with the power of the appellate court or the high court when it discovers that there is material error in the charge. then we come to the other sub head of this chapter. section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge. it thus lays down the normal rule to be followed in every case. but it also provides that this will be subject to the exceptions contained in sections. 234 235 236 and 239. the first three provisions relate to the framing of charges against a single accused person. section 234. 1 deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and section 231 2 what is meant by the expression offences of the same kind. this provision lifts partially the ban on the trial of a person for more than one offence at the same trial. section 2351 however goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. thus under this provision if the connection between the various offences is established the limitations placed by section 2341 both as regards the number and the period during which the offences are alleged to have been committed will not apply. full effect can not possibly be given to this provision if we hold that it is subject to the limitation of s 2341. sub s 2 of section 235 deals with a case where an offence falls within two definitions and sub s 3 deals with a case in which a number of acts are alleged against an accused person different com binations of which may constitute different offences. then we come to section 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and further provides that any number of such charges may be tried together. it also permits that charges could be framed against an accused person in the alternative if the court thinks fit. thus this is a special provision available in case of doubt and is neither subject to the limitations prescribed by section 233 nor those of the other preceding provisions. now if the respondent No 1 were alone tried upon the second third and the fourth charges the provisions of section 2351 could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack. similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction. here however we have a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. a conspiracy must be regarded as one transaction and there fore a single individual charged with it could be tried with the aid of section 2351 for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s 2341. for where all the acts are referable to the same conspiracy their connection with one another is obvious. the only provision in the code which permits the joint trial of more than one person is section 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. let us therefore examine closely the provisions of section 239. it will be useful to set out the provisions of that section which run thus this first thing to be noticed is that section 239 does not read as if its various clauses can be applied only alternatively. on the other hand at the end of cl. f there is a conjunction and. if the intention of the legislature was that the provisions of these clauses should be available only alternatively it would have used the word or and not and which has the opposite effect. grammatically therefore it would appear that the provisions of the various clauses are capable of being applied cumulatively. the opening words of the section show that it is an enabling provision and therefore the court has a discretion to avail itself cumulatively of two or more clauses. of course a court has the power to depart from the grammatical construction if it finds that strict adherence to the grammatical construction will defeat the object the legislature had in view. the concluding portion of section 239 shows that the provisions contained in the former part of chapter xix shall as far as may be apply to the charges framed with the aid of section 239. does this mean that the provisions of section 233 234 235 and 236 must also be complied with. obviously section 233 does not override the provisions of section 239. section 234 can not also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they can not be tried also for offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. it could not have been the intention of the legislature to create such a situation. again as already stated section 2341 does not override the provisions of section 2351 which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. unless we read section 2341 as not enacting a fetter on section 2351 it may not be possible to give full effect to the latter. now since section 2341 can not be properly read a overriding section 2351 there is no valid reason for construing it as overriding the provisions of section 239 either. there are also other reasons which point to this conclusion which we will set out while considering the argument advanced by mr bhimasankaram. bhimasankaram contended that s 239 must be read at least subject to sections 2341 and 2351 on the ground. that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months the number of offences for which they could be tried can not exceed three. in this connection he relied upon the words within the meaning of section 224 occurring in cl. c of section 239. these words he contended clearly show that cl. c of section 239 is subject to the provisions of section 234. in our opinion the words within the meaning of section 234 indicate that what was meant by the words offence of the same kind persons accused of more offences than one of the same kind not exceeding three in numberor may have used the words person accused of more than one offence of the same kind to the extent permissible under section 234. therefore even if the expression same transaction alone had been used in section 2351 it would have meant a transaction consisting either of a single act or of a series of connec ted acts. the expression same transaction occurring in cls. a c and d of section 239 as well as that occurring in section 2351 ought to be given the same meaning according to the normal rule of construction of statutes. looking at the matter in that way it is pointless to inquire further whether the provisions of section 239 are subject to those of section 2361. the provisions of sub s 2 and 3 of section 235 are enabling provisions and quite plainly can have no overriding effect. but it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under section 239 s 236. is also an enabling provision to be availed of in case of doubt and it is meaningless to say that section 239 is subject to section 236. bearing in mind the fact that the provisions in the former part of chapter xix are applicable to charges made with the aid of section 239 only so far as may be it would not be right to construe section 239 as being subject to the provisions of sections 233 to 236. it was contended by mr chari that the expression former part would apply to the first sub division of chapter xix which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge. we can not however give the expression such a restricted meaning. for even in the absence of those words the earlier provisions could not have been ignored. for it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is therefore the duty of the court to construe a statute harmoniously. thus while it is clear that the sections preceding section 239 have no overriding effect on that section the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of s 239. indeed the very expression so far as may be empha sises the fact that while the earlier provisions have to be borne in mind by the court while applying section 239 it is not those provisions but the latter which is to have an overriding effect. apart from this the question whether the provisions of sections 233 to 236 have or have no overriding effect on section 239. is not strictly germane to the question considered by the high court that is clubbing together all the provisions of the various clauses of section 239. whether they can or can not be read cumulatively must be determined by consideration of the language used in those clauses. we have already indicated how those clauses may be grammatically read. on a plain construction of the provisions of section 239 therefore it is open to the court to avail itself cumulatively of the provisions of the different clauses of section 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law the provisions of sections 233 234 and 235 notwithstanding. the decision of the allahabad high court in t r mukherji 's case il is directly in point and is clearly to the effect that the different clauses of section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. a large number of decisions of the different high courts and one of the privy council have been considered in this case. no doubt as has been rightly pointed out in this case separate trial is the normal rule and joint trial is an exception. but while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in it would where the same act is committed by several persons be not only inconvenient but injudicious to try all the several persons separately. this would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. no corresponding advantage can be gained by the accused persons by following the procedure of separate trials. where however several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. but here again if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. we entirely agree with the high court that joint trial should be founded on some principle. but we find it difficult to appreciate what seems to be the view of the high court that because each clause of section 239 enunciates a separate principle those principles are so to speak mutually exclusive and can not be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form part of the same transaction. the high court has propounded that the connection described in each of the various clauses is mutually exclusive that no two of them can exist simulta neously in any case and that one can not therefore have in any case persons connected with one another in two or more ways. in other words as the high court puts it persons included in two or more of the groups can not all be tried together and that since there is absolutely nothing to connect one group with any other the persons of one group can not be tried with those of any other. no reason has been stated in support of this view. let us consider whether there is anything intrinsically incompatible in combining two clauses of section 239. take cls. a and b. a says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. b says that persons accused of an offence and persons accused of abetment or of an attempt to commit such offence may also be charged and tried together. now if persons a b and c are tried for an offence of murder what intrinsic difficulty would there be in trying x y and z of abetment of the same offence. the transaction in which all of them have participated is the same and the abetment by x y and z of the offence committed by a b and c would itself establish the connection of their acts with those of x y and z next let us take cls. a and c c provides that persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months could also be charged and tried together. let us consider these clauses along with another illustration. two persons a and b enter a house at night and first together commit the murder of a man sleeping there and then also his wife. each of them has committed two offences and each of them participated in the same offence. why can they not be tried jointly for both murders and why should there be two trials for the two murders. the offences are of the same kind and must be deemed to have been committed in the course of the same transaction because of association and mutual connection. now supposing in the illustration given a killed the man and b killed his wife. under cl. c they could be tried together because the offences are of the same kind. it would be ridiculous to say that they can not be tried together for jointly committing the murder of the man and the wife because cl. a and c can not be combined. for without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible. then take section a and d d persons accused of different offences committed in the course of the same transaction can be tried together. let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land. some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group. during the course of the attack one person from the second group was killed as a rest of blows with an axe inflicted by the aggressors a b and c two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt. let us say that the grievous hurt was caused as a result of lathi blows given by x and y simple hurt was caused by lathi blows given by z here the offences committed were those under sections 147 302 325 and 323 i p c the offences being different and the persons commiting the offences being different they could not be tried jointly only with the help of cl. a of section 239. nor again could they be tried jointly only with the help of cl. d yet the transaction in which the offences were committed is the same and there is a close association amongst the persons who have committed the different offences. what intrinsic difficulty is there in trying them all together simultaneously availing of cls. a and d of section 239. these are enabling provisions which circumstance implies that the court may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the code. all these persons can be jointly tried for offences under section 147 by recourse to cl. a so also a b and c could be jointly tried together for an offences under section 302. x and y can be charged not only with offences under sections 147 and 325 i p c but also under section 302 read with section 149. similarly z can be charged with offence 's under sections 147 323 and offences under section 302. read with section 149 and section 325. read with section 149. the same offence committed by all of them is that under section 147 and all of them can be tried jointly in respect of that offence under cl. similarly if we take cl. d by itself all of them can be tried jointly for the different offences committed by each of them in the course of the same transaction and if cl. a is unavailable they could not be tried for the offence under section 147 at the same trial. this means that the trial for an offence under section 147 will have to be separated from the trial for the different offences committed by them. it is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences. to repeat the object of the legislature in enacting section 239 cr. p c clearly was to prevent multiplicity of trials and not only would that object be defeated but an extraordinary result will ensue if the various clauses of section 239 are read disjunctively. the reasons given by the allahabad high court therefore do not merit acceptance. the decision in singarachariar 's case 1934 indlaw mad 352 c has really no bearing upon the point before us. what was held there was that sections 235 1 and section 236 are mutually exclusive and if a case is covered by one of them it can not be covered by the other. in that case the question was whether a person who was first tried for an offence under section 380 i p c for stealing a blank second class railway ticket from the booking office tried for it and acquitted could not be tried subsequently for the offence of forgery by making entries in that ticket and using it. the acquittal in the previous case was urged as a bar under section 4031 of the code to the trial for an offence under section 467 i p c the contention apparently was that this was a case which fell under section 236 cr. p c and that if he had been tried alternatively for both the offences at the same trial the court could have dealt with him under section 237 cr. the high court however held that to be a kind of case which fell under section 2351 of the code and that since that was so the provisions of section 236 were excluded. it is difficult to appreciate how this case assists the conclusion arrived at by the high court. in d k chandra 's case 1951 indlaw mum 117 f b it was held that the provisions of sections 234 235 and 236. being exceptions to section 233 must be strictly construed and that if joinder of charges did not fall under any of them it would be illegal and contrary to law. the precise point which we have to consider here did not fall for consideration in that case i e whether the provisions of the various clauses of section 239 could be used together or not. this decision is therefore of little assistance. on the other band there is the decision of this court in the state of andhra pradesh v kandinmlla subbaiah which is to the effect that where several persons had committed offences in the course of the same transactions they could jointly be tried in respect of all those offences under section 239 of the code of criminal procedure and the limitation placed by section 234 of the code could not come into operation. there nine persons were jointly tried for an offence under section 5 1 c and d of the prevention of corruption act 1947 and section 109 i p c read with s 420 section 466 and section 467 i p c and all except one for offences under sections 420 467471 i p c some of them were also charged with separate offences under some of these provisions. two of the accused persons preferred a revision application before the high court of andhra pradesh in which they challenged the charges framed against them. the high court allowed the revision application. but on appeal by the state of andhra pradesh to this court this court held that there was no misjoinder of charges that the introduction of a large number of charges spread over a long period was a question of propriety and that it should be left to the judge or the magistrate trying the case to adopt the course which he thought to be appropriate in the facts and circumstances of the case. in so far as some of the charges were concerned this court pointed out that the special judge who was to try the case should consider splitting them up so that the accused persons would not be prejudiced in answering the charges and defending themselves. it is true that the question of reading the various clauses cumulatively did not specifically arise for decision in that case but the high court had held that the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of sections 234 235 and 239 of the code of criminal procedure. dealing with this matter this court held at p 200 no doubt sub s 1 of section 234 provides that not more than three offences of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. but then section 235 1 provides that if in any one series of acts so connected together as to form the same transaction more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence. therefore where the alleged offences have been committed in the course of the same transaction the limitation placed by section 234 1 can not operate. no doubt the offence mentioned in charge No i is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. to this kind of charges. 239 would apply. this section provides that the following persons may be charged and tried together namely 1 persons accused of the same offence committed in the course of the same transaction 2 persons accused of abetment or an attempt to commit such an offence 3 persons accused of different offences committed in the course of the same transaction. clearly therefore all the accused persons could be tried together in respect of all the offences now comprised in charge No 1. this court has thus clearly read the provisions of the various clauses cumulatively and we see no reason to read them differently. there remains the decision of this court in k v krishna murthy iyer v the state of madras in on which mr bhimasankaram strongly relied. in that case this court upheld the order of the high court of madras in quashing the charges in the exercise of its inherent powers even before the conclusion of the trial. it is true that there the charges were 67 in number and spread over a long period of time. that again was a matter which came before the high court before conviction and not after the trial was over. when an objection is taken at an early stage there is time enough to rectify an error. but in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned additional sessions judge and it was only in the high court that the point was raised. in such circumstances what the court has to consider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder if any of the charges. this is quite clear from the provisions of section 537 of the code as amended by act 26 of 1955. in willie william slaney v the state of madhya pradesh all the learned judges were in agreement on the point that this section and section 535 cover every case in which there is departure from the rules set out in ch. xix ranging from error omissions and irregularities in charges that are framed down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. the whole question has again been examined by this court recently in birichh bhuian v the state of bihar subba rao j who delivered the judgment of the court has stated the position thus even if we were to assume that there has been a misjoinder of charges in violation of the provisions of sections 233 to 239 of the code the high court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. this decision completely meets the argument based upon dawson 's case. merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction can not be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice. for all these reasons we can not accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges. bhimasankaram supporting the view taken by the high court then contends that it is not permissible to frame a charge of conspiracy when the matter has proceeded beyond the stage of conspiracy and that in pursuance of it offences have actually been committed. a similar view was expressed by the same high court in the case which was reversed by this court in the state of andhra pradesh v kandinalla subbaiah 1962 2 scr 194 and it was held that conspiracy to commit an offence being itself an offence a person can be separately charged with respect to such a conspiracy. then this court has observed. this decision is sufficient to dispose of the point under consideration. in swamirathnam 's case 1 which is a decision of this court certain persons were tried for the offence of the conspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that conspiracy. it was urged before this court that there was misjoinder of charges and persons. negativing the contention. this court held that the charge as framed disclosed a single conspiracy although spread over several years that there was one object of the conspiracy and that was to cheat the members of the public that the fact that in the course of years other joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not have the effect of splitting the conspiracy into several conspiracies. that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and therefore the joint trial of the accused persons for the different offences was not vitiated. no doubt there is no discussion there as to the question whether the various clauses of section 239 could be combined or as to the impact of the provisions of section 233 to 236 on those of section 239. the actual decision of the case is however directly opposed to the contention now put forward before us. this decision has been followed in natwarlal sakarlal. mody v the state of bombay. a No iii of 1959 decided on january 19 1961. in that case the impact of section 120 b i p c on sections 233 and 239 of the code of criminal procedure was considered by this court and this court observed. here again the question of clubbing together of the various provisions of cls. a to d of section 239 was not raised expressly in the argument before the court. but the ultimate decision of the case would negative such argument. mr bhimasankaram then relying upon the decision in r v dawson 1960 2 w l r 435 contended that in any event it was not desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this court in the state of andhra pradesh v kandimalla subbaiah 1962 2 b c r 194. in the first place there the trial had not actually begun. again what was said by this court was that it is undesirable to complicate a trial by introducing a large number of charges spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or magistrate trying the case. objection was taken very seriously by mr bhimasankaram to the charge of conspiracy framed in this case. that charge reads thus adverting to the portion which we have bracketed his first objection was that the charge comprises within it not merely the conspiracy but also what was in fact done in pursuance of the conspiracy. his next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents. the third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits. the last objection was that the charge of conspiracy was added to the charge sheet very late. we shall first deal with the third point. the offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself can not disappear. in the indian penal code as originally enacted conspiracy was not an offence. section 120 b which makes criminal conspiracy punishable was added by the indian criminal law amendment act 1913 8 of 1913 along with section 120 a section 120 a defines conspiracy and section 120 b provides for the punishment for the offence of conspiracy. criminal conspiracy as defined in section 120 a and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means. section 120 b provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the code for the punishment of such conspiracy. criminal conspiracy was however not an unknown thing before the amendment of the indian penal code in 1913. but what the amendment did was to make that conspiracy itself punishable. the idea was to prevent the commission of crimes by so to speak nipping them in the bud. but it does not follow that where crimes have been committed the liability to punishment already incurred under section 120 b by having entered into a criminal conspiracy is thereby wiped away. no doubt as already stated where offences for committing which a conspiracy was entered into have actually been committed it may not in the particular circumstances of a case be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. but that would be a matter ultimately within the discretion of the court before which the trial takes place. in so far as the fourth point is concerned that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy. as we are remanding the appeal to the high court for a fresh decision after full consideration of the evidence adduced in the case it would be open to it to consider this matter particularly while judging the credibility of the evidence of the approver. in so far as the portion included in the bracket is concerned we agree with the learned counsel that it should not have found place there. the ideas however of the committing magistrate in stating all that is said there appears to have been merely to describe the conspiracy and do nothing more. we do not think that either that or the other objection raised that is that the charge embraces within it all the offences said to have been committed by the respondents can properly. be said to vitiate the charge. the object in saying what has been set out in the first charge was only to give notice to the respondents as to the ambit of the conspiracy to which they will have to answer and nothing more. even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice they are precluded by the provisions of section 225 from complaining about it at any rate after their conviction by the trial court. coming to the next point of mr bhimsankaram regarding the abuse of powers under section 342 his first contention was that long and involved questions were put to the respondents. his second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions. the third contention was that the questions were involved confusing and bordered on cross examination. finally he said that the court did not perform its duty under section 342 4 of the code as amended as it failed to bring to the notice of the respondents that they may if they chose give evidence in their defence. in support of his first contention he referred to questions nos 4 8 9 10 and 20 put to the respondent No i and question No 12 put to the respondent No 2 and tried to show that those questions rolled up a large number of separate questions and that it could not have been possible for the respondents to give any rational answers to those questions. we have read the questions and so also the answers. while we are disposed to agree with learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions the answers given by the respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions. that is to say they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements. in fact written statements have been filed by each of them in which every point left over has been fully answered. we are informed that the questions had been prepared before hand by the learned additional sessions judge copies thereof were made available to each of the respondents and it was with reference to those copies that they gave their answers in the court. a pointed reference was made to question. No 20 put to respondent. No i which contains as many as 22 sub heads and it is said that it was an extremely unfair and embarrassing question. what the learned additional sessions judge has done is to err on the side of over cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations. his object was to obviate the possibility of a complaint before the appellate court that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions. nor again do we think that there is any substance in the complaint made that the respondents had no opportunity of referring to the documents to which reference has been made in certain questions. no objection was taken on their behalf before the learned additional sessions judge and from the manner in which they have answered the questions there is no doubt that they must have had opportunity to look at the relevant documents and answer the questions. we are also satisfied that there is no substance in the complaint that the questioning bordered on cross examination. undoubtedly the learned additional sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross examination is wholly unjustifiable. the object of the learned additional sessions judge quite clearly was as already stated to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under section 342 finally we are clear that it was not the duty of the court to draw the pointed attention of the respondents to the provisions of sub s 4 of section 342 and tell them that they may if they chose enter the witness box. it is true that by introducing this provision the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the english law. the new provision however does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents. apart from that the respondents were represented by counsel at the trial who knew very well what the law was. no complaint was made by the respondents even in appeal that they were ignorant of their right that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced. in the circumstances this point must also be rejected as being without substance. the irrelevant evidence to which mr bhimasankaram referred was certain account books. the entries in the account books of vesco show that certain sums of money were paid to various parties crompton engineering co lumin electric co d brothers radio and electrical madras vizagapatam municipality p v ramanayya bros and andhra power system. they also show payment case was that the payments which were entered in the account of vesco do not find a place in the account books of the corresponding firms or authorities because they were never made by vesco. the high court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in. fact misappropriated by the respondents in the circumstance that there are no corresponding entries in the account books of those firms. the argument before the high court was and before us is that the absence of an entry can not of electricity duty to government. the prosecution be established by reference to section 34 of the indian evidence act which reads thus. what it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. these entries are however not by themselves sufficient to charge any person with liability. therefore when a sues b for a sum of money it is open to him to put his account books in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against b the entry though made by a in his own account books and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by a to b the entry by itself is of no help to a in his claim against b but it can be considered by the court along with the evidence of a for drawing the conclusion that the amount was paid by a to b to this limited extent entries in the account books are relevant and can be proved. section 34 does not go beyond that. it says nothing about non existence of entries in account books. we therefore agree with the high court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. the decision in queen empress v grees chunder banerjee 1884 i l r 10. cal 1024 upon which reliance is placed by the high court in support of its view is also to that effect. similarly in ram prashad singh v lakhpati koer 1902 i l r 30. cal 231 247. lord robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in queen empress v girish chander banerjee 1884 i l r 10 c l 1024. that however is not the only provision to be considered. there is section ii of the evidence act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. some of the facts in issue in this case are whether payments of certain sums of money were made to crompton engineering co and other firms or authorities. these are relevant facts. absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under section 11. the fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. for the purpose of showing that no amounts were received by the firms their account books would thus be as relevant as the vesco account books for the purpose of showing the contrary. similarly there is section 5 of the evidence act which reads thus it is the case of the prosecution that the alleged payments were never made by vesco to the various firms. it is also their case that these firms maintain their accounts in the regular course of business and it is their practice to enter in those accounts all payments received by them. both the sets of facts are relevant that is non receipt of the amounts by the firms and non existence of entries in their account books pertaining to those amounts. it is permissible therefore for the prosecution to lead evidence to drove both these facts. the best evidence to prove the latter set of facts consists of the account books of the firms themselves. it is under these provisions that the account books of the firms must be held to be relevant. what value to attach to them is another matter and would be for the court of fact to consider. it may further be mentioned that the account books of vesco show certain payments made to billimoria co of kharagpur. papers seized by the police include receipts purporting to have been signed by one j j billimoria on behalf of the firm. the prosecution case is that these receipts are forged documents and the entries in the account books of vesco are false. one of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm. those account books are in gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the vesco accounts. the high court held that since the account books were not translated they are not admissible in evidence. the high court was clearly wrong in so holding. in coming to this conclusion it has relied upon the provisions of section 356 2a of the code of criminal procedure. that section reads thus this provision relates only to the oral evidence adduced in a case and not to documentary evidence. mr bhimasankaram therefore very rightly did not support the view of the high court. in the circumstances we wish to say nothing further on the point. we may however point out that billimoria himself gave his evidence in english. another point urged by mr bhimasankaram was that as many as 2 000 documents were dumped by the prosecution in this case out of which 1600 documents were not sought to be proved by it. further 64 documents were missing from the records when they came to the high court and that this has caused serious prejudice to the respondent. no objection however was taken in the courts below on this score and in the absence of any prejudice to the respondents. we do not think that we should take notice of the complaint made by mr bhimasankaram. the third point stressed by him was that the approver was allowed to refresh his memory while deposing in the case by referring extensively to the account books and various documents produced in the case. this according to him was an absue of the provisions of section 159 of the evidence act. now section 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is being questioned or soon afterwards or to a writing made similarly by another person and read by the witness immediately or soon after the writing was made. section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in section 159. the complaint of mr bhimasankaram is that the approver should have been questioned about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books. instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them. in our opinion where a witness has to depose to a large number of transactions and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. he can not be expected to remember every transaction in all its details and section 160 specifically permits a witness to testify the facts mentioned in the documents referred to in section 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. that is precisely what happened in this case and we do not think that the additional sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the court. the next point is a formidable one. according to mr bhimasankaram the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible. further according to him the evidence of the approver was found by the additional sessions judge to be unreliable and therefore the first condition referred to in sarwan singh v the state of punjab was not satisfied. for all these reasons the evidence of the approver must be left out of account. if it is left out of account he contends there is nothing left in the prose cution case because as pointed out by the additional sessions judge himself the evidence of the approver is the pivot of the prosecution case. the pardon is stated to be illegal for two reasons. the first reason is that none of the offences alleged to have been committed falls within section 337 of the code of criminal procedure and the second reason is that the pardon was granted by an authority not empowered to grant it. section 337 1 as it stood before its amendment by act 26 of 1955 read thus. his contention is that where none of the offences is exclusively triable by the high court or the court of sessions pardon could be granted only if the offences are punishable with imprisonment which could extend to ten years but not if a higher punishment were provided for them. here one of the offences alleged against the respondents is criminal breach of trust punishable under section 409 i p c it is not exclusively triable by a court of sessions and the punishment as set out in the 7th column of schedule ii cr. p c was transportation for life or imprisonment of either description for ten years and fine. he contends that since the offence is punishable with transportation for life section 337 1 could not be availed of for granting pardon to the approver. it seems to us that it would not be correct to read section 337 1 in the way sought by learned counsel. the very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest. the gravity is of course to be determined with reference to the sentence awardable with respect to that offence. on the strength of these considerations mr chari for the state contends that if the words any offence punishable with imprisonment which may extend to 10 years were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court of sessions will be completely out of section 337 1. he suggests that this provision can also be reasonably interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver. no doubt if this interpretation is accepted the object of the section that is to embrace within it the graver offences would be fulfilled but we wish to express no opinion on it. for the pardon granted in this case can be regarded as being within the ambit of section 337 1 for another reason. it will be noticed that transportation for life was not the only punishment provided for an offence under section 409 of the indian penal code even before the amendment made to the indian penal code by section 117 of the act 26 of 1955 the other alternative being imprisonment up to 10 years. therefore since the offence under section 409 was not merely punishable with transportation for life but alternately also punishable with imprisonment which could extend to 10 years section 337 1 would apply. this section does not expressly say that the only punishment provided for the offence should be imprisonment not exceeding 10 years. the reason why two alternative maximum sentences are given in col 7 that is transportation for life now imprisonment for life and imprisonment not exceeding 10 years appears to be that the offence is not exclusively triable by a court of session and could also be tried by a magistrate who except when empowered under section 30 would be incompetent to try offences punishable with transportation for life now imprisonment for life and the further reason that it should be open to the court of session instead of awarding the sentence of transportation for life to a convicted person to award him imprisonment in a jail in india itself for a period not execeeding 10 years. now of course by the amendment made by section 117 of act 26 of 1955 for the words transportation for life the words imprisonment for life have been substituted but the original structure of all the sections now amended continues. that is why they read rather queer but even so they serve the purpose of allowing certain offences triable by a court of session to be triable also by magistrates of the first class. be that as it may there is no substance in the first ground. what we have said about pardon in respect of an offence under section 409 would apply equally to that for one under section 120 b because the punishment for it is the same as that for the offence under section 409. the offence under section 467 read with section 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of session and therefore in so far as such offence is concerned the argument of mr bhimasankaram would not even have been available. as regards the offence under section 477 a it is one of those sections which are specifically enumerated in section 337 1 and the argument advanced before us and which we have rejected would not even be available with regard to the pardon in respect of that offence. it is true that the respondent No i alone was convicted by the additional sessions judge of this offence and the offence under section 467 read with section 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. coming to the next ground of attack on the validity of pardon the argument of mr bhimasankaram is that whereas section 337 1 speaks of pardon being granted by a district magistrate or presidency magistrate a sub divisional magistrate or any magistrate of first class except in cases where an enquiry or trial was pending before another magis tratc the pardon here was granted by the additional district magistrate in a case where an enquiry was pending before the district magistrate and is therefore illegal and of no avail. he contends that section 337 1 speaks of the district magistrate which expression does not include an additional district magistrate. mr bhimasankaram 's argument on the point may be summarised thus such a power can not be conferred upon an additional district magistrate because section 337 1 does not contemplate grant of pardon by an additional district magistrate and that the additional district magistrate would have no status other than that of a magistrate first class. no doubt under entry 9 a in part iii of sch. iii to the code a magistrate first class has the power to grant pardon under section 337 but it is limited by the proviso thereto to certain classes of cases. a case under enquiry or trial before another magistrate does not fall in any of these classes. therefore a pardon granted by him in such a case would be illegal. the magistrate before whom the enquiry or trial is proceeding or the district magistrate would be the only authorities competent to grant a pardon in such a case. alternatively the state government has not made any directions under sub s 2 of section 10 specifying the powers of the district magistrate which would lie exercisable by the additional district magistrate concerned. in order to appreciate and consider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of madras which comprised within it the district of visakhapatnam. by government order No 3106 dated september 9 1949 the government of the province of madras issued certain instructions to the magistrates in pursuance of the separation of the judiciary from the executive. it divided the magistrates into two groups judicial magistrates and executive magistrates. the latter category comprises of the executive officers of the revenue department on whom the responsibility for the maintenance of law and order was to continue to rest. para 4 of the instructions provides. para 5 provides that as officers of the revenue department those magistrates would be under the control of the government through the board of revenue. the additional district magistrates independent would also be under the control of the government through the board of revenue. the category of judicial magistrates was constituted of the following 1 district magistrate 2 sub divisional magistrates 3 additional first class magistrates and 4 second class magistrates sub magistrates. the district magistrate was constituted as the principal magistrate of the district and as such was entrusted with the duty of general administration and superintendence and control over the other judicial magis trates in the district. in addition to his general supervisory functions and the special powers under the code of hearing revision petitions transfer petitions appeals from second class magistrates and the like the district magistrate was also to be assigned a specific area the cases arising from which would be disposed of normally by himself. this body of magistrates was made subordinate to the high court. till the separation between the judiciary and the executive was effected the collector as the head of the revenue department was also the district magistrate. consequent on the separation. he became only an additional district magistrate. part iv of the government order deals with the allocation of powers between the judicial and executive magistrates. para 193 occurring in this part deals with allocation of powers under the provisions of the code otherwise than these referred to in the earlier paragraphs. it specifically provides that the power to tender pardon udder section 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub s 1 of that section in which case a judicial magistrate may exercise that power. in spite of the government order all magistrates who have under sch. iii to the code of criminal procedure the power to grant pardon will continue to have that power and therefore a pardon granted by a judicial magistrate in contravention of the government order will not be rendered invalid. however that is not the point which is relevant while considering the argument of mr bhimasankaram. his point is that the proviso to section 3371 confers the power on the district magistrate to grant pardon in a case pending before another magistrate and not on a district magistrate and therefore his power to grant pardon in such cases can not be conferred under sub s 2 of section 10 on an additional district magistrate. according to him under that section only the powers of a district magistrate meaning thereby only the powers under entry 7 a in part v of sch. as distinguished from the power under the proviso to section 337 1 can be conferred upon an additional district magistrate. secondly according to him no direction has in fact been shown to have been made by the state government conferring upon an additional district magistrate the power of the district magistrate to grant pardon. in our opinion there is no subtance in the contention. the power conferred by sub s 1 of section 337 on the different clauses of magistrates is of the same character. the power to grant pardon in a case pending before another magistrate is no doubt conferred by the proviso only on the district magistrate. but entry 7 a in part v of sch. iii when it refers to the power of a district magistrate under section 337 1 does not exclude the power under the proviso. there is therefore no warrant for drawing a distinction between the powers of the district magistrate and the powers of a district magistrate. the power of a district magistrate to grant pardon has been specifically conferred on additional district magistrates as would appear from section No 37 of sch. iii of the government order which reads thus. mr chari for the state advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver even if we ignore the pardon was a competent witness. in support of his contention he strongly relied upon the decision in kandaswamy gounder. in re the appellant i l r 1957 mad 715 and the cases referred to therein in particular the decision in winson v queen 1866 l r i q b what has been held in all these cases is that where the trial of a person who was charged with having committed an offence or offences jointly with several persons is separated from the trial of those persons he would be a competent witness against them though of course there will always be the question as to what weight should be attached to his evidence. mr chari then referred to section 133 of the evidence act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does not cease to be an accomplice and contends that he is therefore as competent a witness as he would have been if he had not been granted pardon at all and not been put on trial. learned counsel further pointed out that the decisions show that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others his evidence is competent and admissible except when it is given in a case in which he is being actually tried. this legal position does not according to him offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under section 342 1 for enabling him to explain the circumstances appearing in evidence against him. if pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness. the question raised is an important one and requires a serious consideration. mr chari in support of his contention has cited a large number of cases indian as well as english and certain passages from halsbury 's laws of england. but in the view we take about the legal validity of the pardon tendered we do not wish to pronounce one way or the other on this very interesting question. now as regards the reliability of the approver. it is no doubt true that an approver has always been regarded as an infamous witness who on his own showing has participated in a crime or crimes and later to save his own skin turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed by him. the high court seems to think that before reliance could be placed upon the evidence of the approver it must appear that he is a penitent witness. that in our opinion is not the correct legal position. the section itself shows that the motivating factor for an approver to turn what in england is called king 's evidence is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has come to give evidence whether he has made a full and complete disclosure whether his evidence is merely self exculpatory and so on and so forth. the court has in addition to ascertain whether his evidence has been corroborated sufficiently in material particulars. what is necessary to consider is whether applying all these tests we should act upon the evidence of the approver should be acted upon. we however find that certain documents upon which mr chari wants to rely are not included in the paper book. it would take considerable time if we were to adjourn this matter now and give an opportunity to the parties to include those documents on record. the better course would be for us to set aside the acquittal of the respondents and send back the appeal to the high court or being decided on merits. the high court will of course be bound by the finding which we have given on the questions of law agitated before us. what it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents. we may mention that the high court 's observation that the approver 's evidence was treated as unreliable by the learned additional sessions judge is not correct. of course the view taken by the additional sessions judge is not binding on the high court. but it should remove from its mind the misconception that the additional sessions judge has not believed him. there is another thing which we would like to make clear. the decision in sarwan singh v the state of punjab 1957 b c r 953 on which reliance has been placed by the high court has been explained by this court in the case of maj e g barsay v the state of bombay. this court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth the evidence adduced in a case can not be considered in compartments and that even for judging the credibility of the approver the evidence led to corroborate him in material particulars would be relevant for consideration. the high court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. then again it would not be sufficient for the high court to deal with the evidence in a general way. it would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not. the prosecution would be well advised if instead of placing the evidence on each and every one of those large number of charges against the respondents it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges this would save public time and also serve the purpose of the prosecution. with these observations we set aside the acquittal of the respondents and remit the appeal to the high court for decision on merits in the light of our observations. appeal allowed. case remanded.

FACTS in 1929 the andhra engineering co.(aeco) which was originally a partnership firm formed by one d.l.n. raju was converted into a private limited, company with its headquarters at visakhapatnam. it obtained licences from the government under the electricity act for supply of electrical energy to visakhapatnam, anakapalli and some other places. as the aeco did not have the necessary capital to undertake the work, raju floated in 1933 a public limited company called visakhapatnam electric supply corporation ltd., and another in 1936 called the anakapalli electric supply corporation ltd. the aeco transferred its licences for the supply of electrical energy to the consumers of visakhapatnam to vesco and similarly transferred to aeco the licence to supply electrical energy to consumers at anakapalli. the aeco was appointed managing agent for each of these corporations under separate agreements. sometime later other industrial concerns, the andhra cements ltd., vijayawada and the east coast ceremics, rajahmurthy were started apparently by raju himself- and the aeco was appointed the managing agent of each of these concerns. the original managing agency agreement in favour of aeco with respect to vesco was for a period of 15 years the vesco had its own board of directors while the aeco had also its own separate board of directors. the vesco had no managing director but at each meeting of its board of directors one of the directors used to be elected chairman. the same practice was followed at the meeting of the general body of the shareholders. the aeco on the other hand always had a managing director, first of whom was d.l.n. raju. he died in the year 1939 and was succeeded by r.k.n.g. raju, an advocate of rajahmundry. this person, however, did not shift to visakhapatnam on his becoming the managing director but continued to stay most of the time at rajahmundry. the aeco as managing agents of vesco had appointed in 1939 one d.v. appala raju, a trusted employee, as its representative and as the secretary of vesco. in 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of d. brothers. he was succeeded by t. visweswara rao, an employee of the aeco. eventually their choice fell on g. v. subba raju, resident of manchili, who held a large number of shares in the aeco and who was, besides, related to r.k.n.g. raju by marriage. he was assured that by consenting to become the managing director be would not be required to discharge onerous duties and that the respondent no. i would look to all the affairs of vesco. he agreed and was elected managing director of aeco in the middle of 1948. upon this understanding he accepted the position offered to him. the vesco used to receive large amounts of money from high tension power consumers such as the railways, k. g. hospital, the port administration, the andhra university etc., by cheques. but domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent no. 2. the amount totalled up at the end of the day was posted in vesco's cash handover book as "'by safe" indicating that this amount was kept in the safe, though in fact it was not. on the basis of the entries in the handover book the final accounts were written up. the respondent no. i opened four personal accounts in different banks, including the imperial bank of india . when the respondent no. i had to issue a personal cheque on any of these banks he used to ask the second respondent to send an equivalent amount to the bank concerned for being credited to his account. these amounts also used to be noted in the private note book and entered. another thing which the respondent no. i initiated was opening a heading in the ledger called "advance purchase of materials." amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. it may be mentioned that subba raju used to visit visakhapatnam twice a month and check up the account books. at that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein had been sent to the bank for being deposited. apparently subba raju was fully satisfied with this and other explanations and, therefore, he appointed one c. s. raju, who was the manager of andhra cements to supervise over the affairs of vesco. apparently because of this a new method of misappropriation was adopted by the respondents by starting in the vesco account books, an account called "suspense account". a lakh of rupees passed through that account. amounts which were misappropriated used to find their way in this account. a new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made. besides that, c. s. raju's management of andhra cements had landed it into a loss of rs. 30, 000/-`. because of all these things he had c. s. raju replaced towards the end of 1951 by one subbaramayya, a retired finance officer from the madras electricity board both as a director of andhra cements and as a supervisor over the accounts of vesco. he, however, was unable to obtain any information. in january, 1952 he therefore brought one s. g. krishna aiyar who had vast experience in the maintenance of accounts of electrical undertaking's having been chief accountant of the south madras electric supply corporation, to undertake an investigation and then to act as financial adviser. krishna aiyar after his appointment made close enquiry and submitted an interim report. that report showed that during the period 1948-49 rs. 33, 271-10-0 shown as paid to the andhra power system were in fact not paid. the interim report showed that there was a shortage of about rs. 90, 000/- for this period. in april, 1952 the collector attached vesco properties for realising this amount. on april 30, 1952 the respondent no. 1, by selling some of his property, himself paid rs. 50, 000/- to the andhra power system towards the sum due to it from vesco and had promised to pay the balance shortly thereafter. he was given time for doing so but he failed to pay it. the directors of vesco thereafter authorised k. s. dutt, one of the directors to lodge a complaint with the police which he accordingly lodged on may 19, 1952. on the next day the police placed an armed guard around the office of the respondent no. i and seized a number of papers. as a result of investigation they found that there was a total misappropriation of rs. 3, 40, 000/-. on september 13, 1954 ramana offered to make a full confession to the additional district magistrate (independent) who was empowered to grant pardon under s. 337 of the code of criminal procedure. he, however, directed ramana to make his confession before a submagistrate. the latter accordingly made a confession on november 15, 1954 and on november 17, 1954 the additional district magistrate granted him pardon and that is how he came to be examined as a witness in this case. the additional sessions judge convicted both the respondents, the respondent no. i in respect of each head of the offences with which he was charged and the respondent no. 2 in respect only of the offences of conspiracy and misappropriation. in the first place according to the high court, joint trial of two or more persons in respect of different offences committed by each of them is illegal and that here as they were charged with having committed offences under s. 120-b, s. 409, s. 477-a and s. 476/467, i.p.c. they could not be tried jointly. ARGUMENT the points which he urged are briefly these: (1) that there was a misjoinder of charges and persons in that the various provisions of s. 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. (2) the procedure adopted in the investigation and committal stages was irregular. (3) irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the evidence act. (4) that the court abused its powers under s.342, cr. p.c. while conducting the examination of the respondents. (5) the evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the sessions judge and must, therefore, be rejected. if the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. as many as 2, 000 documents were "dumped" by the prosecution in this case out of which 1600 documents were not sought to be proved by it. further, 64 documents were missing from the records when they came to the high court and that this has caused serious prejudice to the respondent. ISSUE whether there was a misjoinder of parties and of persons. ANALYSIS s. 120 b provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the code for the punishment of such conspiracy. the first charge is in respect of the conspiracy alleged to have been entered into by the two respondents, k. v. ramana, the approver, and others "known and unknown" to commit criminal breach of trust of the funds of vesco and, in order to screen its detection, to falsify the accounts of vesco and to use forged documents as genuine. on the face of it this is a valid charge. but certain objections have been taken to it with which the court will deal at the appropriate place. the second charge is for an offence of criminal breach of trust punishable under s. 409 and the accusation therein is that the two respondents along with ramana, misappropriated 69 items aggregating to a little over rs. 3, 20, 000/-. it is clear from the charge that some of the amounts were misappropriated between april, 1947 and march, 1950, some between april, 1947 and march, 1949, some between april, 1947 and march, 1951 and quite a large number between september, 1947 and march, 1950 and a still large number between april, 1951 and march, 1952. it is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. unless, therefore, the provisions of s. 239 are applicable it would follow that there was a misjoinder of charges. the third charge is that the two respondents, along with the approver ramana made false entries on seven different dates in the account books between september 19, 1947 and march 18, 1952 and thus committed an offence under s. 477-a, i.p.c. the fourth charge is that the two respondents, along with the approver ramana forged six documents on different dates between march 28, 1949 and november 12, 1951 and thus committed an offence under s. 471 read with s. 467, i.p.c. there the learned judges have held that these clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. each clause is an exception to the general rule enacted in s. 233, cr. p.c. if such a combination is permissible, all persons accused of offences described in cls. (a) to (g) can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in s. 233. s 236 is a special provision available in case of doubt and is neither subject to the limitations prescribed by s. 233 nor those of the other preceding provisions. now, if the respondent no. 1 were alone tried upon the second, third and the fourth charges the provisions of s. 235(1) could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack. similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction. here, however, the court a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. a conspiracy must be regarded as one transaction and, therefore, a single individual charged with it could be tried with the aid of s. 235(1) for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s.234(1). the only provision in the code which permits the joint trial of more than one person is s. 239 and what the court to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. on the other hand at the end of cl. (f) there is a conjunction 'and'. now, since s. 234(1) cannot be properly read overriding s. 235(1) there is no valid reason for construing it as overriding the provisions of s. 239 either. s, 239 must be read at least subject to ss. 234(1) and 235(1) on the ground that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. thus where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months, the number of offences for which they could be tried cannot exceed three. in this connection he relied upon the words "within the meaning of s. 224" occurring in cl. (c) of s. 239. these words clearly show that cl. (c) of s. 239 is subject to the provisions of s. 234. in the court’s opinion the words "within the meaning of s. 234" indicate that what was meant by the words offence of the same kind" "'persons accused of more offences than one of the same kind not exceeding three in number"or may have used the words" person accused of more than one offence of the same kind to the extent permissible under s. 234. therefore, even if the expression "'same transaction" alone had been used in s. 235(1) it would have meant a transaction consisting either of a single act or of a series of connected acts. the expression "same transaction" occurring in cls. (a), (c) and (d) of s. 239 as well as that occurring in s. 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. looking at the matter in that way, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236(1). the provisions of sub-s. (2) and (3) of s. 235 are enabling provisions and quite plainly can have no overriding effect. but it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under s. 239.s. 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236. bearing in mind the fact that the provisions in the "former part" of chapter xix are applicable to charges made with the aid of s. 239 only "so far as may be" it would not be right to construe s. 239 as being subject to the provisions of ss. 233 to 236. the court could not, however, give the expression such a restricted meaning. for, even in the absence of those words, the earlier provisions could not have been ignored. for, it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the court to construe a statute harmoniously. thus, while it is clear that the sections preceding s. 239 have no overriding effect on that section, , the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of s.239. indeed, the very expression 'so far as may be' emphasises the fact that while the earlier provisions have to be borne in mind by the court while applying s. 239 it is not those provisions but the latter which is to have an overriding effect. criminal conspiracy as defined in s. 120-a and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means. criminal conspiracy was, however, not an unknown thing before the amendment of the indian penal code in 1913. but what the amendment did was to make that conspiracy itself punishable. the idea was to prevent the commission of crimes by, so to , speak, nipping them in the bud. but it does not follow that where crimes have been committed the liability to punishment already incurred under s. 120-b by having entered into a criminal conspiracy is thereby wiped away. no doubt, as already stated, where offences for committing which a conspiracy was entered into have actually been committed it may not, in the particular circumstances of a case, be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. but that would be a matter ultimately within the discretion of the court before which the trial takes place. in so far as the fourth point is concerned, that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy. the prosecution be established by reference to s. 34 of the indian evidence act which reads thus as what it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. these entries are, however, not by themselves sufficient to charge any person with liability. therefore, when a sues b for a sum of money it is open to him to put his account books' in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against b. the entry though made by a in his own account books, and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by a to b. the entry by itself is of no help to a in his claim against b but it can be considered by the court along with the evidence of a for drawing the conclusion that the amount was paid by a to b. to this limited extent entries -in the account books are relevant and can be proved. s. 34 does not go beyond that. it says nothing about non-existence of entries in account books. the court, therefore, agree with the high court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. the decision in queen empress v. grees chunder banerjee ((1884) i. l. r. 10 cal 1024.), upon which reliance is placed by the high court in support of its view is also to that effect. similarly in ram prashad singh v. lakhpati koer ((1902) i. l. r. 30 cal 231, 247). lord robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in queen empress v. girish chander banerjee ( (1884) i.l.r. 10 c.l 1024. ). there is s. ii of the evidence act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. some of the facts in issue in this case are whether payments of certain sums of money were made to crompton engineering co., and other firms or authorities. absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under s. 11. the fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. for the purpose of showing that no amounts were received by the firms, their account books would thus be as relevant as the vesco account books for the purpose of showing the contrary. there is s. 5 of the evidence act which reads thus as it is the case of the prosecution that the alleged payments were never made by vesco to the various firms. the offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of session . as regards the offence under s. 477-a, it is one of those sections which are specifically enumerated in s. 337 (1) and the argument advanced before the court and which the court rejected would not even be available with regard to the pardon in respect of that offence. it is true that the respondent no. i alone was convicted by the additional sessions judge of this offence and the offence under s. 467 read with s. 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. the decision in sarwan singh v. the state of punjab ([1957] b. c. r. 953.), on which reliance has been placed by the high court has been explained by this court in the case of maj. e. g. barsay v. the state of bombay . this court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of, the approver the evidence led to corroborate him in material particulars would be relevant for consideration. the high court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. then again it would not be sufficient for the high court to deal with the evidence in a general way. it would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not. the prosecution would be well, advised if, instead of placing the evidence on each and every one of those large number of charges against the respondents, it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges, this would save public time and also serve the purpose of the prosecution. the court set aside the acquittal of the respondents and remit the appeal to the high court for decision on merits in the light of our observations. STATUTE ss. 221 to 232 of ipc are comprised under the first sub-head and ss. 233 to 240 in the second. ss. 221 to 223 deal with the framing and content of charge. s. 224 deals with the interpretation of the language of the charge and s. 225 with the effect of errors in the charge. ss. 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be framed. s. 232 deals with the power of the appellate court or the high court when it discovers that there is material error in the charge. s. 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. but it also provides that this will be subject to the exceptions contained in ss. 234, 235, 236 and 239. the first three provisions relate to the framing of charges against a single accused person. s. 234 (1) deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and s. 231 (2) what is meant by the expression 'offences of' the same kind'. this provision lifts partially the ban on the trial of a person for more than one offence at the same trial. s. 235(1), however, goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. thus under this provision if the connection between the various offences is established the limitations placed by s. 234(1) both as regards the number and the period during which the offences are alleged to have been committed will not apply. sub-s. (2) of s. 235 deals with a case where an offence falls within two definitions and sub-s.(3) deals with a case in which a number of acts are alleged against an accused person, different combinations of which may constitute different offences. s. 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and further provides that any number of such charges may be tried together. it also permits that charges could be framed against an accused person in the alternative if the court thinks fit. s. 239 cls. (a) and (b)- cl. (a) says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. this first thing to be noticed is that s. 239 does not read as if its various clauses can be applied only alternatively. cl. (b) says that persons accused of an offence and persons accused of abetment, or, of an attempt to commit such offence may also be charged and tried together. the opening words of the section show that it is an enabling provision and, therefore, the court has a discretion to avail itself cumulatively of two or more clauses. the concluding portion of s. 239 shows that the provisions contained in the former part of chapter xix shall, as far as may be, apply to the charges framed with the aid of s. 239. does this mean that the provisions of s. 233, 234, 235, and 236 must also be complied with? obviously, s. 233 does not override the provisions of s. 239. s. 234 cannot also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they cannot be tried also for -offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. it could not have been the intention of the legislature to create such a situation. again, as already stated, s. 234(1) does not override the provisions of s. 235(1) which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. unless the court read s. 234(1) as not enacting a fetter on s. 235(1), it may not be possible to give full effect to the latter. it is under these provisions that the account books of the firms must be held to be relevant. what value to attach to them is another matter and would be for the court of fact to consider.

FACTS in 1929 the andhra engineering co.(aeco) which was originally a partnership firm formed by one d.l.n. raju was converted into a private limited, company with its headquarters at visakhapatnam. it obtained licences from the government under the electricity act for supply of electrical energy to visakhapatnam, anakapalli and some other places. as the aeco did not have the necessary capital to undertake the work, raju floated in 1933 a public limited company called visakhapatnam electric supply corporation ltd., and another in 1936 called the anakapalli electric supply corporation ltd. the aeco transferred its licences for the supply of electrical energy to the consumers of visakhapatnam to vesco and similarly transferred to aeco the licence to supply electrical energy to consumers at anakapalli. the aeco was appointed managing agent for each of these corporations under separate agreements. sometime later other industrial concerns, the andhra cements ltd., vijayawada and the east coast ceremics, rajahmurthy were started apparently by raju himself- and the aeco was appointed the managing agent of each of these concerns. the original managing agency agreement in favour of aeco with respect to vesco was for a period of 15 years i.e., from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the government under the electricity act. a mention may be made of the fact that in june, 1952 the vesco undertaking was acquired by the government under the provisions of the "'electricity undertaking acquisition act" but nothing turns on it. the vesco had its own board of directors while the aeco had also its own separate board of directors. the vesco had no managing director but at each meeting of its board of directors one of the directors used to be elected chairman. the same practice was followed at the meeting of the general body of the shareholders. the aeco on the other hand always had a managing director, first of whom was d.l.n. raju. he died in the year 1939 and was succeeded by r.k.n.g. raju, an advocate of rajahmundry. this person, however, did not shift to visakhapatnam on his becoming the managing director but continued to stay most of the time at rajahmundry. the aeco as managing agents of vesco had appointed in 1939 one d.v. appala raju, a trusted employee, as its representative and as the secretary of vesco. in 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of d. brothers. he was succeeded by t. visweswara rao, an employee of the aeco. eventually their choice fell on g. v. subba raju, resident of manchili, who held a large number of shares in the aeco and who was, besides, related to r.k.n.g. raju by marriage. it is said that this person has not received much education and knows only how to sign his name in english. he was assured that by consenting to become the managing director be would not be required to discharge onerous duties and that the respondent no. i would look to all the affairs of vesco. he was also told that apart from signing important papers which may be sent to him by the respondent no. 1 from time to time to manchili or wherever be might be would have no work to do. he agreed and was elected managing director of aeco in the middle of 1948. upon this understanding he accepted the position offered to him. the vesco used to receive large amounts of money from high tension power consumers such as the railways, k. g. hospital, the port administration, the andhra university etc., by cheques. but domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent no. 2. the respondent no. 2 was asked by the respondent no. i to maintain a private note book. in that book payments which used to be made by respondent no. 2 on the basis of slips issued by the respondent no. i used to be noted and the amount totalled up at the end of the day. this amount was posted in vesco's cash handover book as "'by safe" indicating that this amount was kept in the safe, though in fact it was not. on the basis of the entries in the handover book the final accounts were written up. the respondent no. i opened four personal accounts in different banks, including the imperial bank of india . when the respondent no. i had to issue a personal cheque on any of these banks he used to ask the second respondent to send an equivalent amount to the bank concerned for being credited to his account. these amounts also used to be noted in the private note book and entered. another thing which the respondent no. i initiated was opening a heading in the ledger called "advance purchase of materials." amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. it may be mentioned that subba raju used to visit visakhapatnam twice a month and check up the account books. at that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein had been sent to the bank for being deposited. apparently subba raju was fully satisfied with this and other explanations and, therefore, he appointed one c. s. raju, who was the manager of andhra cements to supervise over the affairs of vesco. apparently because of this a new method of misappropriation was adopted by the respondents by starting in the vesco account books, an account called "suspense account". a lakh of rupees passed through that account. amounts which were misappropriated used to find their way in this account. a new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made. subba raju was not satisfied with the nature of supervision exercised by c. s. raju over the affairs of vesco because he used to look only at the cash book entries of the days on which he paid visits to vesco's office, to which he used to go with previous intimation. besides that, c. s. raju's management of andhra cements had landed it into a loss of rs. 30, 000/-`. because of all these things he had c. s. raju replaced towards the end of 1951 by one subbaramayya, a retired finance officer from the madras electricity board both as a director of andhra cements and as a supervisor over the accounts of vesco. subbaramayya took his work seriously and called for information on a number of points from the respondent no. 1. he, however, was unable to obtain any information. in january, 1952 he therefore brought one s. g. krishna aiyar who had vast experience in the maintenance of accounts of electrical undertaking's having been chief accountant of the south madras electric supply corporation, to undertake an investigation and then to act as financial adviser. krishna aiyar after his appointment made close enquiry and submitted an interim report. that report showed that during the period 1948-49 rs. 33, 271-10-0 shown as paid to the andhra power system were in fact not paid. the respondent no. 1 on being asked to explain said that he would give his explanation to the managing director. the interim report showed that there was a shortage of about rs. 90, 000/- for this period. on february 12, 1952 the respondent no. i wrote to the managing director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of march, 1952. further scrutiny of the accounts was being carried out by krishna aiyar and in his subsequent report he pointed out that rs. 2, 38, 000/- which were shown as having been paid to the andhra power system had actually not been paid. in fact in april, 1952 the collector attached vesco properties for realising this amount. on april 30, 1952 the respondent no. 1, by selling some of his property, himself paid rs. 50, 000/- to the andhra power system towards the sum due to it from vesco and had promised to pay the balance shortly thereafter. he was given time for doing so but he failed to pay it. the directors of vesco thereafter authorised k. s. dutt, one of the directors to lodge a complaint with the police which he accordingly lodged on may 19, 1952. on the next day the police placed an armed guard around the office of the respondent no. i and seized a number of papers. as a result of investigation they found that there was a total misappropriation of rs. 3, 40, 000/-. on may 13, 1954 a chargesheet was filed against the two respondents as well as murti and the approver ramana. on september 13, 1954 ramana offered to make a full confession to the additional district magistrate (independent) who was empowered to grant pardon under s. 337 of the code of criminal procedure. he, however, directed ramana to make his confession before a submagistrate. the latter accordingly made a confession on november 15, 1954 and on november 17, 1954 the additional district magistrate granted him pardon and that is how he came to be examined as a witness in this case. the additional sessions judge convicted both the respondents, the respondent no. i in respect of each head of the offences with which he was charged and the respondent no. 2 in respect only of the offences of conspiracy and misappropriation. in the first place according to the high court, joint trial of two or more persons in respect of different offences committed by each of them is illegal and that here as they were charged with having committed offences under s. 120-b, s. 409, s. 477-a and s. 476/467, i.p.c. they could not be tried jointly. ARGUMENT the points which he urged are briefly these: (1) that there was a misjoinder of charges and persons in that the various provisions of s. 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. (2) the procedure adopted in the investigation and committal stages was irregular. (3) irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the evidence act. (4) that the court abused its powers under s.342, cr. p.c. while conducting the examination of the respondents. (5) the evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the sessions judge and must, therefore, be rejected. if the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. as many as 2, 000 documents were "dumped" by the prosecution in this case out of which 1600 documents were not sought to be proved by it. further, 64 documents were missing from the records when they came to the high court and that this has caused serious prejudice to the respondent. ISSUE the first question for consideration is whether there was a misjoinder of parties and of persons. ANALYSIS s. 120 b provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the code for the punishment of such conspiracy. the first charge is in respect of the conspiracy alleged to have been entered into by the two respondents, k. v. ramana, the approver, and others "known and unknown" to commit criminal breach of trust of the funds of vesco and, in order to screen its detection, to falsify the accounts of vesco and to use forged documents as genuine. on the face of it this is a valid charge. but certain objections have been taken to it with which the court will deal at the appropriate place. the second charge is for an offence of criminal breach of trust punishable under s. 409 and the accusation therein is that the two respondents along with ramana, misappropriated 69 items aggregating to a little over rs. 3, 20, 000/-. it is clear from the charge that some of the amounts were misappropriated between april, 1947 and march, 1950, some between april, 1947 and march, 1949, some between april, 1947 and march, 1951 and quite a large number between september, 1947 and march, 1950 and a still large number between april, 1951 and march, 1952. it is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. unless, therefore, the provisions of s. 239 are applicable it would follow that there was a misjoinder of charges. the third charge is that the two respondents, along with the approver ramana made false entries on seven different dates in the account books between september 19, 1947 and march 18, 1952 and thus committed an offence under s. 477-a, i.p.c. the fourth charge is that the two respondents, along with the approver ramana forged six documents on different dates between march 28, 1949 and november 12, 1951 and thus committed an offence under s. 471 read with s. 467, i.p.c. in coming to the conclusion that the provisions of various clauses of s. 239 cannot be applied cumulatively the high court has relied upon the decision in re: vankavalapati gopala rao 1956 air(andhra) 21 ). there the learned judges have held that these clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. each clause is an exception to the general rule enacted in s. 233, cr. p.c. if such a combination is permissible, all persons accused of offences described in cls. (a) to (g) can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in s. 233. s 236 is a special provision available in case of doubt and is neither subject to the limitations prescribed by s. 233 nor those of the other preceding provisions. now, if the respondent no. 1 were alone tried upon the second, third and the fourth charges the provisions of s. 235(1) could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack. similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction. here, however, the court a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. a conspiracy must be regarded as one transaction and, therefore, a single individual charged with it could be tried with the aid of s. 235(1) for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s.234(1). for, where all the acts are referable to the same conspiracy their connection with one another is obvious. the only provision in the code which permits the joint trial of more than one person is s. 239 and what the court to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. let us, therefore, examine closely the provisions of s. 239. on the other hand at the end of cl. (f) there is a conjunction 'and'. now, since s. 234(1) cannot be properly read overriding s. 235(1) there is no valid reason for construing it as overriding the provisions of s. 239 either. s, 239 must be read at least subject to ss. 234(1) and 235(1) on the ground that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. thus where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months, the number of offences for which they could be tried cannot exceed three. in this connection he relied upon the words "within the meaning of s. 224" occurring in cl. (c) of s. 239. these words clearly show that cl. (c) of s. 239 is subject to the provisions of s. 234. in the court’s opinion the words "within the meaning of s. 234" indicate that what was meant by the words offence of the same kind" "'persons accused of more offences than one of the same kind not exceeding three in number"or may have used the words" person accused of more than one offence of the same kind to the extent permissible under s. 234. therefore, even if the expression "'same transaction" alone had been used in s. 235(1) it would have meant a transaction consisting either of a single act or of a series of connected acts. the expression "same transaction" occurring in cls. (a), (c) and (d) of s. 239 as well as that occurring in s. 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. looking at the matter in that way, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236(1). the provisions of sub-s. (2) and (3) of s. 235 are enabling provisions and quite plainly can have no overriding effect. but it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under s. 239.s. 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236. bearing in mind the fact that the provisions in the "former part" of chapter xix are applicable to charges made with the aid of s. 239 only "so far as may be" it would not be right to construe s. 239 as being subject to the provisions of ss. 233 to 236. it was contended by mr. chari that the expression "former part" would apply to the first sub- division of chapter xix which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge. the court could not, however, give the expression such a restricted meaning. for, even in the absence of those words, the earlier provisions could not have been ignored. for, it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the court to construe a statute harmoniously. thus, while it is clear that the sections preceding s. 239 have no overriding effect on that section, , the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of s.239. indeed, the very expression 'so far as may be' emphasises the fact that while the earlier provisions have to be borne in mind by the court while applying s. 239 it is not those provisions but the latter which is to have an overriding effect. criminal conspiracy as defined in s. 120-a and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means. criminal conspiracy was, however, not an unknown thing before the amendment of the indian penal code in 1913. but what the amendment did was to make that conspiracy itself punishable. the idea was to prevent the commission of crimes by, so to , speak, nipping them in the bud. but it does not follow that where crimes have been committed the liability to punishment already incurred under s. 120-b by having entered into a criminal conspiracy is thereby wiped away. no doubt, as already stated, where offences for committing which a conspiracy was entered into have actually been committed it may not, in the particular circumstances of a case, be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. but that would be a matter ultimately within the discretion of the court before which the trial takes place. in so far as the fourth point is concerned, that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy. the prosecution be established by reference to s. 34 of the indian evidence act which reads thus as what it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. these entries are, however, not by themselves sufficient to charge any person with liability. therefore, when a sues b for a sum of money it is open to him to put his account books' in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against b. the entry though made by a in his own account books, and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by a to b. the entry by itself is of no help to a in his claim against b but it can be considered by the court along with the evidence of a for drawing the conclusion that the amount was paid by a to b. to this limited extent entries -in the account books are relevant and can be proved. s. 34 does not go beyond that. it says nothing about non-existence of entries in account books. the court, therefore, agree with the high court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. the decision in queen empress v. grees chunder banerjee ((1884) i. l. r. 10 cal 1024.), upon which reliance is placed by the high court in support of its view is also to that effect. similarly in ram prashad singh v. lakhpati koer ((1902) i. l. r. 30 cal 231, 247). lord robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in queen empress v. girish chander banerjee ( (1884) i.l.r. 10 c.l 1024. ). there is s. ii of the evidence act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. some of the facts in issue in this case are whether payments of certain sums of money were made to crompton engineering co., and other firms or authorities. absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under s. 11. the fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. for the purpose of showing that no amounts were received by the firms, their account books would thus be as relevant as the vesco account books for the purpose of showing the contrary. there is s. 5 of the evidence act which reads thus as it is the case of the prosecution that the alleged payments were never made by vesco to the various firms. the offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of session . as regards the offence under s. 477-a, it is one of those sections which are specifically enumerated in s. 337 (1) and the argument advanced before the court and which the court rejected would not even be available with regard to the pardon in respect of that offence. it is true that the respondent no. i alone was convicted by the additional sessions judge of this offence and the offence under s. 467 read with s. 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. the decision in sarwan singh v. the state of punjab ([1957] b. c. r. 953.), on which reliance has been placed by the high court has been explained by this court in the case of maj. e. g. barsay v. the state of bombay . this court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of, the approver the evidence led to corroborate him in material particulars would be relevant for consideration. the high court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. then again it would not be sufficient for the high court to deal with the evidence in a general way. it would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not. the prosecution would be well, advised if, instead of placing the evidence on each and every one of those large number of charges against the respondents, it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges, this would save public time and also serve the purpose of the prosecution. the court set aside the acquittal of the respondents and remit the appeal to the high court for decision on merits in the light of our observations. STATUTE form of charges and joinder of charges. ss. 221 to 232 are comprised under the first sub-head and ss. 233 to 240 in the second. ss. 221 to 223 deal with the framing and content of charge. s. 224 deals with the interpretation of the language of the charge and s. 225 with the effect of errors in the charge. ss. 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be framed. s. 232 deals with the power of the appellate court or the high court when it discovers that there is material error in the charge. s. 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. but it also provides that this will be subject to the exceptions contained in ss. 234, 235, 236 and 239. the first three provisions relate to the framing of charges against a single accused person. s. 234 (1) deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and s. 231 (2) what is meant by the expression 'offences of' the same kind'. this provision lifts partially the ban on the trial of a person for more than one offence at the same trial. s. 235(1), however, goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. thus under this provision if the connection between the various offences is established the limitations placed by s. 234(1) both as regards the number and the period during which the offences are alleged to have been committed will not apply. sub-s. (2) of s. 235 deals with a case where an offence falls within two definitions and sub-s.(3) deals with a case in which a number of acts are alleged against an accused person, different combinations of which may constitute different offences. s. 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and further provides that any number of such charges may be tried together. it also permits that charges could be framed against an accused person in the alternative if the court thinks fit. s. 239 cls. (a) and (b)- cl. (a) says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. this first thing to be noticed is that s. 239 does not read as if its various clauses can be applied only alternatively. cl. (b) says that persons accused of an offence and persons accused of abetment, or, of an attempt to commit such offence may also be charged and tried together. the opening words of the section show that it is an enabling provision and, therefore, the court has a discretion to avail itself cumulatively of two or more clauses. the concluding portion of s. 239 shows that the provisions contained in the former part of chapter xix shall, as far as may be, apply to the charges framed with the aid of s. 239. does this mean that the provisions of s. 233, 234, 235, and 236 must also be complied with? obviously, s. 233 does not override the provisions of s. 239. s. 234 cannot also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they cannot be tried also for -offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. it could not have been the intention of the legislature to create such a situation. again, as already stated, s. 234(1) does not override the provisions of s. 235(1) which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. unless the court read s. 234(1) as not enacting a fetter on s. 235(1), it may not be possible to give full effect to the latter. it is under these provisions that the account books of the firms must be held to be relevant. what value to attach to them is another matter and would be for the court of fact to consider.

three civil appeals stemming from three revision petitions to the high court of orissa under the orissa estates abolition act 1951 orissa act i of 1952 for short the act have reached this court thanks to special leave granted to the appellant who is common in all the cases. the high court after deciding various issues remanded the cases to the compensation officer under the act after over ruling most of the contentions pressed before it by the appellant. shri achutananda purohit appellant was the intermediary in respect of vast forests and other lands comprised in the estate of jujumura in the district of sambalpur. this estate vested in the state on april 1 1960 by force of the act and the crucial question agitated before us consequentially turns on the quantum of compensation awardable under chapter v of the act. the appellant has received around rs 300000 but much more according to him is due and this controversy can be settled by examining his specific points. shri purohit appellant is an advocate by profession and is 83 years old. he has argued in person and with passion. we have listened with patience to all his submissions good bad and indifferent. if we may anticipate ourselves none of the nine submissions has appealed to us save to the extent the high court has upheld. even so a minimal narration of the facts and a brief consideration of each argument is necessary and we proceed to do so. while his arguments did not impress us we were touched by his concluding words that he had been born and had grown in an adivasi village in the only brahmin family and in his evening years of life proposed to give a substantial part of the compensation the state would give him for adivasi welfare. although he waxed sentimentally on this note he did not convince us on his contentions. with these prefatory observations we proceed to formulate the many points urged and give our findings and reasons one after the other. we are directly concerned with the issue of compensation which is dealt with as earlier stated in chapter v of the act. the compensation officer is charged with fixing the quantum in the prescribed manner. a compensation assessment roll containing the gross asset and net income of each estate together with the compensation payable in respect of such estate has to be prepared by him. of course when there is joint ownership section 24 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein. section 26 has great relevance as it lays down the method of arriving at the gross asset and section 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate. section 28 states how the amount of compensation is to be determined and the methodology of payment. there are a few other s s in chapter vi which deal with payment of compensation. the act also provides for appeal second appeal and revision the last being to the high court and the earlier ones being to the collector and a board constituted under section 22. the rule making power is vested in the government under section 47 and there is a routine removal of difficulties clause contained in section 50. these furnish in bare outline the provisions with which we are directly concerned. against the background of law just projected we may set out shri purohit 's points which if we may say so are substantially the same as have been argued by him in revision before the high court with partial success. for convenience of reference we may extract the statement by the high court of the contentions urged before it and repeated before us by the appellant. the provisions of section 373 read with section 262. b v of the act make it clear that the date of vesting is the last date by which the calculation of compensation should have been made. as admittedly compensation had not been calculated by the date of vesting the compensation officer lost his statutory jurisdiction to do so. it is this court which by its order dated 10 4 1969 in civil revisions 201 202 and 203 of 1968 conferred new jurisdiction on the compensation officer to deal freshly with the case and therefore notwithstanding anything contained in the act the compensation has to be calculated according to the directions given by the court 2 the court was fully aware of the statutory provision in section 262. b v of the act but in spite of it the direction was that the divisional forest officer should make the appraisement. there was no direction that this report of the d f o should be further subject to the approval of the chief conservator of forests. the calculation made by the chief conservator of forests therefore has no statutory force but could be just a piece of evidence. but as the court directed that no further evidence on behalf of the state should be received ext. a1 is inadmissible in evidence. 3 assuming that in spite of the directions of the court the compensation offi cer is entitled to follow the procedure laid down in section 262bv the expression subject to the approval of the chief conservator of forests does not refer to the appraisement made by the d f o but refers to his appointment. 4 assuming that section 262 b v would have full force what it contemplates is that the appraisement must be made by the d f o and it is subject to the approval by the chief conservator of forests. but what has happened here is that the chief conservator himself made the appraisement without referring to the appraisement made by the d f o and as such the appraisement made by the chief conservator is invalid. the report of the chief conservator of forests is also invalid because of the fact that the appraisement is made only with reference to the area of the disputed forests without taking into consideration the density of growth therein. 6 unlike in case of fisheries etc. where the actual income is to be included in the gross assets in the case of forests the assumed income and not the actual income is to be included. during the agricultural year immediately preceding the abolition the petitioners had not actually derived any income from the forests and as such they were under no obligation to pay any income tax on such income. therefore deduction of income tax from the gross assets is illegal and unwarranted. the slab system of calculation of compensation in the act providing smaller multiples for estates yielding larger income is unconstitutional. 8 compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than its purchasing power on the date of vesting and 9 interest should be calculated at not less than 12 per annum from the date of vesting till payment. the meat of the matter the primary question agitated in the appeal lopping off the fringe issues of lesser import consists in the statutory methodology and functionaries prescribed by the act for quantifying the compensation and the compliance therewith by the statutory machinery in the case of the appellant. but before examining this essential issue we may dispose of the minor points pressed so that the deck may be cleared for dealing with what deserves to be dealt with. point No 9 in the catalogue already given relates to the claim for 12 interest on the amount of compensation as against the statutory rate of 2 12. the policy of the law of agrarian reform postulates the extinguishment of ancient privileges and cornering of land resources and the socioeconomic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in article 31a and article 31b of the constitution. a similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out. we can not import the notion of prevailing bank rates in such situations. the dynamic rule of law with a social mission makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests on the one hand and the ordinary commercial transactions or regulation of rights untinged by social transformation urges on the other. this gives rationality to the seeming disparity. holmes once commented it is revolting to have no better reason for a rule of law than that. so it was laid down in the time of henry iv. here there is good reason to depart from the old rule of full compensation and it perhaps legitimates the reduced rate of recompense. moreover the high court has rightly pointed out that the validity of section 373 of the act which fixes a small rate of interest on the compensation amount has been upheld by the supreme court in gajapati narayan 's case. point No 8 has only to be stated to be rejected. the contention is that on the date of vesting which was well over two decades ago the purchasing power of the rupee was much higher than its present value. it is more or less a world phenomenon that the erosi on in value of the unit of currency has been taking place but this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute. for the purposes of the law the rupee of long ago is the same as the rupee of today although for the purposes of the market place and cost of living the housewife 's answer may be different. law is sometimes blind. the next point in the reverse order is equally unsubstantial and may be disposed of right away. the appellant challenges the slab system of compensation provided in the act which awards smaller multiples for estates yielding larger incomes on the score of violation of the fundamental rights under the constitution. the short answer is that article 313 read with article 312 bars any challenge to the amount of compensation on acquisition by the state subject to compliance with the prescriptions in the said sub articles on the ground that the amount so fixed or determined is not adequate. presidential assent has been accorded to this state act and so the ban operates. moreover article 31a repels the applicability of articles 14 19 and 31 to the acquisition by the state of any estate or of any rights therein etc. this provision directly demolishes the contention of the appellant. point No 6 in the list of contentions earlier reproduced is also bereft of force and we may make short shrift of it. the argument is that for certain reasons the appellant could not derive and actual income from the forests taken over by the state from him and therefore there was no income tax payable on any agricultural income from these forests. the contention is that therefore in arriving at the next income the deduction of income tax is not permissible. here again the flaw in the submission consists in mis reading section 27 of the act which expressly states that the net income from an estate shall be computed by deducting from the gross assets of such estate any sum which was payable by the intermediary as income tax in respect of any income derived from such estate for the previous agricultural year. no income therefore no income tax and therefore no deduction is the syllogism of shri purohit. he forgets that in the case of forests it is the assumed income and not the actual income that forms the basis of calculation of compensation. indeed if the actual income were to be the foundation for computation of compensation on the premise that not actual income has accrued the compensation might be zero. on the other hand statutory compensation is provided for on the formula of assumed income in the previous year. similarly an assumed income tax also has to be worked out and deducted. if a notional income on the assumed basis can be used for fixing compensation a notional income tax can be calculated and deducted. the confusion that vitiates the argument is prompted by a circular letter of government regarding non deductibility of income tax due to the state from the amount of compensation lying to the credit of estate holders. we have examined the circular letter and are satisfied that it has no relevance to a situation like the present and it deals with a totally different matter. in short section 27 properly construed can not lend itself to the meaning imputed to it by the appellant. the serious question that survives for consideration is covered by the remaining points which more or less overlap. the statutory scheme of compensation for forest lands consists of machinery for assessment of the net income which is multiplied on a sliding scale and the method of challenge to the determination by the aggrieved owner of state. section 262. b v is relevant here and may be set out 262. gross asset when used with reference to an estate means the aggregate of the rents including all cesses which were payable in respect of the estate for the previous agricultural year b by the raiyats or any other persons cultivating the land other than the land settled with the intermediary or intermediaries under sub s 1 of section 7 and includes. v gross income from forests calculated on the basis of the appraisement made of annual yield of the forests on the date of vesting by a forest officer subject to the approval of the chief conservator of forests such forest officer being not below the rank of a divisional forest officer to be appointed in this behalf by the state government. the expression forest officer used here has been explained in section 26. so the first step is for the government to appoint forest officers from out of d f os in the forest department for the purposes of the act. those officers ascertain the income from the forest concerned and the figure so fixed is subject to the approval of the c c f chief conservator of forests presumably the top expert in the department. the power to approve implies the power to disapprove or modify but not to report or arrive at an income de hors the forest officer 's report altogether. the section is clear that the gross income from forests must be calculated on the basis of appraisal of the annual yield on the date of vesting firstly by a forest officer and secondly by the chief conservator of forests screening it and approving it. indeed preliminary to the appraisal operation the intermediary receives a notice in form 'd rule 13 and he is expected to furnish a return of the relevant particulars and supporting information to enable correct appraisement. in the present case the appellant did submit the 'd return to the compensation officer and adduced some evidence to substantiate it. the compensation officer passed an order adverse to the appellant where upon he filed an appeal to the collector which was rejected. a second appeal followed before the board of revenue which was dismissed. later revision petition were filed before the high court and g k misra j set aside the order disallowing the inclusion of the income from forests for ascertainment of compensation and directed a remand to the compensation officer. the said order the relevant portion of which we are concerned runs thus he would immediately call upon the divisional forest officer to make appraisement within three months from the receipt of the record. the appraisement can be scientifically done by looking to the age of the trees as they stand now. it is open to the petitioners to give evidence that after the date of vesting many of the trees and forest produce have been removed. besides the evidence already on record would be taken into consideration. the divisional forest officer who would make the appraisement will be examined as a witness for the compensation officer and would be subjected to cross examination. no other evidence would be permissible as the state has not chosen to give any other evidence. under rule 131 c of the orissa estates abolition rules 1952 the compensation officer may rely upon such other materials as may otherwise be ascertained by him. but in such a case the materials must be brought to the notice of the petitioners who would be entitled to cross examine the witnesses connected therewith and may give rebutting evidence. the compensation case is to be disposed of by the compensation officer within six months from today 104 1969 with intimation to this court. strictly speaking the statutory requirement is for initial appraisal of the annual income by the forest officer. the use of the expression divisional forest officers is erroneous although forest officers are appointed from among divisional forest officers. equally clearly a slight error has crept into the judge 's order because he does not make any reference specifically to the statutory requirement of approval of the chief conservator of forests of the appraisement made by the forest officer. however what followed is interesting though erroneous. the district forest officer who incidentally happens to be a forest officer under the act having been appointed as required thereunder made his appraisal of the annual income and submitted to the chief conservator who altered the annual yield and reduced it substantially. but he pointed out that the forest officer had omitted to include the income from kendu leaves and added that sum to the income from forests. even so the total figure was less than what the divisional forest officer had recommended. the compensation officer accepted the report of the chief conservator and made the statutory calculation on that date. both the state and the appellant filed appeals to the collector which were dismissed. a second appeal was filed by the appellant before the board of revenue without success. then followed three revision petitions to the high court which led to the order of remand now attacked before us in the present appeals. from this narrative what follows is that the chief conservator had substituted his appraisement which was accepted by the statutory tribunal. indeed there was a fundamental difference in the basis adopted by the forest officer and the chief conservator in the matter of assessing the income of the forests in question. we need not go into this detail except for the purpose of noticing that what the chief conservator did was not to approve wholly or in a modified form what the forest officer did but to make his own appraisal independently and without reference to the report of the statutory functionary viz the forest officer. this was wrong and contrary to section 26 as was contended by the appellant and in a way accepted by the high court. we are in agreement with the course adopted by the high court and the reasoning which has prevailed with it. the direction given by the learned judge in the remand order is correct although it may require a little clarification. having heard the appellant at some length we see no flaw in the high court 's order on this aspect of the matter. it is astonishing that anyone should urge as the appellant did that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done the compensation officer had become functus officio in awarding compensation. before the date of vesting the state never can nor does fix the compensation through the compensation officer in any of the agrarian reform laws and these compensation operations are post statutory exercises. therefore there is no substance in the functus officio argument. if the officer had no jurisdiction the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction a consequence the appellant never wants. technicality can be frightened away by technicality. nor is it right to contend as the appellant did that the compensation officer 's jurisdiction was created by the order of remand by the high court. no it was created by the statute and canalised by the order of remand. it follows that after the present second remand the re appraisal of the annual net income can not be done solely by the forest officer without securing the approval of the chief conservator. nor can the compensation officer by pass the chief conservator on the misunderstood strength of the high court 's first order of remand. the true legal drill is. and this holds good after the second remand order that the forest officer will do the appraisement of the annual income forward his report to the chief conservator of forests who will take the said report into consideration and if necessary make modifications therein or approve it with such changes as he deems fit. certainly the chief conservator can not be ignored by the compensation officer nor can the chief conservator ignore the assessment made by the forest officer and go through an independent exercise. the integrated process has already been explained by us and will be followed in the proceedings to ensue on remand. we may make it clear that now that a forest officer has made an appraisement the chief conservator of forests will apply his mind to it and approve it as a whole or with such modifications as he thinks necessary and forward it to the compensation officer. this will among other things save time. thereafter the appropriate statutory course will follow. substantially this is what has been done by the learned judge when allowing the revisions and remitting the case back to the compensation officer. the take over of the forests of the appellant was effected as early as 1960 and 16 years have passed without the intermediary being out of the litigative woods. the high court has stated that a large part of the delay has been due to laches committed from time to time by the officers who have been charged with the duty to calculate the compensation. it is again due to mistakes committed by the authorities concerned that the matter is being remitted back to the compensation officer for disposal. the force of these observations constrains us to direct that the proceedings before the compensation officer shall be completed within six months from today. in this context it is perhaps not irrelevant to remember that the appellant a freedom fighter is an 83 year old man and at this stage of his life the state should show commisseration not merely in quickly disposing of the proceedings but also in not being cantankerous in awarding and disbursing the balance compensation. with these directions and observations we affirm the orders under appeal but while dismissing the appeals direct the parties to bear their costs in this court.

FACTS three civil appeals, stemming from three revision petitions to the high court of orissa under the orissa estates abolition act, 1951. the high court, after deciding various issues, remanded the cases to the compensation officer under the act, after over-ruling most of the contentions pressed before it by the appellant. shri achutananda purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of jujumura in the district of sambalpur. the appellant has received around rs. 3,00,000/- but much more, according to him, is due. ARGUMENT the argument is that for certain reasons the appellant could not derive actual income from the forests taken over by the state from him and therefore there was no income-tax payable on any agricultural income from these forests. the contention is that therefore in arriving at the next income the deduction of income-tax is not permissible. ISSUE the estate vested in the state on april 1, 1960 by force of the act and the crucial question consequentially turns on the quantum of compensation awardable under chapter v of the orissa estates abolition act, 1951. the meat of the matter, the primary question agitated in the appeal, lopping off the fringe issues of lesser import, consists in the statutory methodology and functionaries prescribed by the act for quantifying the compensation and the compliance therewith by the statutory machinery in the case of the appellant. ANALYSIS the compensation officer is charged with fixing the quantum in the prescribed manner. a compensation assessment roll containing the gross asset and net income of each estate, together with the compensation payable in respect of such estate, has to be prepared by him. the dynamic rule of law, with a social mission, makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests, on the one hand, and the ordinary commercial transactions or regulation of rights untinged by social transformation urges, on the other. this gives rationality to the seeming disparity. moreover, the high court has rightly pointed out that the validity of s. 37(3) of the act which fixes a small rate of interest on the compensation amount has been upheld by the supreme court in gajapati narayan's case. for the purposes of the law, the rupee of long ago is the same as the rupee of today, although for the purposes of the market place and cost-of living, the housewife's answer may be different. art. 31(3) read with art. 31(2) bars any challenge to the amount of compensation on acquisition by the state subject to compliance with the prescriptions in the said sub-articles, on the ground that the amount so fixed or determined is not adequate. presidential assent has been accorded to this state act and so the ban operates. moreover, art. 31a repels the applicability of arts. 14, 19 and 31 to the acquisition by the state of any estate or of any rights therein etc. in the case of forests it is the assumed income and not the actual income that forms the basis of calculation of compensation. on the other hand, statutory compensation is provided for on the formula of assumed income in the previous year. similarly, an assumed income- tax also has to be worked out and deducted. the statutory scheme of compensation for forest lands consists of machinery for assessment of the net income which is multiplied on a sliding scale and the method of challenge to the determination by the aggrieved owner of state. so the first step is for the government to appoint forest officers from out of d.f.os. in the forest department, for the purposes of the act. those officers ascertain the income from the forest concerned and the figure so fixed is subject to the approval of the c.c.f. (chief conservator of forests). the power to approve implies the power to disapprove or modify but not to report or arrive at an income de hors the forest officer's report altogether. indeed, there was a fundamental difference in the basis adopted by the forest officer and the chief conservator in the matter of assessing the income of the forests in question. this was wrong and contrary to s. 26. it is astonishing that anyone should urge, as the appellant did, that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done, the compensation officer had become functus officio in awarding compensation. in this context, it is perhaps not irrelevant to remember that the appellant, a freedom-fighter, is an 83-year-old man and, at this stage of his life, the state should show ommiseration not merely in quickly disposing of the proceedings but also in not being cantankerous in awarding and disbursing the balance compensation. STATUTE s. 24 of the orissa estates abolition act, 1951 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein. s. 26 has great relevance as it lays down the method of arriving at the gross asset and s. 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate. s. 28 states how the amount of compensation is to be determined and the methodology of payment. there are a few other s.s in chapter vi which deal with payment of compensation. the act also provides for appeal, second appeal and revision, the last being to the high court and the earlier ones being to the collector and a board constituted under s. 22. the rule-making power is vested in the government under s. 47 and there is a routine 'removal of difficulties' clause contained in s. 50. the policy of the law of agrarian reform postulates the extinguishment of ancient privileges and cornering of land resources, and the socioeconomic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in art. 31a and art. 31b of the constitution.

FACTS three civil appeals, stemming from three revision petitions to the high court of orissa under the orissa estates abolition act, 1951. the high court, after deciding various issues, remanded the cases to the compensation officer under the act, after over-ruling most of the contentions pressed before it by the appellant. shri achutananda purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of jujumura in the district of sambalpur. the appellant has received around rs. 3,00,000/- but much more, according to him, is due. ARGUMENT for certain reasons the appellant could not derive actual income from the forests taken over by the state from him and therefore there was no income-tax payable on any agricultural income from these forests. in arriving at the next income the deduction of income-tax is not permissible. ISSUE the estate vested in the state on april 1, 1960 by force of the act and the crucial question consequentially turns on the quantum of compensation awardable under chapter v of the orissa estates abolition act, 1951. the meat of the matter, the primary question agitated in the appeal, lopping off the fringe issues of lesser import, consists in the statutory methodology and functionaries prescribed by the act for quantifying the compensation and the compliance therewith by the statutory machinery in the case of the appellant. ANALYSIS the compensation officer is charged with fixing the quantum in the prescribed manner. a compensation assessment roll containing the gross asset and net income of each estate, together with the compensation payable in respect of such estate, has to be prepared by him. the dynamic rule of law, with a social mission, makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests, on the one hand, and the ordinary commercial transactions or regulation of rights untinged by social transformation urges, on the other. this gives rationality to the seeming disparity. moreover, the high court has rightly pointed out that the validity of s. 37(3) of the act which fixes a small rate of interest on the compensation amount has been upheld by the supreme court in gajapati narayan's case. art. 31(3) read with art. 31(2) bars any challenge to the amount of compensation on acquisition by the state subject to compliance with the prescriptions in the said sub-articles, on the ground that the amount so fixed or determined is not adequate. presidential assent has been accorded to this state act and so the ban operates. moreover, art. 31a repels the applicability of arts. 14, 19 and 31 to the acquisition by the state of any estate or of any rights therein etc. in the case of forests it is the assumed income and not the actual income that forms the basis of calculation of compensation. on the other hand, statutory compensation is provided for on the formula of assumed income in the previous year. similarly, an assumed income- tax also has to be worked out and deducted. the statutory scheme of compensation for forest lands consists of machinery for assessment of the net income which is multiplied on a sliding scale and the method of challenge to the determination by the aggrieved owner of state. so the first step is for the government to appoint forest officers from out of d.f.os. in the forest department, for the purposes of the act. those officers ascertain the income from the forest concerned and the figure so fixed is subject to the approval of the c.c.f. (chief conservator of forests). the power to approve implies the power to disapprove or modify but not to report or arrive at an income de hors the forest officer's report altogether. indeed, there was a fundamental difference in the basis adopted by the forest officer and the chief conservator in the matter of assessing the income of the forests in question. it is astonishing that anyone should urge, as the appellant did, that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done, the compensation officer had become functus officio in awarding compensation. in this context, it is perhaps not irrelevant to remember that the appellant, a freedom-fighter, is an 83-year-old man and, at this stage of his life, the state should show ommiseration not merely in quickly disposing of the proceedings but also in not being cantankerous in awarding and disbursing the balance compensation. STATUTE s. 24 of the orissa estates abolition act, 1951 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein. s. 26 of the orissa estates abolition act, 1951 has great relevance as it lays down the method of arriving at the gross asset and s. 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate. s. 28 of the orissa estates abolition act, 1951 states how the amount of compensation is to be determined and the methodology of payment. the act also provides for appeal, second appeal and revision, the last being to the high court and the earlier ones being to the collector and a board constituted under s. 22 of the orissa estates abolition act, 1951. the rule-making power is vested in the government under s. 47 of the orissa estates abolition act, 1951 and there is a routine 'removal of difficulties' clause contained in s. of the orissa estates abolition act, 1951. the policy of the law of agrarian reform postulates the extinguishment of ancient privileges and cornering of land resources, and the socioeconomic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in art. 31a and art. 31b of the constitution.

in our view although the high court had set aside the concurrent findings of fact arrived at by the tribunals below under the karnataka land reforms. act1974 in shortthe act in the exercise of its revisional jurisdiction under section 121a of the act even then this is not a fit case where this court in the exercise of its power u art 136 of the constitution would interfere with such an order of the high court. the appellants in this appeal claiming to be the tenants of agricultural land bearing survey no 1251measuring 3 acres 11 gunthas. hereinafter called as the scheduled land situated in lingabahalli village madhugiri taluk in the state of karnataka filed form no 7 before the land tribunal praying for a declaration that they had acquired occupancy rights in respect of the scheduled land. they alleged that they were cultivating the scheduled land from 1968 till the notified date under the act on wara basis giving 13rd of the share in the foodgrains to respondent no 4 accordingly the appellants prayed for an order of occupancy right in respect of the scheduled land alleging that they and their father were cultivating the scheduled land as occupancy. right holders relying inter alia on the entries under the rtc record. the case of the appellants as made out was disputed by the respondent no 4 the case of respondent no 4 was that the scheduled land was mortgaged to the 3rd respondent rajashankar in the year 1968 and after the expiry of the said mortgage the mortgagee was liable to deliver possession of the same. the case of tenancy as made out by the appellants or their father was denied. it was alleged by the respondent no 4 that since the respondent no 3 was a film actor and had settled in madras now chennaiwith the consent of the respondent no 3the scheduled land was given to the father of the appellants and the father of the appellants was cultivating the same from the year 1968 but not as a tenant. accordingly they prayed for rejection of the application filed by the father of the appellants claiming occupancy rights under the act. initially the land tribunal allowed the application of the father of the appellants and feeling aggrieved a writ petition was filed against the said order. the high court had set aside the order of the land tribunal and remanded the case back to the tribunal for a fresh decision. the land tribunal after remand relying on the entries in the rtc record and some other materials on record granted occupancy rights in favour of the appellants. feeling aggrieved the respondent no 4 filed an appeal before the appellate authority which was also dismissed. a revision petition thereafter was moved before the high court and the high court by the impugned judgment had set aside the concurrent findings of fact and rejected the application filed by the father since deceased of the appellants holding inter alia that the appellants or their father had failed to prove the tenancy in respect of the scheduled land. a special leave petition was filed against the judgment of the high court setting aside the concurrent orders allowing the application in respect of which leave has already been granted. we have heard mr raju learned counsel appearing on behalf of the appellants and mr s n bhat learned counsel appearing on behalf of the respondents. we have examined the impugned judgment of the high court as well as the orders of the tribunals below. it is true that the high court while exercising its revisional power under section 121a of the act had set aside the concurrent findings of fact of the land tribunal as well as of the appellate authority even then examining the findings of the high court and considering the power conferred on it in the revisional jurisdiction under section 121a of the act we do not find any reason to interfere with the impugned order of the high court in the exercise of our power u art 136 of the constitution. while setting aside the findings of the tribunal the high court at paragraph 7 of the impugned judgment made the following findings it is an undisputed fact that the revision petitioner has mortgaged the land in dispute in favour of the 5th respondent rajashankar in the year 1968 and after the expiry of the mortgage period since the 5th respondent failed to deliver back the possession of the land in dispute to him he filed the suit for redemption and obtained a decree for redemption. when the matter stood thus the father of the respondent nos 3 and 4 gondappa who is the uncle of the 5th respondent rajashankar filed form no 7 before the land tribunal claiming occupancy rights in respect of the land in dispute contending that he is the tenant of the said land under the 5th respondent from the year 1968i e subsequent to the date of mortgage. to prove this fact he relied upon the entries in the r t c extract for the years 1968 to 1974 wherein his name is shown as the person in cultivation of the land in dispute. but it is significant to note that the nature of cultivation of the land is not shown as that of a tenant in the said r t c extracts. in one year the nature of cultivation is described as swanthaand in the years the column is left blank. thus the r t c extracts produced by him do not support his contention that he was cultivating the land in dispute as a tenant. he has not produced any geni receipts or any lease agreement to show that the 5th respondent has leased out the land in dispute in his favour on crop share basis and that he paid the geni to the 5th respondent. thus he has no documentary evidence in respect of his claim that he came in possession of the land in dispute as a tenant under the 5th respondent and that he was cultivating the land in dispute as a tenant. it is further significant to note that in the evidence given by the respondent no 3 before the land tribunal he claimed that his father has taken the land in dispute on lease in the year 1962from the father of the petitioners gundu rao. even in respect of the said claim he failed to produce any documentary evidence evidencing the said lease of land in dispute from gundu rao. on the other hand in form no 7 filed by gondappa the father of the respondents 3 and 4he alleged that he was the tenant under the 5th respondent in respect of the land in dispute from the year 1968. thus there is no consistent stand regarding the year of commencement of tenancy or under whom gondappa the father of the respondents 3 and 4 became the tenant. so the only question which arises for consideration is whether the said cultivation of the land in dispute by the father of the respondents 3 and 4 during the years 1968 to 1974 can be presumed to be that of a tenant under the provisions of s 4 of the karnataka land reforms act. s 4 of the act makes it clear that a member of the owner 's family can not be considered as a deemed tenant even if he is lawfully cultivating the land belonging to owner. in the present case since the father of the respondents 3 and 4is the uncle of the respondent no 5it can not be said that he is not a member of the family of the respondent no 5. though there is no evidence on record to show that there are any joint family properties belonging to the joint family of respondent no 5 and his uncle there is nothing on record to show that they are not living as members of the joint family. so it is not possible to presume that the father of the respondent nos 3 and 4 gondappa who is the uncle of respondent no 5 was not the member of the family of the mortgagee respondent no 5. again the high court while setting aside the findings of fact also made the following findings but in the instant case since the respondents 3 and 4 failed to produce any evidence to show that their father was cultivating the land in dispute as a tenant under the 5th respondent mortgagee and even when the entries in the r t c extract produced do not support the claim of tenancy set up by the father of the respondents 3 and 4the question of drawing presumption of deemed tenancy in his favour under s 4 of the act does not arise. the father of the respondents 3 and 4being the uncle of respondent no 5 mortgagee it is also quite possible that he might have been allowed to cultivate the land in dispute under the personal supervision of respondent no 5 by assisting him in cultivation of the said land. in the present case also the respondents 3 and 4 failed to prove that their father was cultivating the land in dispute from the year 1968 as a tenant under the respondent no 5 and that after the death of their father they continued as tenants in respect of the land in dispute. it is also significant to note that the respondent no 5who was alive when the enquiry was pending before the land tribunal has not given evidence in favour of the respondents 3 and 4 stating that he has leased out the land in dispute in favour of the respondents 3 and 4 except the interested testimony of respondents 3 and 4there is nothing else on record to show that their father was inducted as a tenant to cultivate the land in dispute by the 5th respondent after the land is dispute was taken on mortgage by him. so it is not possible to presume that the father of the respondents 3 and 4 was inducted as a tenant by the mortgagee the 5th respondent in respect of the land in dispute. since the respondents 3 and 4 failed to produce any documentary evidence to show that their father was put in possession of the land in dispute by the 5th respondent mortgagee as a tenant and that they are continuing as tenants in respect of the said land after the death of their father i find that they are not entitled to grant of occupational rights. the earlier decision of this court reported in ilr 1996 kar page 2340 that when a person fails to prove that he is cultivating the land as tenant he can not be granted occupational right notwithstanding the fact that he might be in possession of the land and cultivating the same is applicable to the facts of the present case on all fours. from a careful examination of the findings given by the high court as quoted hereinabove in upsetting the concurrent findings of fact arrived at by the tribunals below we are not in a position to hold that the high court was not justified in setting aside the concurrent orders of the tribunals below in the exercise of its revisional power under section 121a of the act. the power conferred on the high court to revise the orders of the tribunals below has been provided in section 121a of the act which runs as under the high court may at any time call for the records of any order or proceeding recorded by the appellate authority under this act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceeding and may pass such order with respect thereto as it thinks fit. from a plain reading of section 121a of the act under which revisional jurisdiction can be exercised it would be clear that the high court while exercising such power is entitled to re appreciate the evidence when it finds that the conclusion arrived at by the appellate authority runs contrary to the materials on record and when it finds that there is no evidence to support the conclusion of the appellate authority or when it finds that the reasons given by the appellate authority are absolutely perverse and can not be supported by the evidence on record. it would also be clear from a plain reading of section 121a of the act that the high court is also entitled to interfere with the orders of the tribunals below when the material evidence on record was ignored or a finding was such that no court would come to such conclusion or that the decision of the tribunals below was manifestly unjust. we have carefully examined the provisions under section 121a of the act which is the revisional power under the act and also the provisions u s 115 of the code of civil procedure for short the code so far as s 115 of the code is concerned it has been made clear that it is only in case of a jurisdictional error or when the courts below had acted with material irregularity in the exercise of their jurisdiction that the question of interfering with such an order can arise otherwise the high court is not entitled to interfere with any other order which does not satisfy the conditions laid down for interference u s 115 of the code. on the other hand in our view under section 121a of the act it would be open to the high court to interfere with the orders of the tribunals below as the high court is empowered to look into the legality of the order or regularity of the proceedings although in the exercise of revisional jurisdiction u s 115 of the code the high court is not entitled to look into the legality of the order or the regularity of the proceedings but only entitled to interfere with the orders of the tribunals or the courts below when it finds that they have a exercised a jurisdiction not vested in them by law or b failed to exercise a jurisdiction so vested or c acted in the exercise of their jurisdiction illegally or with material irregularity. reading the aforesaid provisions viz. section 121a of the act and s 115 of the code we have no hesitation in our mind to hold that the revisional power exercised by the high court under section 121a of the act is wider than the one exercised by the high court in its revisional jurisdiction u s 115 of the code. as noted herein earlier since section 121a of the act clearly empowers the high court to look into the legality of the orders impugned therefore it would be open to the high court to consider the material evidence on record when it finds that such evidence was not at all considered by the tribunals below or when the conclusion arrived at by the tribunals below run contrary to the materials on record or when it finds that there is no evidence to support the conclusion of the tribunals below or that the reasons given by the tribunals below are absolutely perverse or a finding was such that no court would come to such a conclusion or that the decisions of the tribunals below were manifestly unjust. therefore under section 121a of the act in the presence of any of the abovementioned circumstances the high court is empowered to look into the legality of the orders impugned in deciding the question whether the appellants could be held to be the tenants under the respondent nos 3 or 4. keeping the aforesaid principles in mind as to when the high court would be justified in the exercise of its power under section 121a of the act to examine the legality of the orders of the tribunals below in an appropriate case let us now examine the findings of the high court while setting aside the concurrent findings of fact of the tribunals below. in our view on a careful examination of the findings of the high court which were based on consideration of the material evidence on record it is difficult for us to hold that the high court was not justified in setting aside the concurrent findings of fact of the tribunals below in the exercise of its jurisdiction under section 121a of the act. we have already noted the findings made by the high court in the impugned judgment on the question whether the appellants could be held to be the tenants on the evidence and materials on record. while doing so in our view the high court was justified in coming to the conclusion that the evidence and material on record would clearly establish that the appellants were not able to prove that they were the tenants in respect of the scheduled land under the respondents. one of the main criteria for deciding whether a particular person is a tenant or not is to see whether there was payment of rent either in cash or in kind. in this case while rejecting the claim of the appellants the high court had considered that the appellants had failed to satisfy the court that any payment of rent was made either by the father of the appellants or by the appellants themselves. the tribunals below while accepting the case of the appellants had relied on the entries made in the rtc record in respect of certain period. while considering such entries the high court had rightly held that from the entries in the rtc record for the years 1968 to 1974the name of the appellants was not shown as the person in cultivation of the land in dispute and also the nature of cultivation of the scheduled land was not shown as that of the tenants in the said rtc record. that being the position the high court had come to a proper conclusion that the entries in the rtc extracts produced by the appellants could not support the contention that they were cultivating the land in dispute as the tenants. in our view also the high court was fully justified in drawing an adverse inference against the appellants for not producing any geni receipts or any lease agreement to show that the 5th respondent before the high court respondent no 3 herein had in fact leased out the scheduled land in favour of the appellants or their father since deceased on crop share basis and that the appellants had paid the geni to the 5th respondent. such being the findings arrived at by the high court with which we are in concurrence it is difficult to hold that the tenancy claimed by the appellants in respect of the scheduled land could be established. considering the above aspect of the matter and after considering the scope of section 121a of the act we are therefore unable to agree with the learned counsel for the appellants that in the exercise of revisional jurisdiction under section 121a of the act the high court was not entitled to set aside the concurrent findings of fact arrived at by the appellate authority and the land tribunal. such being the position we do not find any reason to interfere with the judgment of the high court although the high court in the exercise of its power under section 121a of the act had set aside the concurrent orders of the appellate authority as well as the land tribunal. mr raju the learned counsel appearing on behalf of the appellants however contended before us that it was not open to the high court in the exercise of its revisional jurisdiction under section 121a of the act to interfere with the concurrent findings of fact arrived at by the appellate authority and the land tribunal. in support of his contention he had relied on a decision of this court in the case of dahya lal ors vs. rasul mohammed abdul rahim 1963 3 scr 1 1962 indlaw sc 366. he also relied on a decision of this court in the case of mohan balaku patil ors vs. krishnoji bhaurao hundre dead. by lrs 2000 1 scc 518 1999 indlaw sc 941 and krishtappa yellappa pujar ors vs. ram samsthan beladhadi 1999 1 scc 74 1998 indlaw sc 1197. in our view so far as the decision in the case of mohan balaku patil ors vs. by lrs 2000 1 scc 518 1999 indlaw sc 941 is concerned it is difficult to conceive how this decision could be of any help to the appellants. in that case the findings recorded by the appellate authority as affirmed by the high court by placing reliance on the entries made in the record of rights to the effect that the appellants were not in possession of the land on the relevant date nor were they cultivating the same were not accepted by this court. in any view of the matter in that decision relying on the aforesaid findings this court also had set aside the order made by the appellate authority as affirmed by the high court in revision and restored the order made by the land tribunal. if that case is of any help to the facts of the present case it would be in favour of the respondents. so far as krishtappa yellapa pujar ors vs. ram samsthan beladhadi 1999 1 scc 74 is concerned we again fail to understand that how this could be of any help to the appellants. in that decision it has been made clear that the high court was entitled to interfere with the orders of the appellate authority only on question of law or irregularity in procedure and on no other aspect. in our view we have already held that the high court was entitled to interfere with the concurrent orders of the tribunals below as material evidence on record was not considered at all and non consideration of the material evidence on record is a question of law and therefore the high court was entitled to interfere. accordingly this decision is of no help to the appellants. lastly in our view in view of the discussion made herein above the decision relied on by the learned counsel for the appellant in the case of dahya lal ors vs. rasul mohammed abdul rahim 1963 3 scr 1 1962 indlaw sc 366 need not be discussed. there is another aspect of this matter. even assuming that the high court was not justified in setting aside the concurrent findings of fact in the exercise of its revisional jurisdiction under section 121a of the act then also we are of the view that it is not a fit case where this court should interfere with the impugned judgment of the high court in the exercise of our power u art 136 of the constitution. in union of india ors vs. gangadhar narsingdas aggarwal anr 1997 10 scc 3051995 indlaw sc 1227 this court while declining to interfere with the order of the high court in the exercise of its power u art 136 of the constitution held that even if two views are possible the view taken by the high court being a plausible one it would not call for intervention by this court u art 136 of the constitution. considering the concurrent orders of the appellate authority and the land tribunal and the impugned order of the high court we are in agreement with the high court because the view taken by it was plausible and therefore the question of interference by us u art 136 of the constitution is not warranted. again in jai mangal oraon vs mira nayak smt ors 2000 5 scc 141. 2000 indlaw sc 332this court had laid down that when there was nothing illegal and wrong in the reasoning and conclusions arrived at by the high court and the same appeared to be well merited and in accordance with the interpretation of statutory provisions this court would not interfere with the order of the high court u art 136 of the constitution. we have already considered the findings made by the high court while setting aside the concurrent orders of the tribunals below and found that the same appear to be well merited and in accordance with the material evidence on record therefore this court would not interfere with the order of the high court u art 136 of the constitution. finally in taherakhatoon d by lrs. salambin mohammad 1992 2 scc 635 1992 indlaw sc 355this court at paragraph 20 has observed as follows in view of the above decisions even though we are now dealing with the appeal after grant of special leave we are not bound to go into merits and even if we do so and declare the law or point out the error. still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion. in view of the aforesaid we are therefore of the view that this is not a fit case where this court shall interfere with the order passed by the high court under section 121a of the act 19 for the reasons aforesaid this appeal fails and is dismissed without any order as to costs. appeal dismissed.

FACTS the appellants claiming to be the tenants of agricultural land, (hereinafter called as the "scheduled land") situated in the state of karnataka,filed before the land tribunal praying for a declaration that they had acquired occupancy rights in respect of the scheduled land. they alleged that they were cultivating the scheduled land from 1968 till the notified date under the act on wara basis giving 1/3rd of the share in the foodgrains to respondent no.4. accordingly,the appellants prayed for an order of occupancy right in respect of the scheduled land alleging that they and their father were cultivating the scheduled land as occupancy right holders relying,inter alia,on the entries under the rtc record. the case of respondent no.4 was that the scheduled land was mortgaged to the 3rd respondent,rajashankar,in 1968 and after the expiry of the said mortgage,the mortgagee was liable to deliver possession of the same. the case of tenancy as made out by the appellants or their father was denied. it was alleged by the respondent no.4 that since the respondent no.3 was a film actor and had settled in madras, with the consent of the respondent no.3,the scheduled land was given to the father of the appellants and the father of the appellants was cultivating the same from 1968 but not as a tenant. accordingly,they prayed for rejection of the application filed by the father of the appellants claiming occupancy rights under the act. initially,the land tribunal allowed the application of the father of the appellants and feeling aggrieved; a writ petition was filed against the said order.the high court had set aside the order of the land tribunal and remanded the case back to the tribunal for a fresh decision. feeling aggrieved,the respondent no.4 filed an appeal before the appellate authority,which was also dismissed. a revision petition,thereafter,was moved before the high court and the high court,by the impugned judgment,had set aside the concurrent findings of fact and rejected the application filed by the father,since deceased,of the appellants holding,inter alia,that the appellants or their father had failed to prove the tenancy in respect of the scheduled land. a special leave petition was filed against the judgment of the high court,setting aside the concurrent orders allowing the application,in respect of which leave has already been granted. ARGUMENT it was not open to the high court,in the exercise of its revisional jurisdiction under section 121a of the act,to interfere with the concurrent findings of fact arrived at by the appellate authority and the land tribunal. ANALYSIS section 121a of the act,had set aside the concurrent findings of fact of the land tribunal as well as of the appellate authority,even then,examining the findings of the high court and considering the power conferred on it in the revisional jurisdiction under section 121a of the act,the court did not find any reason to interfere with the impugned order of the high court in the exercise of our power u/art.136 of the constitution. from a plain reading of section 121a of the act,under which revisional jurisdiction can be exercised,it would be clear that the high court,while exercising such power is entitled to re-appreciate the evidence when it finds that the conclusion arrived at by the appellate authority runs contrary to the materials on record and when it finds that there is no evidence to support the conclusion of the appellate authority or when it finds that the reasons given by the appellate authority are absolutely perverse and cannot be supported by the evidence on record. the high court is also entitled to interfere with the orders of the tribunals below when the material evidence on record was ignored or a finding was such that no court would come to such conclusion or that the decision of the tribunals below was manifestly unjust. the tribunals below,while accepting the case of the appellants,had relied on the entries made in the rtc record in respect of certain period. while considering such entries,the high court had rightly held that from the entries in the rtc record for the years 1968 to 1974,the name of the appellants was not shown as the person in cultivation of the land in dispute and also the nature of cultivation of the scheduled land was not shown as that of the tenants in the said rtc record. the court did not find any reason to interfere with the judgment of the high court,although the high court,in the exercise of its power under section 121a of the act,had set aside the concurrent orders of the appellate authority as well as the land tribunal. even assuming that the high court was not justified in setting aside the concurrent findings of fact in the exercise of its revisional jurisdiction under section 121a of the act,then also,the court was of the view that it is not a fit case where this court should interfere with the impugned judgment of the high court in the exercise of our power u/art.136 of the constitution. in union of india & ors.vs.gangadhar narsingdas aggarwal & anr.[(1997) 10 scc 305],1995 indlaw sc 1227 this court,while declining to interfere with the order of the high court in the exercise of its power u/art.136 of the constitution,held that even if two views are possible,the view taken by the high court being a plausible one,it would not call for intervention by this court u/art.136 of the constitution. this court has already considered the findings made by the high court while setting aside the concurrent orders of the tribunals below and found that the same appear to be well merited and in accordance with the material evidence on record,therefore,this court would not interfere with the order of the high court u/art.136 of the constitution. finally in taherakhatoon (d) by lrs.vs.salambin mohammad [(1992) 2 scc 635 1992 indlaw sc 355],this court observed that in view of the above decisions,even though we are now dealing with the appeal after grant of special leave,we are not bound to go into merits and even if we do so and declare the law or point out the error-still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion. STATUTE section 121a of the karnataka land reforms act,1974 states that "the high court may at any time call for the records of any order or proceeding recorded by the appellate authority under this act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceeding and may pass such order with respect thereto as it thinks fit."

FACTS the appellants claiming to be the tenants of agricultural land,bearing survey no.125/1, (hereinafter called as the "scheduled land") situated in the state of karnataka,filed before the land tribunal praying for a declaration that they had acquired occupancy rights in respect of the scheduled land. they alleged that they were cultivating the scheduled land from 1968 till the notified date under the act on wara basis giving 1/3rd of the share in the foodgrains to respondent no.4. accordingly,the appellants prayed for an order of occupancy right in respect of the scheduled land alleging that they and their father were cultivating the scheduled land as occupancy right holders relying,inter alia,on the entries under the rtc record. the case of the appellants,as made out,was disputed by the respondent no.4. the case of respondent no.4 was that the scheduled land was mortgaged to the 3rd respondent,rajashankar,in 1968 and after the expiry of the said mortgage,the mortgagee was liable to deliver possession of the same. the case of tenancy as made out by the appellants or their father was denied. it was alleged by the respondent no.4 that since the respondent no.3 was a film actor and had settled in madras, with the consent of the respondent no.3,the scheduled land was given to the father of the appellants and the father of the appellants was cultivating the same from 1968 but not as a tenant. accordingly,they prayed for rejection of the application filed by the father of the appellants claiming occupancy rights under the act. initially,the land tribunal allowed the application of the father of the appellants and feeling aggrieved; a writ petition was filed against the said order.the high court had set aside the order of the land tribunal and remanded the case back to the tribunal for a fresh decision. feeling aggrieved,the respondent no.4 filed an appeal before the appellate authority,which was also dismissed. a revision petition,thereafter,was moved before the high court and the high court,by the impugned judgment,had set aside the concurrent findings of fact and rejected the application filed by the father,since deceased,of the appellants holding,inter alia,that the appellants or their father had failed to prove the tenancy in respect of the scheduled land. a special leave petition was filed against the judgment of the high court,setting aside the concurrent orders allowing the application,in respect of which leave has already been granted. ARGUMENT it was not open to the high court,in the exercise of its revisional jurisdiction under section 121a of the act,to interfere with the concurrent findings of fact arrived at by the appellate authority and the land tribunal. ANALYSIS section 121a of the act,had set aside the concurrent findings of fact of the land tribunal as well as of the appellate authority,even then,examining the findings of the high court and considering the power conferred on it in the revisional jurisdiction under section 121a of the act,the court did not find any reason to interfere with the impugned order of the high court in the exercise of our power u/art.136 of the constitution. from a plain reading of section 121a of the act,under which revisional jurisdiction can be exercised,it would be clear that the high court,while exercising such power is entitled to re-appreciate the evidence when it finds that the conclusion arrived at by the appellate authority runs contrary to the materials on record and when it finds that there is no evidence to support the conclusion of the appellate authority or when it finds that the reasons given by the appellate authority are absolutely perverse and cannot be supported by the evidence on record. the high court is also entitled to interfere with the orders of the tribunals below when the material evidence on record was ignored or a finding was such that no court would come to such conclusion or that the decision of the tribunals below was manifestly unjust. the revisional power exercised by the high court under section 121a of the act is wider than the one exercised by the high court in its revisional jurisdiction u/s.115 of the code. the tribunals below,while accepting the case of the appellants,had relied on the entries made in the rtc record in respect of certain period. while considering such entries,the high court had rightly held that from the entries in the rtc record for the years 1968 to 1974,the name of the appellants was not shown as the person in cultivation of the land in dispute and also the nature of cultivation of the scheduled land was not shown as that of the tenants in the said rtc record. the court did not find any reason to interfere with the judgment of the high court,although the high court,in the exercise of its power under section 121a of the act,had set aside the concurrent orders of the appellate authority as well as the land tribunal. even assuming that the high court was not justified in setting aside the concurrent findings of fact in the exercise of its revisional jurisdiction under section 121a of the act,then also,the court was of the view that it is not a fit case where this court should interfere with the impugned judgment of the high court in the exercise of our power u/art.136 of the constitution. in union of india & ors.vs.gangadhar narsingdas aggarwal & anr.[(1997) 10 scc 305],1995 indlaw sc 1227 this court,while declining to interfere with the order of the high court in the exercise of its power u/art.136 of the constitution,held that even if two views are possible,the view taken by the high court being a plausible one,it would not call for intervention by this court u/art.136 of the constitution. again in jai mangal oraon vs.mira nayak (smt.) & ors.[(2000) 5 scc 141] 2000 indlaw sc 332,this court had laid down that when there was nothing illegal and wrong in the reasoning and conclusions arrived at by the high court and the same appeared to be well merited and in accordance with the interpretation of statutory provisions,this court would not interfere with the order of the high court u/art.136 of the constitution. this court has already considered the findings made by the high court while setting aside the concurrent orders of the tribunals below and found that the same appear to be well merited and in accordance with the material evidence on record,therefore,this court would not interfere with the order of the high court u/art.136 of the constitution. finally in taherakhatoon (d) by lrs.vs.salambin mohammad [(1992) 2 scc 635 1992 indlaw sc 355],this court observed that in view of the above decisions,even though we are now dealing with the appeal after grant of special leave,we are not bound to go into merits and even if we do so and declare the law or point out the error-still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion. STATUTE section 121a of the karnataka land reforms act,1974 states that "the high court may at any time call for the records of any order or proceeding recorded by the appellate authority under this act or any other law for the purpose of satisfying itself as to the legality of such order or as to the regularity of such proceeding and may pass such order with respect thereto as it thinks fit."

the order of the court was as follows. in these matters relating to admission to professional courses in medicine engineering pharmacy nursing etc in educational institutions which are claimed to be minority educational institutions the petitioners have questioned the applicability of the scheme framed by this court in j p unni krishnan v state of a p 1993. 1 scc 645 1993 indlaw sc 1056. i as well as the applicability of the rules and orders made by several state governments on the basis of the said decision. by order dated october 71993 passed by the constitution bench three questions were referred for consideration by a larger bench. in pursuance of the said order this bench has been constituted. when the matters were taken up on march 161994the court felt that it was necessary to reframe the first two questions. the hearing of the matters was therefore adjourned to march 181994on which date the questions requiring consideration by this bench have been reframed to highlight the several aspects of the claims put forward by the petitioners. the claim of being a minority whether based on religion or language and the claim of being a minority educational institution put forward by the petitioners can not be pronounced upon without first ascertaining what the said expressions connote and signify. having regard to the importance of the questions involved we consider it appropriate to issue notice to the attorney general of india as well as the advocates general for the states. it would therefore not be feasible to take up the hearing of these matters before the court closes for the long vacation. since the process of selection of candidates for admission for the next academic session is to commence soon it is necessary to pass an interim order governing admission to the professional courses in minority educational institutions for the next academic session. for admission in the last academic session 1993 94an interim order in the following terms was made by a bench comprising honourable the chief justice and one of us justice b p jeevan reddy on may 141993 in writ petition nos 350 and 355 of 1993. we have heard shri soli j sorabjee learned senior counsel for the petitioners in these two writ petitions. issue rule. there will be an interim order in the following terms i fifty per cent of the total intake in the petitioners educational institutions shall be permitted to be filled up by candidates selected by the agencies of the state government on the basis of a competitive examination test. the candidates so selected and admitted shall pay scales of fee as applicable to this class of students as determined by the state government from time to time. the remaining fifty per cent of the intake may be regulated by the petitioners to admit candidates belonging to the particular religious or linguistic minority. however the selection shall be made strictly on the basis of merit among the candidates seeking admission to the institutions. such merit shall be determined oh the basis of the academic performance at the qualifying examination or on the basis of any objective test that the institution might itself apply to determine such relative and competing merits or on the basis of performance of the results of the selection tests that the state government may itself hold for selecting candidates for admission to technical colleges in the state. it is optional for the petitioners to adopt any one of these three modes and apply it uniformally. candidates so selected on the basis of merit amongst the minorities shall however abide by such condition in the matter of payment of tuition and other fee as may be permitted by the state government. it is made clear that this order is made on the assumption that the petitioners are minority institutions. it is open to the respondents to question this status claimed by the petitioners. this order shall however not estop the petitioners from urging all other contentions raised in the writ petitions as indeed this interim interlocutory order is made on the consent of the petitioners and without prejudice to all the contentions. thereafter the matter was considered by the constitution bench in its order dated august 1819932 in that order the writ petitions placed before the bench were categorised into five categories namely1 unaided minority educational institutions2. minority educational institutions which are in receipt of state funds by way of aid3 minority educational institutions in respect of which it is not clear from the averments in the writ petitions whether they are aided or unaided institutions4. writ petitions challenging the correctness and applicability of unni krishnan filed by educational institutions which do not claim to be minority educational institutions5 writ petitions which do not fall in any of the above categories. it was directed that the order dated may 141993would not apply to educational institutions falling in categories 4 and 5 and the institutions referred to in paragraph 18 of the order dated august 181993 the order dated may 141993was made applicable to the institutions falling in categories 12 and 3 with the modification that following were added in continuation of the said order in continuation it is made further clear that whether any of the petitioner institutions is a mei or not is a matter for the government to verify and determine. we do not more particularly at this stage make any pronouncement in that behalf. this order shall be shahal h musaliar v state of kerala1993 4 scc. 112 1993 indlaw sc 575 applicable only to those institutions which are found to be meis on verification by the government and not to those who are not found to be meis on such verification. the 50 seats to be filled up by candidates selected by the agencies of the state government on the basis of a competitive examination test as well as the remaining 50 seats to be filled in accordance with cl of the said order shall be equally distributed between free seats and payment seats. in other words out of the 50 seats to be filled up by government half will be payment seats and half will be free seats. similarly out of the 50 of the seats to be filled up by the management in accordance of the said order half shall be payment seats and the other half free seats. the nris if any admitted to an extent not exceeding 5 of the total seats shall be out of the payment seats to be filled under after completing the admissions each of the colleges shall submit to the competent authority to the university to which it is affiliated and to the government concerned statements containing full particulars of the students admitted under cl ii of para 2 of this order. such statements shall contain as full a particulars as possible. the authorities to which the statements are submitted shall verify the correctness of the statements and if they find any irregularity they shall call upon the college concerned to rectify the same. they shall also bring any such violation to the notice of this court by way of any interlocutory application. any such irregularity if proved may entail serious consequences. separate directions were however given in respect of institutions referred to in writ petitions nos 284 and 482 of 1993 with regard to writ petition no 284 of 1993 it was observed that in the said writ petition the petitioner has claimed that no capitation fee is charged from any student and the fee charged is not more than in some cases less than. the fees charged in the government colleges and that the admission to these institutions is made on the basis of an all india common entrance test separately conducted by the petitioner and admissions are made on the basis of merit as determined in the said test and further that in view of the reputation of these institutions thousands of students apply for and appear in the entrance test every year. it was also observed that this fact was not disputed by the learned advocate general for the state of karnataka. similarly as regards writ petition no 482 of 1993it was observed that according to the petitioner in that case the medical college run by it at vellore in the state of tamil nadu is a well reputed institution admission to which is made on the basis of all india entrance test conducted by the petitioner and that the admissions are made on the basis of merit and the fee charged by it is not more than the fees chargeable in similar governmental institutions and that there has never been any complaint about the working of this institution and it was observed that this fact was not disputed by shri seetharaman learned counsel for the state of tamil nadu. in the order dated august 181993the following directions were given in respect of the institutions covered by the aforesaid writ petitions nos 284 of 1993 and 482 of 19932 having regard to the above circumstances we permit the petitioners. in the above two writ petitions to admit students to their colleges on the basis of entrance test conducted by them and on the same basis on which admissions were made by them in the said colleges in the previous academic year. after completing the admissions the petitioners shall furnish full particulars of the students admitted the categories if any whereunder they were admitted and all other particulars relating to their admission. this information should be furnished to the competent authority to the university to which the said colleges are affiliated and to the secretary education department government of karnataka tamil nadu. the said authorities shall verify whether the admissions have been made by the petitioners in accordance with the directions given herein. in case of irregularity any of the said authorities shall be entitled to call upon the petitioner to rectify the said irregularity. it shall also be open to the competent authority university and the government of karnataka tamil nadu to bring any such irregularity to the notice of this court by way of an interlocutory application for appropriate orders in that behalf. it is made clear that any violation of the directions given herein by the petitioners shall entail serious consequences inasmuch as the above orders are made based upon their representations and even before a counter affidavit has been filed by the respective respondents in view of the urgency expressed by them. dealing with writ petition no 598 of 1993the court after noticing that an agreement was entered into between the institution and the government of kerala according to which while 85 of the seats were to be filled by the government and the remaining 15 of the seats were left for the management to fill up in its discretion observed that since the basic principle in unni krishnan as well as the order dated august 181993 is that merit shall be the guiding principle in the matter of admission a plea for discretionary quota could not be countenanced and it was directed that the said writ petition shall also be governed by the order dated may 141993as modified by addition. by order dated october 719933 the constitution bench having regard to the fact that the year 1993 being a year of transition and adjustment and also in view of the orders of the government of india permitting admission of foreign students to the extent of as much as 50 of the seats as well as the time that had already elapsed permitted the private professional colleges to admit non resident indians and foreign students up to a maximum extent of 15 of the intake capacity of that year. i e 1993with the direction that the basis of the said selection would be as indicated in order dated may 1419934 on the basis of merit leaving to the management of the college t m a pai foundation v state of karnataka1993. 4scc276 2002. indlaw sc 2264 unnikrishnan j p v. state of a p 1993 4 scc 111 1993 indlaw sc 1168 concerned to adjudge the merit of these candidates having regard to the relevant factors. it was further made clear that this was a special provision made only for that year. in the aforesaid order dated october 719933with reference to the minority educational institutions in the state of kerala such as those covered by writ petition no 598 of 1993 it has been observed the system obtaining in kerala appears to be altogether different which was unfortunately not brought to our notice on august 181993 there are only two private engineering colleges in the state said to be minority educational institutions. the system obtaining in this state appears to be that the entire fees collected by these private engineering colleges has to be made over to the government while the government bears the entire expenditure for running the colleges. under this system the colleges were allowed to admit students of their own choice to the extent of 15. we have heard learned counsel for the parties and we are of the view that except for the minority educational institutions in kerala which are governed by the terms of the agreements with the government of kerala the directions given by this court with regard to admissions for the academic session 1993 can continue and govern admissions for the next academic session commencing in 1994 as regards the institutions in the state of kerala which are governed by the terms of agreements with the government of kerala the admissions to such institutions would be made in accordance with those agreements. it is therefore directed that the admission for the academic session commencing in 1994 to the professional courses in the institutions which are claimed to be minority educational institutions shall be made on the following basis i in the institutions referred to in writ petitions nos 284 of 1993 and 482 of 1993 admission shall be made as per the directions given in the order dated august 1819932for the academic session commencing in 1993. in the institutions referred to in writ petition no 598 of 1993 and similar minority educational institutions in the state of kerala which are governed by an agreement with the government of kerala the admissions shall be made in accordance with the terms of those agreements. in respect of the seats which are left for management to fill in its discretion merit shall be the guiding principle. since the entire expenditure of the colleges is borne by the state the entire fees collected are also made over to the state these colleges must be required to draw the students even with respect to the seats to be filled by the management from out of the state merit list if any. in the absence of such list they can themselves devise the method for such selection. we make it clear that regarding the character of these institutions whether they are minority educational institutions we express no opinion. that is a matter between the institutions and the government of kerala. it is enough to record that shri vellapally learned counsel for the state of kerala disputes the minority character of these institutions. in rest of the minority educational institutions falling in categories 12 and 3 indicated in paragraph 5 of the order dated august 1819932admission shall be made in accordance with the directions contained in the order dated may 141993 in writ petitions nos 350 and 355 of 1993 as modified by order dated august 1819932but the directions would not apply to the institutions referred to in paragraph 18 of the order dated august 1819932 in this context we would like to impress upon the managements of the institutions concerned that while assessing the merit of a candidate for admission the objective should be to promote the excellence of the institution as a vehicle of general secular education. insofar as non resident indians and foreign students are concerned the permissible limit would be only 5 of the total intake for a given year as per the direction contained in paragraph 6 of the order dated may 141993 as modified by order dated august 1819932 the admission against these seats shall be made on the basis of merit. but it would be open for the management of the institution to adjudge the merit of the candidates having regard to the relevant factors. the matters be listed for hearing on july 201994 notice be issued to the attorney general of india and the advocates general for the states on the questions as reframed. written submissions in brief should be submitted by learned counsel by july 131994. the contempt petition nos 65100 and 126 of 1992 arise out of the judgment of this court in keshav chandra joshi v union of india 1990 indlaw sc 270 in which this court had directed to determine inter se seniority of the direct recruits and promotee asstt. conservators forests u p rendered on november 61990 it would appear that at present there are 215 direct recruits and 100 promotee asstt. conservators forest working in the forest department. in k c joshi case it was concluded that the promotees were appointed on ad hoc basis as a stop gap arrangement in 7ubstantive posts. their appointments were dehors the rules. until they are appointed by the governor according to the rules they do not become the members of the service in a substantive capacity. their continuous length of ad hoc service from the date of their initial appointment can not be counted towards seniority. the direct recruits were appointed in accordance with rule 5a read with appendix a of u p forest service rules1952 for short the rules. their seniority shall be counted from the date of their discharging duties of the post of asstt. conservators forest and the seniority of direct recruits shall accordingly be fixed. the governor was directed to make appointment by promotion to substantive vacancies to the post of asstt. conservators forest if not already made in accordance with rule 5b read with appendix b and rule 6. we are informed that till date no appointments in terms thereof have been made. the seniority of the promotee asstt. conservators forest shall be counted from the respective dates of appointment to the substantive posts in their quota under rule 6 of the rules. the inter se seniority of the direct recruits and promotees shall be determined in accordance with rules 56 and 24 as per the judgment in k c joshi case. all the employees are entitled to all consequential benefits. later when raj narayan singh and others filed writ petition civil no 641 of 1991this court on june 61991 directed to convert the writ petition as a contempt case for non implementation of the direction issued in k c joshi case which was numbered as contempt petition no 164 of 1971 when. it came up for hearing on august. 231991this court observed thus we are told by the counsel for the state of u p that for the purpose of working out the seniority draft list has been prepared and was in circulation inviting objections. the petitioners therein had not filed any objection despite giving time but it was directed that the state would consider their cases even if they make any representation. in the light of that stand while dismissing the contempt petition this court directed the sate government to dispose of the matter on the basis of the representation that may be received from the petitioners therein against the draft seniority list within six months from that date. in these contempt petitions the promotees as well as some of the subsequent direct recruits complain against fixation of their inter se seniority by the state government. shri r k garg for the promotees contended that as on august 311982 selection of the promotees on regular basis to fill up the posts of asstt. conservator forest for the years 1973 74 to 1979 80 had taken place by a regularly constituted selection committee which selected 140 candidates for appointment. therefore they are entitled to the seniority from the respective years. it is also contended that the promotees are entitled in terms of the judgment in k c joshi case for appointment by promotion to substantive vacancies within their quota in the respective years and that therefore their seniority should be counted from the years in which they started discharging their duties as asstt. conservators forest as they were initially appointed to the substantive vacancies. shri verma appearing for some of the later direct recruits contended that the direct recruits were appointed to the substantive vacancies as held in k c joshi case and their seniority was fixed in the judgment from the date on which they started discharging the duties of the post as asstt. conservators forest. treating them to be temporary as shown in the seniority list prepared by the state is in utter contempt of the directions in joshi case1. in the rejoinder the promotees have stated that as on december 311974 a total number of 140 posts of asstt. conservators forest were available and their quota as per the existing rules was 25 per cent. as on december 11980186 posts namely140 and 46 posts created during the period were available. as per the ratio the promotees are entitled to 33 13per cent quota. as on march 11198532 more posts were created and the total posts available were 218 on. december 1198640 more posts were created. therefore as on march ii1985the total posts available were. 258 on march 11985the quota was increased by 50 per cent. the promotees therefore are entitled to 50 per cent of the posts. as in the year 199072 more posts were created and the total posts are now 330 therefore they are entitled to 50 per cent of the quota in the tentative list. but that was not done. thereby the action of the state is in defiance of the direction issued by this court. in the counter affidavit filed by the state it is stated that as on december 11980 both permanent and temporary posts were 131 as on february 121986203 posts were existing. the permanent posts are 102 and temporary posts are 173 and the total would come to 275 as per rules 5 and 24 only permanent posts should be counted as substantive posts and temporary posts can not be counted for fixation of the seniority. it is further contended that though decision was taken to give 50 per cent quota to the promotees the statutory rules have not been made. therefore they are entitled to only 33 13 per cent quota. since the seniority as per the direction of this court was made only to substantive posts some of the direct recruits became temporary direct recruits and the seniority was determined accordingly. in the light of the respective contentions the question arises whether the determination of the seniority is in accordance with the directions issued by this court. in the light of the background scenario we can not strictly take it to be a case of contempt but in working out the directions issued by this court the state government committed a mistake in law. we have to consider therefore whether the procedure adopted by the sate to determine the inter se seniority is in accordance with the rules and the law laid down in k c joshi case. the directions issued in k c joshi case have already been extracted and their need to reiterate is obviated. from the averments it would appear that 100 promotee asstt. conservators forest are awaiting appointment to substantive vacancies. the total number of direct recruits appears to be 215 prior to december 311974the quota was 75 per cent to the direct recruits and 25 per cent to the promotees. similarly as on january 11975the ratio was increased to 33 13 per cent namely66 23 per cent to the direct recruits and 33 13 per cent to the promotees. indisputably a decision was taken on march 11975 to increase the quota to 50 per cent but no amendment to the statutory rules to give effect to it was made. therefore the operative rule as on that date appears to be 33 13 per cent in respect of promotees. therefore the procedure to be adopted by the state in fixing the inter se seniority of the direct recruits and the promotees in their respective quota is the sole question. there is no rota prescribed in the rules. therefore the state is enjoined to implement the judgment of this court in the light of the statutory rules. it is clear from the counter affidavit filed by the state that the posts are both permanent and temporary. if the temporary posts are likely to continue for long normally as per the law laid down by this court they be treated for the purpose of counting seniority as permanent posts unless they are likely to be abolished. it is a policy matter. therefore the state has to determine whether the posts are likely to be made permanent or abolished. in the event of converting them as permanent under rule 24the quota prescribed in rule 6 would be applied to substantive posts. the seniority shall be determined in accordance with the quota rule to the posts available in the respective years in which the vacancies had arisen otherwise existing substantive posts should be filled up applying rule 6 it is therefore incumbent upon the state government to find out how many vacancies were existing in the year 1974 75 and thereafter every year and to determine as to how the respective posts stood reserved for the direct recruits and promotees in accordance with the quota. on so determining the direct recruits would go en block as seniors to the promotees and the promotee officers in the order of their inter se seniority be appointed by the governor under rule 5b read with rule 6 and would be placed below the direct recruits. similar exercise for each year in which the substantive vacancies had arisen should be done. the officers he they direct recruits or promotees would rank below the juniormost officer in the list of the previous year. after this exercise is exhausted appointments should be made posts are to be filled up to substantive vacancies. it would be open to the state government to fix tentatively the inter se seniority in the temporary posts according to the ratio between the direct recruits and the promotees in the same manner of filling the substantive posts as indicated above. as and when the temporary posts are converted either into permanent posts or the vacancies arise due to superannuation of the senior officers they should be fixed in the respective vacancies and fitment made. after exhausting the exercise the remaining candidates awaiting appointment would continue to be temporary until they get due placement or fixation of their seniority. these directions would meet the exigencies. the state government is directed to undertake fresh exercise in the light of the above directions and complete the same within a period of four months from the date of the receipt of the order. the contempt petitions are accordingly disposed of. petition disposed of.

FACTS for admission in the last academic session 1993-94,an interim order in the following terms was made by a bench comprising hon'ble the chief justice and justice b.p.jeevan reddy on may 14,1993 in writ petition. there will be an interim order in the following terms. (i) fifty per cent of the total intake in the petitioners' educational institutions shall be permitted to be filled up by candidates selected by the agencies of the state government on the basis of a competitive examination/test. the candidates so selected and admitted shall pay scales of fee as applicable to this class of students as determined by the state government from time to time. (ii) the remaining fifty per cent of the intake may be regulated by the petitioners to admit candidates belonging to the particular religious or linguistic minority. however,the selection shall be made strictly on the basis of merit among the candidates seeking admission to the institutions. such merit shall be determined on the basis of the academic performance at the qualifying examination; or on the basis of any objective test that the institution might itself apply to determine such relative and competing merits; or on the basis of performance of the results of the selection tests that the state government may itself hold for selecting candidates for admission to technical colleges in the state. it is optional for the petitioners to adopt any one of these three modes and apply it uniformally. candidates so selected on the basis of merit amongst the minorities shall,however,abide by such condition in the matter of payment of tuition and other fee as may be permitted by the state government. thereafter the matter was considered by the constitution bench. in that order the writ petitions placed before the bench were categorised into five categories,namely,(1) unaided minority educational institutions,(2) minority educational institutions which are in receipt of state funds by way of aid,(3) minority educational institutions in respect of which it is not clear from the averments in the writ petitions whether they are aided or unaided institutions,(4) writ petitions challenging the correctness and applicability of unni krishnan' filed by educational institutions which do not claim to be minority educational institutions,(5) writ petitions which do not fall in any of the above categories. it was directed that the order dated may 14,1993,would not apply to educational institutions falling in categories (4) and (5) and the institutions referred to in paragraph 18 of the order dated august 18,1993. the 50% seats to be filled up by candidates selected by the agencies of the state government on the basis of a competitive examination/test as well as the remaining 50% seats to be filled in accordance with cl.of the said order shall be equally distributed between free seats and payment seats. in other words,out of the 50% seats to be filled up by government,half will be payment seats and half will be free seats.similarly,out of the 50% of the seats to be filled up by the management in accordance of the said order,half shall be payment seats and the other half free seats. the nris,if any admitted to an extent not exceeding 5% of the total seats shall be out of the payment seats to be filled under after completing the admissions each of the colleges,shall submit to the competent authority,to the university to which it is affiliated and to the government concerned statements containing full particulars of the students admitted. ARGUMENT as on august 31,1982 selection of the promotees on regular basis to fill up the posts of asstt.conservator,forest for the years 1973-74 to 1979-80 had taken place by a regularly constituted selection committee which selected 140 candidates for appointment. therefore,they are entitled to the seniority from the respective years.it is also contended that the promotees are entitled,in terms of the judgment in k.c.joshi case' for appointment by promotion to substantive vacancies within their quota in the respective years and that therefore,their seniority should be counted from the years in which they started discharging their duties as asstt.conservators,forest,as they were initially appointed to the substantive vacancies. shri verma appearing for some of the later direct recruits,contended that the direct recruits were appointed to the substantive vacancies as held in k.c.joshi case' and their seniority was fixed in the judgment from the date on which they started discharging the duties of the post as asstt.conservators,forest. treating them to be temporary as shown in the seniority list prepared by the state is in utter contempt of the directions in joshi case1 ISSUE in these matters relating to admission to professional courses in medicine,engineering,pharmacy,nursing,etc.in educational institutions which are claimed to be minority educational institutions,the petitioners have questioned the applicability of the scheme framed by this court in j.p.unni krishnan v.state of a.p.(1993) 1 scc 645 1993 indlaw sc 1056 i as well as the applicability of the rules and orders made by several state governments on the basis of the said decision. ANALYSIS this order is made on the assumption that the petitioners are minority institutions. the claim of being a "minority" -whether based on religion or language -and the claim of being a "minority educational institution" put forward by the petitioners cannot be pronounced upon without first ascertaining what the said expressions connote and signify. having regard to the importance of the questions involved we consider it appropriate to issue notice to the attorney general of india as well as the advocates general for the states. it would,therefore,not be feasible to take up the hearing of these matters before the court closes for the long vacation. since the process of selection of candidates for admission for the next academic session is to commence soon,it is necessary to pass an interim order governing admission to the professional courses in minority educational institutions for the next academic session. since the entire,expenditure of the colleges is borne by the state -the entire fees collected are also made over to the state -these colleges must be required to draw the students even with respect to the seats to be filled by the management from out of the state merit list,if any. in the absence of such list,they can themselves devise the method for such selection. the court in keshav chandra joshi v.union of india' 1990 indlaw sc 270 in which this court had directed to determine inter se seniority of the direct recruits and promotee asstt.conservators,forests,u.p. in k.c.joshi case,it was concluded that the promotees were appointed on ad hoc basis as a stop-gap arrangement in substantive posts. until they are appointed by the governor according to the rules,they do not become the members of the service in a substantive capacity. their continuous length of ad hoc service from the date of their initial appointment cannot be counted towards seniority. the direct recruits were appointed in accordance with rule 5(a) read with appendix a of u.p.forest service rules,1952 for short 'the rules'. their seniority shall be counted from the date of their discharging duties of the post of asstt.conservators,forest and the seniority of direct recruits shall accordingly be fixed. the governor was directed to make appointment by promotion to substantive vacancies to the post of asstt.conservators,forest,if not already made,in accordance with rule 5(b) read with appendix b and rule 6. till date no appointments in terms thereof have been made. the seniority of the promotee asstt.conservators,forest shall be counted from the respective dates of appointment to the substantive posts in their quota under rule 6 of the rules. the inter se seniority of the direct recruits and promotees shall be determined in accordance with rules 5,6 and 24 as per the judgment in k.c.joshi case. all the employees are entitled to all consequential benefits. the direct recruits would go en block as seniors to the promotees and the promotee officers in the order of their inter se seniority be appointed by the governor under rule 5(b) read with rule 6 and would be placed below the direct recruits. similar exercise for each year in which the substantive vacancies had arisen should be done. the officers,he they direct recruits or promotees would rank below the juniormost officer in the list of the previous year. after this exercise is exhausted; appointments should be made; posts are to be filled up to substantive vacancies. STATUTE article 32 of writ petition under the constitution of india

FACTS for admission in the last academic session 1993-94,an interim order in the following terms was made by a bench comprising hon'ble the chief justice and one of us (justice b.p.jeevan reddy) on may 14,1993 in writ petition. there will be an interim order in the following terms. (i) fifty per cent of the total intake in the petitioners' educational institutions shall be permitted to be filled up by candidates selected by the agencies of the state government on the basis of a competitive examination/test. the candidates so selected and admitted shall pay scales of fee as applicable to this class of students as determined by the state government from time to time. (ii) the remaining fifty per cent of the intake may be regulated by the petitioners to admit candidates belonging to the particular religious or linguistic minority. however,the selection shall be made strictly on the basis of merit among the candidates seeking admission to the institutions. such merit shall be determined on the basis of the academic performance at the qualifying examination; or on the basis of any objective test that the institution might itself apply to determine such relative and competing merits; or on the basis of performance of the results of the selection tests that the state government may itself hold for selecting candidates for admission to technical colleges in the state. it is optional for the petitioners to adopt any one of these three modes and apply it uniformally. candidates so selected on the basis of merit amongst the minorities shall,however,abide by such condition in the matter of payment of tuition and other fee as may be permitted by the state government. thereafter the matter was considered by the constitution bench. in that order the writ petitions placed before the bench were categorised into five categories,namely,(1) unaided minority educational institutions,(2) minority educational institutions which are in receipt of state funds by way of aid,(3) minority educational institutions in respect of which it is not clear from the averments in the writ petitions whether they are aided or unaided institutions,(4) writ petitions challenging the correctness and applicability of unni krishnan' filed by educational institutions which do not claim to be minority educational institutions,(5) writ petitions which do not fall in any of the above categories. it was directed that the order dated may 14,1993,would not apply to educational institutions falling in categories (4) and (5) and the institutions referred to in paragraph 18 of the order dated august 18,1993. the 50% seats to be filled up by candidates selected by the agencies of the state government on the basis of a competitive examination/test as well as the remaining 50% seats to be filled in accordance with cl.of the said order shall be equally distributed between free seats and payment seats. in other words,out of the 50% seats to be filled up by government,half will be payment seats and half will be free seats.similarly,out of the 50% of the seats to be filled up by the management in accordance of the said order,half shall be payment seats and the other half free seats. the nris,if any admitted to an extent not exceeding 5% of the total seats shall be out of the payment seats to be filled under after completing the admissions each of the colleges,shall submit to the competent authority,to the university to which it is affiliated and to the government concerned statements containing full particulars of the students admitted. ARGUMENT as on august 31,1982 selection of the promotees on regular basis to fill up the posts of asstt.conservator,forest for the years 1973-74 to 1979-80 had taken place by a regularly constituted selection committee which selected 140 candidates for appointment. therefore,they are entitled to the seniority from the respective years.it is also contended that the promotees are entitled,in terms of the judgment in k.c.joshi case' for appointment by promotion to substantive vacancies within their quota in the respective years and that therefore,their seniority should be counted from the years in which they started discharging their duties as asstt.conservators,forest,as they were initially appointed to the substantive vacancies. shri verma appearing for some of the later direct recruits,contended that the direct recruits were appointed to the substantive vacancies as held in k.c.joshi case' and their seniority was fixed in the judgment from the date on which they started discharging the duties of the post as asstt.conservators,forest. treating them to be temporary as shown in the seniority list prepared by the state is in utter contempt of the directions in joshi case1 ISSUE in these matters relating to admission to professional courses in medicine,engineering,pharmacy,nursing,etc.in educational institutions which are claimed to be minority educational institutions,the petitioners have questioned the applicability of the scheme framed by this court in j.p.unni krishnan v.state of a.p.(1993) 1 scc 645 1993 indlaw sc 1056 i as well as the applicability of the rules and orders made by several state governments on the basis of the said decision. ANALYSIS this order is made on the assumption that the petitioners are minority institutions. according to the petitioner in that case the medical college run by it at vellore in the state of tamil nadu is a well-reputed institution,admission to which is made on the basis of all india entrance test conducted by the petitioner and that the admissions are made on the basis of merit and the fee charged by it is not more than the fees chargeable in similar governmental institutions and that there has never been any complaint about the working of this institution. since the entire,expenditure of the colleges is borne by the state -the entire fees collected are also made over to the state -these colleges must be required to draw the students even with respect to the seats to be filled by the management from out of the state merit list,if any. in the absence of such list,they can themselves devise the method for such selection. we make it clear that regarding the character of these institutions -whether they are minority educational institutions -we express no opinion. that is a matter between the institutions and the government of kerala. this court in keshav chandra joshi v.union of india' 1990 indlaw sc 270 in which this court had directed to determine inter se seniority of the direct recruits and promotee asstt.conservators,forests,u.p. in k.c.joshi case,it was concluded that the promotees were appointed on ad hoc basis as a stop-gap arrangement in substantive posts. until they are appointed by the governor according to the rules,they do not become the members of the service in a substantive capacity. their continuous length of ad hoc service from the date of their initial appointment cannot be counted towards seniority. the direct recruits were appointed in accordance with rule 5(a) read with appendix a of u.p.forest service rules,1952 for short 'the rules'. their seniority shall be counted from the date of their discharging duties of the post of asstt.conservators,forest and the seniority of direct recruits shall accordingly be fixed. the governor was directed to make appointment by promotion to substantive vacancies to the post of asstt.conservators,forest,if not already made,in accordance with rule 5(b) read with appendix b and rule 6. we are informed that till date no appointments in terms thereof have been made. the seniority of the promotee asstt.conservators,forest shall be counted from the respective dates of appointment to the substantive posts in their quota under rule 6 of the rules. the inter se seniority of the direct recruits and promotees shall be determined in accordance with rules 5,6 and 24 as per the judgment in k.c.joshi case. all the employees are entitled to all consequential benefits. the direct recruits would go en block as seniors to the promotees and the promotee officers in the order of their inter se seniority be appointed by the governor under rule 5(b) read with rule 6 and would be placed below the direct recruits. similar exercise for each year in which the substantive vacancies had arisen should be done. the officers,he they direct recruits or promotees would rank below the juniormost officer in the list of the previous year. after this exercise is exhausted; appointments should be made; posts are to be filled up to substantive vacancies. STATUTE writ petition under the constitution of india (article 32).

an fir was registered on 23 3 1996 on the statement of one prakashi devi. she stated that on the night of 2223 3 1996while. she and her daughter in law sheela devi were sleeping in her house around 11 30 pm the appellant jumped over the front wall of her house and broke the bulbs and ran away that at that time no male member was present in the house except the children. that around 00 30 am the appellant again came into her house and touched her daughter in law sheela devi who woke up and raised an alarm and that the appellant immediately ran away. the police investigated into the said complaint and submitted a report u s 173 of the code of criminal procedure for short the code. on that basis the following charge was framed by the judicial magistrate first class karnal against the appellant that on 23 3 1996after having made preparation for causing hurt or assault you committed house trespass into the house of smt. prakashi devi and thereby committed an offence punishable u s 452 ipc within my cognizance. secondly on the same date time and place you assaulted and used criminal force against abovenamed prakashi devi with intent to outrage her modesty and thereby committed an offence punishable u s 354 ipc and within my cognizance. and i hereby direct that you be tried on the above said charge by this court. emphasis supplied. when the said charged was read over and explained to the appellant he pleaded not guilty to the said charge and claimed trial. prakashi devi was examined as pw 1 she reiterated what was recorded in the fir that the appellant came into the house around 11 30 pm and broke the bulbs that he came again around 00 30 am and touched her daughter in law sheela devi and when her daughter in law woke up and raised an alarm the appellant ran away. in her cross examination prakashi devi stated that she has five sons that only her husband and one son named mahavir were staying with her that the other four sons were married and were not staying with her that on that night her husband was away in the fields and her son mahavir was also not present in the house. however when confronted with her statement recorded in the fir she admitted having stated that when the appellant had come first time at around 11 30 pm and broke the outside bulbs her son woke up and went out of the house. she also admitted that the appellant did not touch her nor teased her nor abused her. her daughter in law sheela devi gave evidence as pw 2 and stated that she was married to one jaibir who worked in the military services that at 11 to 11 30 pm the accused scaled the door and broke the bulbs in the verandah of her house that when she identified the accused and raised an alarm the accused ran away that again he came around 00 30 am by scaling the door and caught her hand and that when she raised an alarm and when her mother in law woke up he ran away. it was elicited in her cross examination that the accused did not go towards her mother in law nor say anything to her mother in law that she used to come to the village where her in laws were residing only when her husband came home and that the house of her father in law was surrounded by the houses of his brothers and their sons. both pw1 and pw2 stated that the house of the accused was at a distance of 15 16 houses from the house of prakashi devi that the accused had never come into their house earlier that their family and the accused were not on visiting terms with each other even during functions marriages or death though they were on visiting terms with others in the village. pw 2 also stated that she did not know the particulars of the dispute between the accused and her in laws. the investigating officer was examined as pw 3 the accused examined a witness ex sarpanch of the village as dw 1 and he stated that there was a quarrel between the accused and complainant 's son surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the accused by registering a false allegation that the accused had outraged the modesty of a woman. the learned magistrate by judgment dated 2 2 2001held the accused guilty of offences u ss 452 and 354 cr. pc and sentenced him for rigorous imprisonment for six months and a fine of rs 1000 in default thereof simple imprisonment for one month. the appeal filed by the accused was dismissed by the addl. sessions judge on 20 2 2002 the criminal revision filed by the appellant was disposed of by the high court on 16 3 2010 upholding the conviction but reducing the sentence from six to four months rigorous imprisonment. that order is challenged by the accused. one of the contentions urged by the accused before the appellate court and high court was that the charge against him was that he attempted to outrage the modesty of prakashi devi pw 1 whereas the evidence was to show that he attempted to outrage the modesty of her daughter in law sheela devi. he contended that as the charge levelled against him was not proved and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of sheela devi he ought to have been acquitted. this was negatived by the appellate court and high court holding that an accused can not take advantage of a technical defect in framing the charge. it was held that mentioning the name of prakashi devi instead of the name of sheela devi in the charge was an error that did not prejudice the accused. the following question therefore arises for our consideration when the charge is that the accused assaulted x and outraged her modesty but the evidence is that he assaulted y to outrage her modesty can the accused be punished for having assaulting and outraging the modesty of yeven though he was not charged with any offence with reference to yon the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. s 211 of the code relates to the contents of the charge. it inter alia provides that every charge under the code shall state the offence with which the accused is charged. s 212 of the code provides that the charge shall contain the particulars as to the time and place of the alleged offence and the person if any against whom or the thing if any in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. s 215 of the code however clarifies that no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. s 464 of the code relates to effect of omission to frame or absence of or error in charge. sub s 1 thereof provides that no finding sentence or order of a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error omission or irregularity in the charge including any misjoinder of charge unless in the opinion of the court of appeal confirmation or revision a failure of justice has in fact been occasioned thereby. sub s 2 of sec 464 provides that if the court of appeal confirmation or revision is of opinion that failure of justice has in fact been occasioned it may a in the case of an omission to frame a charge order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge b in case of an error omission or irregularity in the charge direct a new trial to be had upon a charge framed in whatever manner it thinks fit. in willie william slaney vs state of madhya pradesh. air 1956 sc 116 1955 indlaw sc 80 this court explained the concepts of prejudice to the accused and failure of justice thus 6 before we proceed to set out our answer and examine the provisions of the code we will pause to observe that the code is a code of procedure and like all procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. the object of the code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. if he does if he is tried by a competent court if he is told and clearly understands the nature of the offence for which he is being tried if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself then provided there is substantial compliance with the outward forms of the law mere mistakes in procedure mere inconsequential errors and omissions in the trial are regarded as venal by the code and the trial is not vitiated unless the accused can show substantial prejudice. that broadly speaking is the basic principle on which the code is based. now here as in all procedural laws certain things are regarded as vital. disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. others are not vital and whatever the irregularity they can be cured and in that event the conviction must stand unless the court is satisfied that there was prejudice. some of these matters are dealt with by the code and wherever that is the case full effect must be given to its provisions. this court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice the matter resolves itself to a question of prejudice. some violations of the code will be so obvious that they will speak for themselves as for example a refusal to give the accused a hearing a refusal to allow him to defend himself a refusal to explain the nature of the charge to him and so forth. these go to the foundations of natural justice and would be struck down as illegal forthwith. it hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land because either way they would be struck down at once. other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. in still another class of case the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. the code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice. it is the substance that we must seek. courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. broad vision is required a nice balancing of the rights of the state and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. every reasonable presumption must be made in favour of an accused person he must be given the benefit of every reasonable doubt. the same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. but when all is said and done what we are concerned to see is whether the accused had a fair trial whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. if all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one. in adjudging the question of prejudice the fact that the absence of a charge or a substantial mistake in it is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was or was reasonably likely to have been misled in the circumstances of any particular case he is as much entitled to the benefit of it here as elsewhere but if on a careful consideration of all the facts prejudice or a reasonable and substantial likelihood of it is not disclosed the conviction must stand also it will always be material to consider whether objection to the nature of the charge or a total want of one was taken at an early stage. but these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another because the facts can never be alike in any two cases however alike they may seem. there is no such thing as a judicial precedent on facts though counsel and even judges are sometimes prone to argue and to act as if there were. in gurbachan singh v state of punjab air 1957 sc 623 1957 indlaw sc 181 following willie slaney this court held in judging a question of prejudice as of guilt courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair trial whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. in shamnsaheb m multtani vs state of karnataka 2001 2 scc 577. 2001 indlaw sc 19904this court considered the meaning of the expression failure of justice occurring in s 464 of cr. pc this court held thus the crux of the matter is this would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304 b ipc when all the ingredients necessary for the said offence have come out in evidence although he was not charged with the said offence. a conviction would be valid even if there is any omission or irregularity in the charge provided it did not occasion a failure of justice. the criminal court particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. one of the cardinal principles of natural justice is that no man should be condemned without being heardaudi alteram partem but the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. however if the aspect is of such a nature that non explanation of it has contributed to penalizing an individual the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non compliance with the principle of natural justice. the above principles are reiterated in several decisions of this court including state of west bengal vs laisal haque air 1989 sc 129 1988 indlaw sc 706state of a p vs. thakkidiram reddy. 6 scc 554 1998 indlaw sc 1286dalbir singh v state of up 2004 5 scc 334 2004 indlaw sc 247dumpala chandra reddy vs nimakayala bali reddy 2008. 8 scc 339 2008 indlaw sc 1064 and sanichar sahni vs state of bihar 2009 7 scc 198 2009 indlaw sc 736. the following principles relating to sections 212215 and 464 of the code relevant to this case become evident from the said enunciations i the object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. the charge must also contain the particulars of date time place and person against whom the offence was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. the accused is entitled to know with certainty and accuracy the exact nature of the charge against him and unless he has such knowledge his defence will be prejudiced. where an accused is charged with having committed offence against one person but on the evidence led he is convicted for committing offence against another person without a charge being framed in respect of it the accused will be prejudiced resulting in a failure of justice. but there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. such knowledge can be inferred from the defence that is if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. in judging a question of prejudice as of guilt the courts must act with a broad vision and look to the substance and not to the technicalities and their main concern should be to see whether the accused had a fair trial whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. the respondent relied upon the decision of this court in state of himachal pradesh v geeta ram 2000 7 scc 452 2000 indlaw sc 408 in that case. the respondent was chargesheeted for an offence u s 376 ipc and s 3 of the scheduled castes and scheduled tribes prevention of atrocities. act1989 the magistrate committed the case to sessions court which was specified as a special court under the act. the special court framed a charge only for an offence u s 376 ipc and after trial convicted the respondent u s 376 ipc and sentenced him to ten years imprisonment. the high court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the sc st prevention of atrocities act. this court reversed the decision of the high court on the ground that a special court under the act being a sessions court it continued to have jurisdiction to try the case for the offence u s 376. ipc that matter was considered u s 465 of the code and not relevant on the facts of this case. as noticed above in this case the charge was that appellant committed trespass into the house of prakashi devi for assaulting prakashi devi and assaulted the said prakashi devi and outraged her modesty. the accused concentrated his cross examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of prakashi devi. he did not try to challenge the evidence let in to show that he had tried to outrage the modesty of sheela devi as he was not charged with such an offence. the evidence of pw 1 and pw 2 was that the appellant did not touch or tease or abuse prakashi devi. their evidence was that he touched caught the hand of sheela devi and when she raised an alarm he ran away. when the charge was that the accused attempted to commit trespass into the house of prakashi devi with intent to outrage the modesty of prakashi devi the conclusion of the appellate court and the high court that there was no failure of justice if he is punished for the offence of having assaulted sheela devi and outraging her modesty is opposed to principles of fair play and natural justice embodied in sections 211212215 and 464 of the code. when the accused is charged with having entered the house of prakashi devi and assaulted the said prakashi devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true he can not be convicted for having assaulted and outraging the modesty of someone else namely sheela devi. the accused did not have any opportunity to meet or defend himself against the charge that he assaulted sheela devi and outraged her modesty. nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to sheela devi. one of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. an accused can not be punished for committing an offence against y when he is charged with having committed the offence against x and the entire defence of the accused was with reference to charge of having committed offence against x. the illustrations under a provision of a statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. illustration e u s 215 of the code as contrasted from illustration d under that section throws some light on this issue. the said illustrations are extracted below d a is charged with the murder of khoda baksh on the 21st january1882 in fact the murdered person 's name was haidar baksh and the date of the murder was the 20th. january1882 a was never charged with any murder but one and had heard the inquiry before the magistrate which referred exclusively to the case of haidar baksh. the court may infer from these facts that a was not misled and that the error in the charge was immaterial. e a was charged with murdering haidar baksh on the 20th january1882and khoda baksh who tried to arrest him for that murder on the 21 st january1882 when charged for the murder of haidar baksh he was tried for the murder of khoda baksh. the witnesses present in his defence were witnesses in the case of haidar baksh. the court may infer from this that a was misled and that the error was material. applying the guidance offered by the said illustrations and the legal principles evolved by this court the position will be as follows. if sheela devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said sheela devi but in the charge the name of the victim had been erroneously mentioned say as sushila devi or prakashi devi though there was no person by such nameand the inquiry exclusively referred to the assault and outraging the modesty of sheela devi the court could infer that the accused was not misled and the error in the charge was immaterial. on the other hand if two persons were present in the house at the time of the incident namely prakashi devi and sheela devi and the accused is charged with trespassing into the house of prakashi devi and assaulting and outraging the modesty of the said prakashi devi and the witnesses refer only to the assault and outraging the modesty of sheela devi the court will have to infer that the accused was prejudiced if the accused had solely concentrated and focused his defence and entire cross examination to show that he did not commit the offences against prakashi devi. the court having charged the accused with the offence of having trespassed into the house of prakashi devi with intent to assault her and having further charged him for having assaulted the said prakashi devi by outraging her modesty convicts him on the ground that though he did not assault or outrage the modesty of prakashi devi he had outraged the modesty of sheela devi that would lead to failure of justice. there was a material error in the charge as it violated the requirement of sub s 1 of s 212 of the code that the charge shall contain particulars as to the person against whom the offence was committed. there were two women present at the house at the time of the alleged incident namely prakashi devi and her daughter in law sheela devi. in view of the specific charge the accused concentrated on showing that the charge was false. he did not attempt to meet the case made out in the trial that the offence was against sheela devi. the accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. therefore we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of sheela devi. the appeal is therefore allowed the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words her daughter in law sheela devi for the words abovenamed prakashi deviin the second part of the charge. appeal allowed.

FACTS an fir was registered on 23.3.1996 on the statement of one prakashi devi. she stated that on the night of 22/23.3.1996,while. she and her daughter-in-law sheela devi were sleeping in her house,around 11.30 pm,the appellant jumped over the front wall of her house and broke the bulbs and ran away; that around 00.30 am the appellant again came into her house and touched her daughter-in-law sheela devi who woke up and raised an alarm; and that the appellant immediately ran away. the police investigated into the said complaint and submitted a report u/s.173 of the code of criminal procedure . the judicial magistrate,first class,karnal charged him under section 452 ipc and section 354 ipc. when the said charged was read over and explained to the appellant,he pleaded not guilty to the said charge and claimed trial. prakashi devi was examined as pw-1. that order is challenged by the accused. ISSUE when the charge is that the accused assaulted 'x' and outraged her modesty,but the evidence is that he assaulted 'y' to outrage her modesty,can the accused be punished,for having assaulting and outraging the modesty of 'y',even though he was not charged with any offence with reference to 'y',on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. ANALYSIS the following principles relating to sections 212,215 and 464 of the ipc ,relevant to this case,become evident from the said enunciations: (i. the object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. the charge must also contain the particulars of date,time,place and person against whom the offence was committed,as are reasonably sufficient to give the accused notice of the matter with which he is charged. ii. the accused is entitled to know with certainty and accuracy,the exact nature of the charge against him,and unless he has such knowledge,his defence will be prejudiced. where an accused is charged with having committed offence against one person but on the evidence led,he is convicted for committing offence against another person,without a charge being framed in respect of it,the accused will be prejudiced,resulting in a failure of justice. but there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. such knowledge can be inferred from the defence,that is,if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. iii. in judging a question of prejudice,as of guilt,the courts must act with a broad vision and look to the substance and not to the technicalities,and their main concern should be to see whether the accused had a fair trial,whether he knew what he was being tried for,whether the main facts sought to be established against him were explained to him fairly and clearly,and whether he was given a full and fair chance to defend himself. the charge was that appellant committed trespass into the house of prakashi devi for assaulting prakashi devi,and assaulted the said prakashi devi and outraged her modesty. the accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of prakashi devi. he did not try to challenge the evidence let in to show that he had tried to outrage the modesty of sheela devi,as he was not charged with such an offence. the evidence of pw-1 and pw-2 was that the appellant did not touch or tease or abuse prakashi devi. their evidence was that he touched/caught the hand of sheela devi and when she raised an alarm he ran away. when the charge was that the accused attempted to commit trespass into the house of prakashi devi with intent to outrage the modesty of prakashi devi,the conclusion of the appellate court and the high court that there was no failure of justice if he is punished for the offence of having assaulted sheela devi and outraging her modesty,is opposed to principles of fair play and natural justice embodied in sections 211,212,215 and 464 of the code. when the accused is charged with having entered the house of prakashi devi and assaulted the said prakashi devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true,he cannot be convicted for having assaulted and outraging the modesty of someone else,namely sheela devi. the accused did not have any opportunity to meet or defend himself against the charge that he assaulted sheela devi and outraged her modesty. nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to sheela devi. one of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. an accused cannot be punished for committing an offence against 'y' when he is charged with having committed the offence against 'x' and the entire defence of the accused was with reference to charge of having committed offence against 'x. in view of the specific charge,the accused concentrated on showing that the charge was false. he did not attempt to meet the case made out in the trial that the offence was against sheela devi. the accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. therefore, there should be a new trial after charging him with the offence of outraging the modesty of sheela devi. STATUTE s.211 of the ipc relates to the contents of the charge. it inter alia provides that every charge under the code shall state the offence with which the accused is charged. s.212 of the ipc provides that the charge shall contain the particulars as to the time and place of the alleged offence,and the person (if any) against whom,or the thing (if any) in respect of which,it was committed,as are reasonably sufficient to give the accused notice of the matter with which he is charged. s.215 of the ipc however clarifies that no error in stating either the offence or the particulars required to be stated in the charge,and no omission to state the offence or those particulars,shall be regarded at any stage of the case as material,unless the accused was in fact misled by such error or omission,and it has occasioned a failure of justice. s.464 of the ipc relates to effect of omission to frame,or absence of,or error in,charge.

FACTS an fir was registered on 23.3.1996 on the statement of one prakashi devi. she stated that on the night of 22/23.3.1996,while she and her daughter-in-law sheela devi were sleeping in her house,around 11.30 pm,the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time,no male member was present in the house except the children; that around 00.30 am the appellant again came into her house and touched her daughter-in-law sheela devi who woke up and raised an alarm; and that the appellant immediately ran away. the police investigated into the said complaint and submitted a report u/s.173 of the code of criminal procedure (for short 'the code'). on that basis,the following charge was framed by the judicial magistrate,first class,karnal,against the appellant. when the said charged was read over and explained to the appellant,he pleaded not guilty to the said charge and claimed trial. prakashi devi was examined as pw-1. in her cross-examination,prakashi devi stated that she has five sons; that only her husband and one son named mahavir were staying with her; that the other four sons were married and were not staying with her; that on that night,her husband was away in the fields and her son mahavir was also not present in the house. however,when confronted with her statement recorded in the fir,she admitted having stated that when the appellant had come first time at around 11.30 pm and broke the outside bulbs,her son woke up and went out of the house. she also admitted that the appellant did not touch her nor teased her nor abused her. her daughter-in-law sheela devi gave evidence as pw-2 and stated that she was married to one jaibir who worked in the military services; that at 11 to 11.30 pm the accused scaled the door and broke the bulbs in the verandah of her house; that when she identified the accused and raised an alarm the accused ran away; that again he came around 00.30 am by scaling the door and caught her hand; and that when she raised an alarm and when her mother-in-law woke up,he ran away. the accused examined a witness ex-sarpanch of the village as dw-1 and he stated that there was a quarrel between the accused and complainant's son surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the accused by registering a false allegation that the accused had outraged the modesty of a woman. ISSUE when the charge is that the accused assaulted 'x' and outraged her modesty,but the evidence is that he assaulted 'y' to outrage her modesty,can the accused be punished,for having assaulting and outraging the modesty of 'y',even though he was not charged with any offence with reference to 'y',on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. ANALYSIS the special court framed a charge only for an offence u/s.376 ipc and after trial convicted the respondent u/s.376 ipc and sentenced him to ten years imprisonment. the high court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the sc & st (prevention of atrocities) act. this court reversed the decision of the high court on the ground that a special court under the act being a sessions court,it continued to have jurisdiction to try the case for the offence u/s.376 ipc. that matter was considered u/s.465 of the code and not relevant on the facts of this case. the charge was that appellant committed trespass into the house of prakashi devi for assaulting prakashi devi,and assaulted the said prakashi devi and outraged her modesty. the accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of prakashi devi. he did not try to challenge the evidence let in to show that he had tried to outrage the modesty of sheela devi,as he was not charged with such an offence. the evidence of pw-1 and pw-2 was that the appellant did not touch or tease or abuse prakashi devi. when the accused is charged with having entered the house of prakashi devi and assaulted the said prakashi devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true,he cannot be convicted for having assaulted and outraging the modesty of someone else,namely sheela devi. the accused did not have any opportunity to meet or defend himself against the charge that he assaulted sheela devi and outraged her modesty. nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to sheela devi. one of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. applying the guidance offered by the said illustrations and the legal principles evolved by this court,the position will be as follows : if sheela devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said sheela devi,but in the charge the name of the victim had been erroneously mentioned,say as sushila devi or prakashi devi (though there was no person by such name),and the inquiry exclusively referred to the assault and outraging the modesty of sheela devi,the court could infer that the accused was not misled and the error in the charge was immaterial. the court having charged the accused with the offence of having trespassed into the house of prakashi devi with intent to assault her and having further charged him for having assaulted the said prakashi devi by outraging her modesty,convicts him on the ground that though he did not assault or outrage the modesty of prakashi devi,he had outraged the modesty of sheela devi,that would lead to failure of justice. there was a material error in the charge as it violated the requirement of sub-s.(1) of s.212 of the code,that the charge shall contain particulars as to the person against whom the offence was committed. there were two women present at the house at the time of the alleged incident,namely prakashi devi and her daughter-in-law sheela devi. in view of the specific charge,the accused concentrated on showing that the charge was false. he did not attempt to meet the case made out in the trial that the offence was against sheela devi. the accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. therefore,we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of sheela devi. STATUTE s.211 of the code of criminal procedure relates to the contents of the charge. it inter alia provides that every charge under the code of criminal procedure shall state the offence with which the accused is charged. s.212 of the code of criminal procedure provides that the charge shall contain the particulars as to the time and place of the alleged offence,and the person (if any) against whom,or the thing (if any) in respect of which,it was committed,as are reasonably sufficient to give the accused notice of the matter with which he is charged. s.215 of the code of criminal procedure however clarifies that no error in stating either the offence or the particulars required to be stated in the charge,and no omission to state the offence or those particulars,shall be regarded at any stage of the case as material,unless the accused was in fact misled by such error or omission,and it has occasioned a failure of justice. s.464 of the code of criminal procedure relates to effect of omission to frame,or absence of, or error in, charge.

these three appeals by special leave are directed against the order dated september 92004 passed by intellectual property appellate board for shortipab whereby it ordered the removal of appellant 's mark infosys from the register of trade marks in respect of computer stationery computer manuals printed matter for computer instructional and teaching materials computer hardware and peripherals and machine and machine tools. the appellant is infosys technologies limited. it was incorporated and registered under the companies act1956 on july 21981 in the name of infosys consultants private limited. the appellant got the trade mark infosys registered in 1987 in classes 16 and 9 in connection with computer stationery computer manuals printed manual for computer instruction and teaching materials computer hardwares computer interface computer peripherals electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors not for land vehicles the particulars with reference to the trade mark registered by the appellant are as follows. on april 211992the name of the company infosys consultants pvt. limited was changed to infosys technologies pvt. ltd and thereafter on june 21992the name was changed to the present name i e. infosys technologies limited. the first respondent is jupiter infosys limited. the first respondent was incorporated and registered in september 1978 under the name of jupiter agencies pvt. limited. the name of the first respondent was changed to jupiter infosys p limited in august1995 and now since july2003the name is changed to jupiter international limited. on october 111996the appellant instituted a suit in the calcutta high court for perpetual injunction inter alia restraining the first respondent from infringing the appellant 's mark infosys by using the mark infosys by itself or in combination with other marks in course of its trade. the appellant also prayed for an interim order in the suit. on november 221996the calcutta high court by an ad interim order restrained the first respondent from using the word infosys in any manner in relation to the goods for the time being. the ad interim order was confirmed on november 291996. the appellant having come to know of several instances of misuse of mark infosys also filed a writ petition being writ petition no 14214 of 2000 before the calcutta high court inter alia praying that the registrar of companies be restrained from registering the companies bearing the name infosys. on september 132000the calcutta high court restrained the department of company affairs and registrar of companies from incorporating any company bearing the name infosys without the permission of the appellant. in january 2001the appellant filed yet another suit before the high court of judicature at madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the initial public offer ipo using infosys. the single judge of the madras high court passed an interim restraint order on february 12001 against the first respondent. the said order was confirmed on may 222001 to remain operative till disposal of suit. the first respondent then filed three separate applications before the madras high court inter alia under sections 46 and 56 of the trade and merchandise marks act1958. the 1958 act in o p no 764 of 2001the first respondent prayed for the removal rectification of the entry in the register of trade mark in respect of trade mark no 475269 in class 16 while in the other two applications being o p no 765 of 2001 and o p no 766 of 2001the first respondent prayed for removal rectification of trade mark no 475267 in class 9 and trade mark no 484837 in class 7 respectively. the appellant opposed these applications on diverse grounds by filing counter affidavits. on august 122003the madras high court framed the following issues. a whether the mark applied for registration was used in respect of the goods for which the mark was registered. b whether the respondent had a bonafide intention to use the mark applied for under section 18 of the trade and merchandise marks act. cwhether the mark registered in favour of the respondent is a service mark. dwhether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month. ewhether the registered trade mark is disentitled for protection in a court of law under section 11e of the trade and merchandise marks act. fwhether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32c. g whether the respondent has committed fraud while obtaining registration of the mark and. hto what further relief. the 1958 act was repealed by the trade marks act1999 for shortthe 1999 act in terms of section 100 of the 1999 act the three petitions filed by the first respondent before the madras high court for rectification removal of registered trade mark nos 475269475267 and 484837 were transferred to the ipab. some more facts may be noticed. the appellant filed yet another suit being suit no 2115 of 2002 before delhi high court for infringement of trade mark and passing off against the first respondent. in that suit the appellant also made an application for grant of temporary injunction. the vacation judge of the delhi high court on december 272002 passed an order of temporary injunction against the first respondent as follows notice for 24th march2003 before the joint registrar. heard. perused the averments made in the suit and application which are duly supported by documents on record. i am of the opinion that in case ex parte ad interim orders are not granted the relief claimed itself may be rendered infructuous. accordingly it is directed that pending further consideration of the matter after notice for the next date of hearing the defendants are restrained by themselves their directors employees agents andor others acting on its behalf from using the trade mark corporate name infosys or any other mark name deceptively similar trade mark or colourable imitation thereof as a mark andor corporate name or as part of a mark andor business name in respect of goods andor services for publicity on propaganda on websites and or in domain names in any way whatsoever thereby causing infringement of the registered trade mark infosys of the plaintiff in isolation or in combination with words letters numbers their advertisements as part of their corporate name either in isolation or in goods and services or in or by way of any advertisement publicity campaigns etc. compliance of order xxxix rule 3 cpc within three days. the said suit was transferred to the court of the additional district judge tis hazari court delhi. in that suit an affidavit came to be filed by the first respondent wherein it was stated that the name of the company has been changed from jupiter infosys limited to jupiter international limited and a certificate to that effect has been issued by the registrar of companies kolkata under the companies act1956 and no dispute remains between the parties under the trade mark. the relevant statement made in the affidavit dated july 142003 we were informed that the date of the affidavit is july 142004 reads as follows that in the meantime the defendant has already changed the trade mark namely jupiter international ltd in place of jupiter infosys ltd the copy of the incorporation on change of name which was issued by the registrar of the companies are being marked and annexed herewith as annexure a that now there is no dispute between the plaintiff and defendant under the trade mark. based on this affidavit the suit was partially decreed in favour of the appellant on november 102004. in 2007however the first respondent filed a suit in the court of additional district judge delhi for setting aside the decree dated november 102004 that suit is said to be pending. the ipab proceeded with the matter in light of the issues that were already framed by the high court and heard the parties. the ipab in the impugned order while dealing with the plea of limitation raised by the appellant held that the first respondent was the appropriate aggrieved party in the matter in view of the fresh cause of action having arisen to the first respondent on filing of civil suit no 71 of 2001 by the appellant before the madras high court. the ipab in the impugned order held that the trade mark nos 475269475267 and 484837 have not been used by the appellant for more than a period of five years and one month and the appellant also failed to make out that it had been in manufacturing or trading of the goods for which it had taken registration nos 475269475267 and 484837 consequently the ipab allowed the applications made by the first respondent purportedly under section 461b of the 1958 act and directed the registrar to remove these registrations from the register. we heard mr akhil sibal learned counsel for the appellant and mr vaibhav gaggar learned counsel for the first respondent at quite some length. mr akhil sibal learned counsel for the appellant argued that an application for rectification whether under section 46 or section 56 of the 1958 act can only be preferred by a person aggrieved the applicant must not only be a person aggrieved on the date of the application but must continue to remain a person aggrieved until such time as the rectification application is finally decided. he contended that the first respondent is not shown to have ever traded or intended to trade in any goods covered by the appellant 's registrations under classes 7 and 16 and as such the first respondent is not a person aggrieved with regard to the appellant 's registrations under these two classes. as regards class 9 he would submit that in view of the affidavit filed by the first respondent on july 142004 in the court of additional district judge delhi the first respondent ceases to be an aggrieved person on the date of consideration of the rectification application. learned counsel heavily relied upon two decisions of this court 1 hardie trading ltd anr v. addisons paint chemicals ltd 2003 11 scc 92 2003 indlaw sc 756 and 2 kabushiki kaisha toshiba v tosiba appliances company ors 2008 10 scc 766 2008 indlaw sc 1395. assailing the finding of the ipab as regards non use by the appellant during the relevant period learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise. he contended that the ipab erred in holding that software was a service and the subject registrations were in relation to goods without considering the wide definition of goods provided under section 2g of the 1958 act. akhil sibal argued that the ipab committed grave error in relying upon the provisions of the 1999 act and the trade marks rules2002 when these provisions were not applicable as the applications were filed under the 1958 act. according to him the ipab sought to rely upon computer programming which is a service enumerated in class 42without considering the distinction between a computer programme and computer programming and without noticing the entry computer under class 9 which falls within goods. learned counsel would submit that in examining the question of non use under section 461bthe ipab failed to consider that the requisite use must be in relation to goods under registration which is extensively defined under section 22b of the 1958 act. akhil sibal learned counsel also argued that the ipab failed to have regard to the proviso to section 461in terms of which it is open to the registered proprietor to rely upon use of the registered trade mark during the relevant period in relation to goods of the same descriptionin order to resist an application for rectification. he contended that the ipab failed to apply proper legal tests for determining goods of the same description and had that been done it would be evident that computer software amounts to goods of the same description as computer hardware. in this regard he relied upon m s eagle potteries. private ltd v. m s eagle flask industries pvt. ltd air 1993 bombay 185 1992 indlaw mum 6327 lever brothers port sunlight ld v. sunniwite products ld 1949 66 rpc 84. the ritz hotel v charles of the ritz 1989. rpc 333 and australian wine importers trade mark. 6 rpc 311. learned counsel for the appellant also submitted that in any view of the matter the ipab erred in exercising its discretion under section 46 of the 1958 act without taking into consideration the aspect of public interest. he argued that the ipab ought to have considered whether use of mark infosys by the first respondent on computer hardware would create confusion in the mind of the consumers that they might be led to believe that the said hardware is manufactured by the appellant. learned counsel thus submitted that the impugned order is unsustainable and liable to be set aside. on the other hand an objection is raised in the written submissions on behalf of the first respondent and reference was made in support of the objection to seven judge bench decision of this court in l chandrakumar v union of india ors 1997 3 scc 261 1997 indlaw sc 2816 that challenge to the order of ipab directly in the appeal before this court under article 136 of the constitution is barred. in reply to the arguments of learned counsel for the appellant mr vaibhav gaggar learned counsel for the first respondent strenuously urged that the plea of aggrieved person is a new plea and raised substantially for the first time before this court. he argued that the appellant has not taken the plea of the first respondent not being a person aggrieved with respect to filing of the applications for rectification before the ipab merely urging the plea that the first respondent has no locus standi in the written submissions before the ipab is not sufficient. learned counsel would submit that the appellant has for the first time argued before this court that the first respondent is not a person aggrieved andor not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods. vaibhav gaggar rather asserted that the first respondent is a person aggrieved in view of the fact that various suits for infringement have been filed by the appellant against the first respondent and on the date of the applications for rectification removal of the subject registrations from the register the suits were pending. with reference to the affidavit dated july 142004 filed by the first respondent before the court of additional district judge he submitted that the said affidavit has no relevance in consideration as to whether the first respondent is an aggrieved person as section 46 1 of the 1958 act relates only to the period upto the date of the filing of the rectification application and the rights of the parties crystallized at that stage itself. in this regard he relied upon a decision of the madras high court in agha hyder hussain anr v. omar khayyam wineries pvt ltd anr air 1977 mad 166. 1976 indlaw mad 380. he also placed reliance upon some more decisions viz ritz hotel ltd 1989. rpc 333philosophy di alberta ferretti 2003 r p c 15. keystone knitting mills trade mark1929 1 ch. d 92 and motor terms company pty limited v. liberty insurance ltd 1967 116 c l r 177 learned counsel for the first respondent further submitted that the affidavit dated july 142004 was not placed by the appellant before the ipab nor any reference of the said affidavit has been made in the written submissions before the ipab and the appellant also did not make any effort to amend the pleadings that the first respondent was not an aggrieved person. it was contended by mr vaibhav gaggar that even otherwise in view of the fraud perpetrated by the appellant qua the registrations in question the issue as to whether the first respondent had a dispute with the trade mark or not pales into insignificance as the primary duty of the court is to maintain the purity of the register. he argued that in a case such as the present one since the allegations against the appellant relate to trafficking squatting and non user the scope of person aggrieved has to be enlarged. learned counsel submitted that the fact that the appellant continues to allege and that stance has not changed in the pleadings in slp as well that the first respondent is an infringer pilfriger defrauder someone who wants to ride on the goodwill of the appellant or someone who wants to mislead the public at large there is no question of the first respondent ceasing to be a person aggrieved at any stage. vaibhav gaggar learned counsel for the first respondent contended that the appellant is registered as a manufacturer and trader under classes 79 and 16 even though it is a company engaged in software only. moreover there is nothing on record to indicate linkage with the manufacturing or marketing of the goods for which the appellant is holding registration of subject trade marks. he vehemently contended that goods in classes 79 and 16 for which the appellant obtained registration were never used in the manner contemplated by the 1958 act for almost 30 years and that would show the mala fide intention of the appellant in having the same registered for the purpose of squatting and trafficking. learned counsel for the first respondent further argued that infosys is not an invented or a coined word the said word is an abbreviation and combination of the words information system the word infosys has been used by various companies abroad as well as within india prior to incorporation of the appellant itself and hence can not be called an invented word. in this regard he relied upon a decision of the madras high court in nestle 's products india. ltd v. p thankaraja. anr air 1978 mad 336 he submitted that appellant is primarily in service industry which is unregistrable under the 1958 act and since the appellant is not trading in the goods in respect of which it is registered it can not be said that the mark of the appellant is distinctive of its goods. in any case learned counsel would submit that the expression infosys is not descriptive expression. insofar as discretion exercised by ipab in ordering removal of the appellant 's registrations from the register under section 461b of the 1958 act is concerned learned counsel for the first respondent submitted that this court should not overturn the discretion so exercised by the ipab keeping in view the dishonest and fraudulent conduct of the appellant. lastly he submitted that although no cross objections or cross appeal has been filed the first respondent has some grievance with regard to the order of the ipab in not considering the case set up in the rectification removal applications particularly with regard to section 56 of the 1958 act. having regard to the order that we intend to make we are not persuaded to accept the objection raised on behalf of the first respondent that present appeal preferred directly before this court from the impugned order passed by the ipab is not maintainable and must be dismissed as such. pertinently the notice was issued in the petitions for special leave to appeal to the respondents on november 12004 in response to the said notice the first respondent filed counter affidavit before this court on march 112005 wherein no specific objection about invocation of jurisdiction of this court directly has been taken. in the counter affidavit a very vague objection in the following terms was raised that the present petition apart from being false and misconceived lacks the necessary jurisdiction hence deserves outright rejection. we are afraid this is hardly an objection about maintainability. apart from it on september 122005 after hearing both parties special leave was granted by this court. in the backdrop of these peculiar facts in our view it is not appropriate to relegate the 17 appellant at this distance of time to challenge the impugned order passed by the ipab in writ petition before the high court. the objection about maintainability of the appeals is accordingly overruled. the moot question which has been debated before us is whether or not the first respondent is an aggrieved person. that the first respondent filed composite applications under sections 46 and 56 of the 1958 act for rectification removal of the trade mark infosys registered in classes 79 and 16 is not in dispute. sections 46 and 56 read as follows s 46 removal from register and imposition of limitations on ground of non use 1 subject to the provisions of section. 47a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a high court or to the registrar by any person aggrieved on the ground either a that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or in a case to which the provisions of section 45 apply by the company concerned and that there has in fact been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application or b that up to a date one month before the date of the application a continuous period of five years or longer had elapsed during which the trade mark was registered 18 and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being provided that except where the applicant has been permitted under sub section 3 of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark the tribunal may refuse an application under clause a or clause b in relation to any goods if it is shown that there has been before the relevant date or during the relevant period as the case may be bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description being goods in respect of which the trade mark is registered. 2 where in relation to any goods in respect of which a trade mark is registered a the circumstances referred to in clause 1 of sub section 1 are shown to exist so far as regards non use of the trade mark in relation to goods to be sold or otherwise traded in in a particular place in india otherwise than for export from indiaor in relation to goods to be exported to a particular market outside india and b a person has been permitted under sub section 3 of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold or otherwise traded in or in relation to goods to be so exported or the tribunal is of opinion that he might properly be permitted so to register such a trade mark on application by that person in the prescribed manner to a high court or to the registrar the tribunal may impose on the registration of the first mentioned trade mark such limitations as it thinks proper for securing that that registration shall cease to extend to such use 19 3. an applicant shall not be entitled to rely for the purpose of clause b of sub section 1 or for the purposes of sub section 2 on any non use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates. s 56 power to cancel or vary registration and to rectify the register 1. on application made in the prescribed manner to a high court or to the registrar by any person aggrieved the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention or failure to observe a condition entered on the register in relation thereto. any person aggrieved by the absence or omission from the register of any entry or by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register or by any error or defect in any entry in the register may apply in the prescribed manner to a high court or to the registrar and the tribunal may make such order for making expunging or varying the entry as it may think fit. the tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. the tribunal of its own motion may after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard make any order referred to in sub section 1 or sub section 2. any order of the high court rectifying the register shall direct that notice of the rectification shall be served upon the registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. the power to rectify the register conferred by this section shall include the power to remove a trade mark registered in part a of the register to part b of the register. the position that emerges from the above provisions is this. whether the application is under section 46 or under section 56 or a composite application under both sections it is a pre requisite that the applicant must be a person aggrieved. section 461 of the 1958 act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in clause a andor clause b to be an aggrieved person under section 46he must be one whose interest is affected in some possible way it must not be a fanciful suggestion of grievance. a likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi. in kerly 's law of trade marks and trade names 11th edition at page 166the legal position with regard to person aggrieved has been summarized thus the persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed where it is a question of removal from the register including all persons who would be substantially damaged if the mark remained and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled. we accept the above statement of law. insofar as section 56 is concerned it provides for varying situations in which the person aggrieved may apply for rectification of the registered trade mark from the register. although both sections namely sections 46 and 56 require person aggrieved to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register the expression person aggrieved for the purposes of these two sections has different connotations. the interpretation of the expression person aggrieved occurring in sections 46 and 56 has come up for consideration before this court on more than one occasion. in hardie trading ltd 2003 indlaw sc 756 2003 11 scc 92this court stated as follows the phrase person aggrieved is a common enough statutory precondition for a valid complaint or appeal. the phrase has been variously construed depending on the context in which it occurs. three sections viz sections 4656 and 69 of the act contain the phrase. section 46 deals with the removal of a registered trade mark from the register on the ground of non use. this section presupposes that the registration which was validly made is liable to be taken off by subsequent non user. section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made. the situations covered by this section include a the contravention or failure to observe a condition for registration b the absence of an entry c an entry made without sufficient cause d a wrong entry and e any error or defect in the entry. such type of actions are commenced for the purity of the register which it is in public interest to maintain. applications under sections 46 and 56 may be made to the registrar who is competent to grant the relief. persons aggrieved may also apply for cancellation or varying an entry in the register relating to a certification trade mark to the central government in certain circumstances. since we are not concerned with a certification trade mark the process for registration of which is entirely different we may exclude the interpretation of the phrase person aggrieved occurring in section 69 from consideration for the purposes of this judgment. in our opinion the phrase person aggrieved for the purposes of removal on the ground of non use under section 46 has a different connotation from the phrase used in section 56 for cancelling or expunging or varying an entry wrongly made or remaining in the register. in the latter case the locus standi would be ascertained liberally since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed. it was in this sense that the house of lords defined person aggrieved in the matter of powell 's trade mark although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct and to exclude a mere common informer it is undoubtedly of public interest that they should not be unduly limited inasmuch as it is a public mischief that there should remain upon the register a mark which ought not to be there and by which many persons may be affected who nevertheless would not be willing to enter upon the risk and expense of litigation. whenever it can be shown as here that the applicant is in the same trade as the person who has registered the trade mark and wherever the trade mark if remaining on the register would or might limit the legal rights of the applicant so that by reason of the existence of the entry on the register he could not lawfully do that which but for the existence of the mark upon the register he could lawfully do it appears to me he has a locus standi to be heard as a person aggrieved. but if the ground for rectification is merely based on non user i e under section 46 of the act that is not really on account of any public mischief by way of an incorrect entry. the non user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal. an applicant must therefore show that in some possible way he may be damaged or injured if the trade mark is allowed to stand and by possible i mean possible in a practical sense and not merely in a fantastic view. all cases of this kind where the original registration is not illegal or improper ought to be considered as questions of common sense to a certain extent at any rate and i think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged. it certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them. addisons application was one under section 46 and the test to determine whether the applicant was a person aggrieved within the meaning of that section should have been the one laid down by romer j in wright case and not the one propounded by the house of lords in the matter of powell 's trade mark. the high court and the joint registrar fell into error in not drawing this distinction. however it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of section 46 viz the alleged non use of the trade marks by hardie and special circumstances. in the case of hardie trading ltd 2003 indlaw sc 756 1this court approved the test applied by romer j in the royal baking powder company v wright crossley and co 1898. 15 rpc 677which has been reproduced in the report. we respectfully agree. hardie trading ltd 2003 indlaw sc 756 1 has been followed by this court in a recent decision in the case of kabushiki kaisha toshiba 2008 10 scc 766 2008 indlaw sc 1395. this court stated that section 46 speaks for private interest while section 56 speaks of a public interest. it is true that the appellant in opposition to the applications for removal rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. obviously in the absence of any specific objection by the appellant to that effect no specific issue was framed by the high court whether the applicant was an aggrieved person. the applications having been transferred to the ipab in terms of section 100 of the 1999 act the ipab examined the matter in light of the issues that were framed by the high court although in the written submissions before it the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events particularly change of the name of the first respondent from jupiter infosys ltd to jupiter international ltd the question is whether in these circumstances it was incumbent upon the ipab to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. in our considered view it was. in the first place when the first respondent applied for rectification removal in respect of three registrations in classes 79 and 16it must have shown in respect of each of them that it is a person aggrieved and the ipab must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. secondly and more importantly during the pendency of the applications certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of section 46 1 of the 1958 act is concerned. in the affidavit filed by the first respondent on july 142004 before the court of additional district judge delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff appellant herein and defendant first respondent herein under the trade mark and that defendant has already changed the trade mark namely jupiter international ltd in place of jupiter infosys ltd in terms of section 461not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the ipab must also be satisfied before it directs the removal of registered trade mark that the applicant is an aggrieved person before it invokes the power in directing the removal of the 26 registered trade mark. this is so because the pre requisite for exercise of power under section 461 is that the applicant is a person aggrieved. the question then arises whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification removal application is finally decided. in our view the grievance of the applicant when he invokes section 461 must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. if during the pendency of such application the applicant 's cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason there may not be any justification for rectification as the registered trade mark can not be said to operate prejudicially to his interest. in re apollinaris company 's trade marks while dealing with this aspect kekemich j stated because that is a remedy given to the person aggrieved through the interposition of the court for the benefit of the 14 1891 2 ch 186 27 applicant and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the court will rectify the register at his instance when it can do him no good to rectify and when the retention on the register can do him no harm merely because at the date of his application he may have had some grievance. we concur with the above statement. in the circumstances we are satisfied that the applications made by the first respondent for rectification removal of the subject trade marks from the register need to be considered afresh by the ipab in accordance with law and the observations made above. since the first respondent has also grievance in connection with the impugned order particularly with regard to non consideration of its case under section 56 of the 1958 act we refrain from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the ipab. in view of the above these appeals are allowed in part and the impugned order dated september 92004 is set aside. the applications being tra nos 25 to 27 of 2003 op nos 764 to 766 of 2001 are restored to the file of intellectual property appellate board chennai for hearing and disposal afresh in accordance with law. the parties shall bear their own costs. appeals allowed.

FACTS the appellant is infosys technologies limited. it was incorporated and registered under the companies act,1956 on july 2,1981 in the name of infosys consultants private limited. the appellant got the trade mark 'infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery,computer manuals,printed manual for computer instruction and teaching materials; computer hardwares,computer interface,computer peripherals,electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors (not for land vehicles). on april 21,1992,the name of the company infosys consultants pvt.limited was changed to infosys technologies pvt.ltd.and thereafter on june 2,1992,the name was changed to the present name,i.e.infosys technologies limited. the first respondent is jupiter infosys limited. the first respondent was incorporated and registered in september 1978 under the name of jupiter agencies pvt.limited. the name of the first respondent was changed to jupiter infosys (p) limited in august,1995 and now since july,2003,the name is changed to jupiter international limited. on october 11,1996,the appellant instituted a suit in the calcutta high court for perpetual injunction,inter alia,restraining the first respondent from infringing the appellant's mark 'infosys' by using the mark 'infosys' by itself or in combination with other marks in course of its trade. the appellant also prayed for an interim order in the suit. on november 22,1996,the calcutta high court by an ad-interim order restrained the first respondent from using the word 'infosys' in any manner in relation to the goods for the time being. the ad-interim order was confirmed on november 29,1996. the appellant having come to know of several instances of misuse of mark 'infosys' also filed a writ petition before the calcutta high court,inter alia,praying that the registrar of companies be restrained from registering the companies bearing the name 'infosys'. on september 13,2000,the calcutta high court restrained the department of company affairs and registrar of companies from incorporating any company bearing the name 'infosys' without the permission of the appellant. in january 2001,the appellant filed yet another suit before the high court of judicature at madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the initial public offer (ipo) using 'infosys'. the first respondent then filed three separate applications before the madras high court,inter alia,under sections 46 and 56 of the trade and merchandise marks act,1958. the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark no.475269 in class 16 while in the other two applications being,the first respondent prayed for removal/rectification of trade mark no.475267 in class 9 and trade mark no.484837 in class 7 respectively. ARGUMENT assailing the finding of the ipab as regards non-use by the appellant during the relevant period,learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise. he contended that the ipab erred in holding that software was a 'service' and the subject registrations were in relation to goods without considering the wide definition of 'goods' provided under section 2(g) of the 1958 act. mr.akhil sibal argued that the ipab committed grave error in relying upon the provisions of the 1999 act and the trade marks rules,2002 when these provisions were not applicable as the applications were filed under the 1958 act. the ipab sought to rely upon 'computer programming' which is a 'service' enumerated in class 42,without considering the distinction between a 'computer programme' and 'computer programming' and without noticing the entry 'computer' under class 9 which falls within 'goods'. learned counsel would submit that in examining the question of non-use under section 46(1)(b),the ipab failed to consider that the requisite use must be 'in relation to goods' under registration,which is extensively defined under section 2(2)(b) of the 1958 act. the plea of 'aggrieved person' is a new plea and raised substantially for the first time before this court. he argued that the appellant has not taken the plea of the first respondent not being a 'person aggrieved' with respect to filing of the applications for rectification before the ipab; merely urging the plea that the first respondent has no locus standi in the written submissions before the ipab is not sufficient. learned counsel would submit that the appellant has,for the first time,argued before this court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods. ISSUE (a) whether the mark applied for registration was used in respect of the goods for which the mark was registered? (b) whether the respondent had a bonafide intention to use the mark applied for under section 18 of the trade and merchandise marks act? (c) whether the mark registered in favour of the respondent is a service mark? (d) whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month. (e) whether the registered trade mark is disentitled for protection in a court of law under section 11(e) of the trade and merchandise marks act? (f) whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c)? (g) whether the respondent has committed fraud while obtaining registration of the mark? (h)to what further relief? ANALYSIS whether the application is under section 46 or under section 56 or a composite application under both sections,it is a pre-requisite that the applicant must be a person aggrieved. section 46(1) of the 1958 act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in clause (a) and/or clause (b). to be an aggrieved person under section 46,he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance. a likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi. in kerly's law of trade marks and trade names (11th edition) at page 166,the legal position with regard to 'person aggrieved' has been summarized thus the persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed where it is a question of removal from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled. the court accept the above statement of law. sections 46 and 56 require 'person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register,the expression 'person aggrieved' for the purposes of these two sections has different connotations. in hardie trading ltd 2003 indlaw sc 756.(2003) 11 scc 92),this court stated that the phrase "person aggrieved" is a common enough statutory precondition for a valid complaint or appeal. the phrase has been variously construed depending on the context in which it occurs. three sections viz.sections 46,56 and 69 of the act contain the phrase. section 46 deals with the removal of a registered trade mark from the register on the ground of non-use. this section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user. section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made. but if the ground for rectification is merely based on non-user i.e.under section 46 of the act,that is not really on account of any public mischief by way of an incorrect entry. the non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal. an applicant must therefore show that in some possible way he may be damaged or injured if the trade mark is allowed to stand. addisons' application was one under section 46 and the test to determine whether the applicant was a "person aggrieved" within the meaning of that section should have been the one laid down by romer,j.in wright case and not the one propounded by the house of lords in the matter of powell's trade mark. in a recent decision in the case of kabushiki kaisha toshiba (2008) 10 scc 766) 2008 indlaw sc 1395, this court stated that section 46 speaks for private interest while section 56 speaks of a public interest. in the first place,when the first respondent applied for rectification/removal in respect of three registrations in classes 7,9 and 16,it must have shown in respect of each of them that it is a 'person aggrieved' and the ipab must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. during the pendency of the applications,certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of section 46 (1) of the 1958 act is concerned. in terms of section 46(1),not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the ipab must also be satisfied,before it directs the removal of registered trade mark,that the applicant is an aggrieved person before it invokes the power in directing the removal of the 26 registered trade mark. this is so because the pre-requisite for exercise of power under section 46(1) is that the applicant is a person aggrieved. in the circumstances, the court was satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the ipab in accordance with law and the observations made above. since the first respondent has also grievance in connection with the impugned order particularly with regard to non-consideration of its case under section 56 of the 1958 act, the court refrained from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the ipab. STATUTE s.46 of the trade and merchandise marks act - removal from register and imposition of limitations on ground of non-use. s.56 of the trade and merchandise marks act -power to cancel or vary registration and to rectify the register.

FACTS the appellant is infosys technologies limited. it was incorporated and registered under the companies act,1956 on july 2,1981 in the name of infosys consultants private limited. the appellant got the trade mark 'infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery,computer manuals,printed manual for computer instruction and teaching materials; computer hardwares,computer interface,computer peripherals,electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors (not for land vehicles). on april 21,1992,the name of the company infosys consultants pvt.limited was changed to infosys technologies pvt.ltd.and thereafter on june 2,1992,the name was changed to the present name,i.e.infosys technologies limited. the first respondent is jupiter infosys limited. the first respondent was incorporated and registered in september 1978 under the name of jupiter agencies pvt.limited. the name of the first respondent was changed to jupiter infosys (p) limited in august,1995 and now since july,2003,the name is changed to jupiter international limited. on october 11,1996,the appellant instituted a suit in the calcutta high court for perpetual injunction,inter alia,restraining the first respondent from infringing the appellant's mark 'infosys' by using the mark 'infosys' by itself or in combination with other marks in course of its trade. the appellant also prayed for an interim order in the suit. on november 22,1996,the calcutta high court by an ad-interim order restrained the first respondent from using the word 'infosys' in any manner in relation to the goods for the time being. the ad-interim order was confirmed on november 29,1996. the appellant having come to know of several instances of misuse of mark 'infosys' also filed a writ petition before the calcutta high court,inter alia,praying that the registrar of companies be restrained from registering the companies bearing the name 'infosys'. on september 13,2000,the calcutta high court restrained the department of company affairs and registrar of companies from incorporating any company bearing the name 'infosys' without the permission of the appellant. in january 2001,the appellant filed yet another suit before the high court of judicature at madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the initial public offer (ipo) using 'infosys'. the first respondent then filed three separate applications before the madras high court,inter alia,under sections 46 and 56 of the trade and merchandise marks act,1958. the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark no.475269 in class 16 while in the other two applications being,the first respondent prayed for removal/rectification of trade mark no.475267 in class 9 and trade mark no.484837 in class 7 respectively. ARGUMENT assailing the finding of the ipab as regards non-use by the appellant during the relevant period,learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise. he contended that the ipab erred in holding that software was a 'service' and the subject registrations were in relation to goods without considering the wide definition of 'goods' provided under section 2(g) of the 1958 act. mr.akhil sibal argued that the ipab committed grave error in relying upon the provisions of the 1999 act and the trade marks rules,2002 when these provisions were not applicable as the applications were filed under the 1958 act. the ipab sought to rely upon 'computer programming' which is a 'service' enumerated in class 42,without considering the distinction between a 'computer programme' and 'computer programming' and without noticing the entry 'computer' under class 9 which falls within 'goods'. learned counsel would submit that in examining the question of non-use under section 46(1)(b),the ipab failed to consider that the requisite use must be 'in relation to goods' under registration,which is extensively defined under section 2(2)(b) of the 1958 act. the plea of 'aggrieved person' is a new plea and raised substantially for the first time before this court. he argued that the appellant has not taken the plea of the first respondent not being a 'person aggrieved' with respect to filing of the applications for rectification before the ipab; merely urging the plea that the first respondent has no locus standi in the written submissions before the ipab is not sufficient. learned counsel would submit that the appellant has,for the first time,argued before this court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods. ISSUE (a) whether the mark applied for registration was used in respect of the goods for which the mark was registered? (b) whether the respondent had a bonafide intention to use the mark applied for under section 18 of the trade and merchandise marks act? (c) whether the mark registered in favour of the respondent is a service mark? (d) whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month. (e) whether the registered trade mark is disentitled for protection in a court of law under section 11(e) of the trade and merchandise marks act? (f) whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c)? (g) whether the respondent has committed fraud while obtaining registration of the mark? (h)to what further relief? ANALYSIS whether the application is under section 46 or under section 56 or a composite application under both sections,it is a pre-requisite that the applicant must be a person aggrieved. section 46(1) of the 1958 act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in clause (a) and/or clause (b). to be an aggrieved person under section 46,he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance. a likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi. in kerly's law of trade marks and trade names (11th edition) at page 166,the legal position with regard to 'person aggrieved' has been summarized thus the persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed where it is a question of removal from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled. the court accept the above statement of law. sections 46 and 56 require 'person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register,the expression 'person aggrieved' for the purposes of these two sections has different connotations. in hardie trading ltd 2003 indlaw sc 756.(2003) 11 scc 92),this court stated that the phrase "person aggrieved" is a common enough statutory precondition for a valid complaint or appeal. the phrase has been variously construed depending on the context in which it occurs. three sections viz.sections 46,56 and 69 of the act contain the phrase. section 46 deals with the removal of a registered trade mark from the register on the ground of non-use. this section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user. section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made. but if the ground for rectification is merely based on non-user i.e.under section 46 of the act,that is not really on account of any public mischief by way of an incorrect entry. the non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal. an applicant must therefore show that in some possible way he may be damaged or injured if the trade mark is allowed to stand. addisons' application was one under section 46 and the test to determine whether the applicant was a "person aggrieved" within the meaning of that section should have been the one laid down by romer,j.in wright case and not the one propounded by the house of lords in the matter of powell's trade mark. in a recent decision in the case of kabushiki kaisha toshiba (2008) 10 scc 766) 2008 indlaw sc 1395, this court stated that section 46 speaks for private interest while section 56 speaks of a public interest. in the first place,when the first respondent applied for rectification/removal in respect of three registrations in classes 7,9 and 16,it must have shown in respect of each of them that it is a 'person aggrieved' and the ipab must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. during the pendency of the applications,certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of section 46 (1) of the 1958 act is concerned. in terms of section 46(1),not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the ipab must also be satisfied,before it directs the removal of registered trade mark,that the applicant is an aggrieved person before it invokes the power in directing the removal of the 26 registered trade mark. this is so because the pre-requisite for exercise of power under section 46(1) is that the applicant is a person aggrieved. in the circumstances, the court was satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the ipab in accordance with law and the observations made above. since the first respondent has also grievance in connection with the impugned order particularly with regard to non-consideration of its case under section 56 of the 1958 act, the court refrained from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the ipab. STATUTE s.46 of the trade and merchandise marks act - removal from register and imposition of limitations on ground of non-use. s.56 of the trade and merchandise marks act -power to cancel or vary registration and to rectify the register.

leave granted. these appeals have been preferred from the judgment and order of the high court dated 25 11 2009 in writ petitions civil no 464572009. the appellants challenge the acquisition of their agricultural lands by the state of uttar pradesh for the construction of the district jail of shahjahanpur. the appellants themselves are bhumidar with transferable rights and are residents of village murchha tehsil puwayan in the district of shahjahanpur uttar pradesh. the state of uttar pradesh vide its office memorandum dated 25 10 2004 constituted a committee under the chairmanship of the honourable minister of revenue to suggest its recommendations for transfer of prisons situated in the congested areas of various districts. after conducting its second and final meeting on 10th. january2005the said committee recommended to the state government the shifting of the district jails from congested areas to outside the city limits within the district. as per the schedule this shifting was to be done in two phases 1 st phase 1 district jail shahjahanpur 2 district jail azamgarh 3 district jail jaunpur and 4 district jail moradabad 2 nd phase 1 district jail badaun 2 district jail varanasi 3 district jail barielly and 4 district jail muzaffarnagar. the existing district jail of shahjahanpur constructed in 1870was one of the oldest and required shifting to new premises. the government case is that the district jail is located in a densely populated area of the city and is overcrowded housing as many as 1869 prisoners while having a capacity of only 511. thereafter the state government constituted a committee under the chairmanship of chief secretary government of u p vide office memorandum dated 12 9 2007 to evaluate and consider the shifting of prisons identified to be shifted in the first phase. prisons in the districts of lucknow moradabad were added to the list. this committee was also to evaluate and recommend the means for modernisation of existing old prisons. in its meeting dated 10 10 2007 the committee recommended that a detailed project report dpr be prepared by the rajkiya nirman nigam and that acquisition of lands for shifting of the prisons be done on a priority basis. these recommendations were accepted by the state government vide the approval of the cabinet dated 7 12 2007 following this decision the director general of prisons administration and reformsuttar pradesh vide letter dated 04 06 2008requested the district magistrate shahjahanpur to send all the relevant records to the state government for publication of notification u ss 41 and 17 of the land acquisition act1894 hereinafter the act the land suggested for such acquisition by the divisional land utility committee was. one admeasuring 25 89 hectares 63 93 acres in village morchha tehsil puwayan in the district of shahjahanpur. thereafter the district magistrate shahjahanpur forwarded the proposal to the commissioner and director directorate of land acquisition revenue board uttar pradeshfor the issuance of notifications u ss 41 and 17 of the act which in turn approved of it and further forwarded the recommendation to the state government vide letter dated 2 07 2008. thus the state government issued notifications u ss 41 and 17 on 21 08 2008. however the provisions of section 5a inquiry were dispensed with. the state government explained that this was done in view of the pressing urgency in the matter of construction of the jails. being aggrieved by the aforesaid notifications the appellants moved a writ petition before the high court u art 226 of the constitution of india. the high court in its decision dated 25 11 2009 refused to interfere with the selection of the site for the construction of the jail premises on the ground that it was not required to do so unless it found the selection of the site was wholly arbitrary. the high court also approved the invoking of emergency provisions u s 17 of the act as per the guidelines given in essco fabs private limited and another vs state of haryana and another. 2 scc 377 2008 indlaw sc 2494 having thus stated the high court dismissed the writ petition. before this court the appellants broadly raised the following arguments 1 whether or not the state government was justified in acquiring the said pieces of fertile agricultural land when there were alternative sites of unfertile banjar land available. 2 whether or not the state government was justified in dispensing with the inquiry which is mandated to be conducted under section 5a of the act especially when one year elapsed between the notifications u s 4 and the one u s 6 they further stated that the high court had erred insofar as it upheld the factum of urgency in the absence of a categorical finding an enquiry under section 5a would have been detrimental to public interest. it was urged that it was clear from the counter of the respondent that the contemplation of a new prison was under consideration of the state government for several years. committee was formed matter was discussed at a leisurely pace at various levels and there is no material fact to justify the abridgement of the appellants right of raising an objection to acquisition and of a hearing under section 5a of the act. this court finds a lot of substance in the contentions of the appellants. in connection with land acquisition proceeding whenever the provision of s 17 and its various sub sections including s 174 is used in the name of taking urgent or emergent action and the right of hearing of the land holder under section 5a is dispensed with the court is called upon to consider a few fundamentals in the exercise of such powers. admittedly the land acquisition act a pre constitutional legislation of colonial vintage is a drastic law being expropriatory in nature as it confers on the state a power which affects person 's property right. even though right to property is no longer fundamental and was never a natural right and is acquired on a concession by the state it has to be accepted that without right to some property other rights become illusory. this court is considering these questions especially in the context of some recent trends in land acquisition. this court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare state. the concept of public purpose can not remain static for all time to come. the concept even though sought to be defined u s 3f of the act is not capable of any precise definition. the said definition having suffered several amendments has assumed the character of an inclusive one. it must be accepted that in construing public purpose a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. any attempt by the state to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose. even though the concept of public purpose was introduced by pre constitutional legislation its application must be consistent with the constitutional ethos and especially the chapter under fundamental rights and also the directive principles. in construing the concept of public purpose the mandate of art 13 of the constitution that any pre constitutional law can not in any way take away or abridge rights conferred under part iii must be kept in mind. by judicial interpretation the contents of these part iii rights are constantly expanded. the meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of part iii rights. the open ended nature of our constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio economic reality in this country. therefore the concept of public purpose on this broad horizon must also be read into the provisions of emergency power u s 17 with the consequential dispensation of right of hearing under section 5a of the said act. the courts must examine these questions very carefully when little indians lose their small property in the name of mindless acquisition at the instance of the state. if public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition the courts before sanctioning an acquisition must in exercise of its power of judicial review focus its attention on the concept of social and economic justice. while examining these questions of public importance the courts especially the higher courts cannot afford to act as mere umpires. in this context we reiterate the principle laid down by this court in authorised officer thanjavur and another vs s naganatha. ayyar and others reported in 1979 3 scc 466 1979 indlaw sc 224wherein this court held it is true that judges are constitutional invigilators and statutory interpreters but they are also responsive and responsible to part iv of the constitution being one of the trinity of the nation 's appointed instrumentalities in the transformation of the socio economic order. the judiciary in its sphere shares the revolutionary purpose of the constitutional order and when called upon to decode social legislation must be animated by a goal oriented approach. this is part of the dynamics of statutory interpretation in the developing countries so that courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. this caveat has become necessary because the judiciary is not a mere umpire as some assume but an activist catalyst in the constitutional scheme. in other words public purpose must be viewed through the prism of constitutional values as stated above. the aforesaid principles in our jurisprudence compel this court to construe any expropriartory legislation like the land acquisition act very strictly. the judicial pronouncements on this aspect are numerous only a few of them may be noted here. in dlf qutab enclave complex educational charitable trust vs state of haryana and ors 2003 5 scc 622 2003 indlaw sc 124this court construed the statute on town planning law and held expropriatory statute as is well known must be strictly construed. the same principle has been reiterated subsequently by a three judge bench of this court in state of maharashtra and anr vs. b e billimoria and ors 2003 7 scc 336 2003 indlaw sc 618 in the context of ceiling law. these principles again found support in the decision of this court in chairman indore vikas pradhikaran vs pure industrial coke and chemicals. ltd and ors 2007. 8 scc 705 2007 indlaw sc 554wherein this court construed the status of a person 's right to property after deletion of art 191f from part iii by referring to various international covenants namely the declaration of human and civil rights this court held that even though right to property has ceased to be a fundamental right but it would however be given an express recognition as a legal right and also as a human right. while discussing the ambit and extent of property right this court reiterated that expropriatory legislation must be given strict construction. in the background of the aforesaid discussion this court proceeds to examine the scope of a person 's right under section 5a of the act. initially section 5a was not there in the land acquisition act1894 but the same was inserted long ago by the land acquisition amendment act1923 vide s 3 of act 38 of 1923. the history behind insertion of section 5a in the act of 1894 seems to be a decision of the division bench of calcutta high court in j e d ezra vs the secretary of state for india and ors reported in 7 c w n 249 in that case the properties of ezra were sought to be acquired under the pre amended provision of the act for expansion of the offices of the bank of bengal. in challenging the said acquisition it was argued that the person whose property is going to be taken away should be allowed a hearing on the principles of natural justice. however the judges found that there was no such provision in the act. in order to remedy this shortcoming in the act of 1894an amendment by way of incorporation of section 5a was introduced on 11th july1923 the statement of objects and reasons for the said amendment is as follows the land acquisition act i of 1894 does not provide that persons having an interest in land which it is proposed to acquire shall have the right of objecting to such acquisition nor is government bound to enquire into and consider any objections that may reach them. the object of this bill is to provide that a local government shall not declare u s 6 of the act that any land is needed for a public purpose unless time has been allowed after the notification u s 4 for persons interested in the land to put in objections and for such objections to be considered by the local government. gazette of india pt. v dated 14th july1923. the said amendment was assented to by the governor general on 5th august1923 and came into force on 1st january1924. the importance and scheme of section 5a was construed by this court in several cases. as early as in 1964this court in nandeshwar prasad and ors vs. u p government and ors. air 1964 sc 1217 1963 indlaw sc 141 speaking through justice k n wanchoo as his lordship then was. the right to file objections under section 5a is a substantial right when a person 's property is being threatened with acquisition and we can not accept that that right can be taken away as if by a side wind. in that case the court was considering the importance of rights under section 5a vis vis s 171 and s 171. a of the act. the same view has been reiterated by another three judge bench decision of this court in munshi singh and ors. union of india 1973 2 scc 337 1972 indlaw sc 176 in para 17 of the report this court held that section 5a embodies a very just and wholesome principle of giving proper and reasonable opportunity to a land loser of persuading the authorities that his property should not be acquired. this court made it clear that declaration u s 6 has to be made only after the appropriate government is satisfied on a consideration of the report made by the collector under section 5a the court however made it clear that only in a case of real urgency the provision of section 5a can be dispensed with. in hindustan petroleum corporation limited vs darius shahpur chennai and ors. 2005 7 scc 627 2005 indlaw sc 578this court held that the right which is conferred under section 5a has to be read considering the provisions of article 300 a of the constitution and so construed the right under section 5a should be interpreted as being akin to a fundamental right. this court held that the same being the legal position the procedures which have been laid down for depriving a person of the said right must be strictly complied with. in a recent judgment of this court in essco fabs 2008 indlaw sc 2494 supra2009 2 scc 377this court after considering previous judgments as also the provisions of s 17 of the act held whereas sub s 1 of s 17 deals with cases of urgencysub s 2 of the said section covers cases of sudden change in the channel of any navigable river or other unforeseen emergency. but even in such cases i e cases of urgency or unforeseen emergencyenquiry contemplated by section 5 a can not ipso facto be dispensed with which is clear from sub s 4 of s 17 of the act. this court therefore held that once a case is covered under sub s 1 or 2 of section 17sub s 4 of s 17 would not necessarily apply. in our opinion therefore the contention of learned counsel for the respondent authorities is not well founded and can not be upheld that once a case is covered by sub ss 1 or 2 of s 17 of the act sub s 4 of s 17 would necessarily apply and there is no question of holding inquiry or hearing objections under section 5 a of the act. acceptance of such contention or upholding of this argument will make sub s 4 of s 17 totally otiose redundant and nugatory. this court also held that in view of the ratio in union of india vs mukesh hans2004 8 scc 14 2004 indlaw sc 1413sub s 4 of s 17 can not be pressed into service by officers who are negligent and lethargic in initiating acquisition proceedings. the question is whether in the admitted facts of this case invoking the urgency clause u s 17 4 is justified. in the writ petition before the high court the petitioners have given the details of the land holding and it has also been stated that the entire holding of petitioners 25791011 and 13 have been acquired and as a result of such acquisition the petitioners have become landless. from the various facts disclosed in the said affidavit it appears that the matter was initiated by the government 's letter dated 4th of june2008 for issuance of s 41 and s 17 notifications. a meeting for selection of the suitable site for construction was held on 27th june2008and the proposal for such acquisition and construction was sent to the director land acquisition on 2nd of july2008 this was in turn forwarded to the state government by the director on 22nd of july2008 after due consideration of the forwarded proposal and documents the state government issued the s 4 notification along with s 17 notification on 21st of august2008 these notifications were published in local newspapers on 24th of september2008. thereafter over a period of 9 months the state government deposited 10 of compensation payable to the landowners along with 10 of acquisition expenses and 70 of cost of acquisition was deposited and the proposal for issuance of s 6 declaration was sent to the director land acquisition on 19th of june2009 the director in turn forwarded all these to the state government on 17th july2009and the state government finally issued the s 6 declaration on 10th of august2009 this declaration was published in the local dailies on 17th of august2009. thus the time which elapsed between publication of s 41 and s 17 notifications and s 6 declaration in the local newspapers is of 11 months and 23 days i e almost one year. this slow pace at which the government machinery had functioned in processing the acquisition clearly evinces that there was no urgency for acquiring the land so as to warrant invoking s 17 4 of the act. in paragraph 15 of the writ petition it has been clearly stated that there was a time gap of more than 11 months between s 4 and s 6 notifications which demonstrates that there was no urgency in the state action which could deny the petitioners their right under section 5a in the counter which was filed in this case by the state before the high court it was not disputed that the time gap between s 4 notification read with section 17and s 6 notification was about 11 months. the construction of jail is certainly in public interest and for such construction land may be acquired. but such acquisition can be made only by strictly following the mandate of the said act. in the facts of this case such acquisition can not be made by invoking emergency provisions of s 17 if so advised government can initiate acquisition proceeding by following the provision of section 5a of the act and in accordance with law. for the reasons aforesaid we hold that the state government was not justified in the facts of this case to invoke the emergency provision of s 174 of the act. the valuable right of the appellants under section 5a of the act can not flatten and steamrolled on the ipsi dixit of the executive authority. the impugned notifications u ss 4 and 6 of the act in so far as they relate to the appellants land are quashed. the possession of the appellants in respect of their land can not be interfered with except in accordance with law. the appeals are allowed. no order as to costs. appeals allowed.

FACTS the appellants challenge the acquisition of their agricultural lands by the state of uttar pradesh for the construction of the district jail of shahjahanpur. the appellants themselves are bhumidar with transferable rights and are residents of village murchha,tehsil puwayan in the district of shahjahanpur,uttar pradesh. the state of uttar pradesh vide its office memorandum dated 25.10.2004 constituted a committee under the chairmanship of the hon'ble minister of revenue to suggest its recommendations for transfer of prisons situated in the congested areas of various districts. after conducting its second and final meeting on 10th. january,2005,the said committee recommended to the state government the shifting of the district jails from congested areas to outside the city limits within the district. following this decision,the director general of prisons (administration and reforms),uttar pradesh,vide letter dated 04.06.2008,requested the district magistrate,shahjahanpur to send all the relevant records to the state government for publication of notification u/ss.4(1) and 17 of the land acquisition act,1894 . the land suggested for such acquisition by the divisional land utility committee was. one admeasuring 25.89 hectares (63.93 acres) in village morchha,tehsil puwayan in the district of shahjahanpur. thereafter,the district magistrate,shahjahanpur forwarded the proposal to the commissioner and director,directorate of land acquisition (revenue board,uttar pradesh),for the issuance of notifications u/ss.4(1) and 17 of the act,which in turn approved of it and further forwarded the recommendation to the state government,vide letter dated 2.07.2008. thus,the state government issued notifications u/ss.4(1) and 17 on 21.08.2008. however,the provisions of section 5a inquiry were dispensed with. the state government explained that this was done in view of the pressing urgency in the matter of construction of the jails. ARGUMENT it was urged that it was clear from the counter of the respondent that the contemplation of a new prison was under consideration of the state government for several years. committee was formed,matter was discussed at a leisurely pace at various levels and there is no material fact to justify the abridgement of the appellants' right of raising an objection to acquisition and of a hearing under section 5a of the act. ISSUE the appellants broadly raised the following arguments: 1.whether or not the state government was justified in acquiring the said pieces of fertile agricultural land,when there were alternative sites of unfertile banjar land available. 2.whether or not the state government was justified in dispensing with the inquiry which is mandated to be conducted under section 5a of the act,especially when one year elapsed between the notifications u/s.4 and the one u/s.6. they further stated that the high court had erred insofar as it upheld the factum of urgency in the absence of a categorical finding,an enquiry under section 5a would have been detrimental to public interest. ANALYSIS in connection with land acquisition proceeding whenever the provision of s.17 and its various sub-sections including s.17(4) is used in the name of taking urgent or emergent action and the right of hearing of the land holder under section 5a is dispensed with,the court is called upon to consider a few fundamentals in the exercise of such powers. admittedly,the land acquisition act,a pre-constitutional legislation of colonial vintage is a drastic law,being expropriatory in nature as it confers on the state a power which affects person's property right. even though right to property is no longer fundamental and was never a natural right,and is acquired on a concession by the state,it has to be accepted that without right to some property,other rights become illusory. the meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of part-iii rights. the open-ended nature of our constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this country. while examining these questions of public importance,the courts,especially the higher courts,cannot afford to act as mere umpires. in other words public purpose must be viewed through the prism of constitutional values as stated above. the aforesaid principles in our jurisprudence compel this court to construe any expropriartory legislation like the land acquisition act very strictly. the judicial pronouncements on this aspect are numerous,only a few of them may be noted here. in dlf qutab enclave complex educational charitable trust vs. state of haryana and ors.(2003) 5 scc 622 2003 indlaw sc 124,this court construed the statute on town planning law and held "expropriatory statute,as is well known,must be strictly construed. the same principle has been reiterated subsequently by a three-judge bench of this court in state of maharashtra and anr.vs. b.e.billimoria and ors.(2003) 7 scc 336 2003 indlaw sc 618 in the context of ceiling law. section 5a was not there in the land acquisition act,1894 but the same was inserted long ago by the land acquisition (amendment) act,1923 vide s.3 of act 38 of 1923. the question is whether in the admitted facts of this case,invoking the urgency clause u/s.17 (4) is justified. in the writ petition before the high court,the petitioners have given the details of the land holding,and it has also been stated that the entire holding of petitioners 2,5,7,9,10,11 and 13 have been acquired,and as a result of such acquisition,the petitioners have become landless. the construction of jail is certainly in public interest and for such construction land may be acquired. but such acquisition can be made only by strictly following the mandate of the said act. in the facts of this case,such acquisition cannot be made by invoking emergency provisions of s.17. if so advised,government can initiate acquisition proceeding by following the provision of section 5a of the act and in accordance with law. STATUTE in order to remedy this shortcoming in the act of 1894,an amendment by way of incorporation of section 5a was introduced on 11th july,1923.the statement of objects and reasons for the said amendment is as follows: "the land acquisition act i of 1894 does not provide that persons having an interest in land which it is proposed to acquire,shall have the right of objecting to such acquisition; nor is government bound to enquire into and consider any objections that may reach them. the object of this bill is to provide that a local government shall not declare,u/s.6 of the act,that any land is needed for a public purpose unless time has been allowed after the notification u/s.4 for persons interested in the land to put in objections and for such objections to be considered by the local government. gazette of india,pt. v,dated 14th july,1923. the said amendment was assented to by the governor general on 5th august,1923 and came into force on 1st january,1924.

FACTS the appellants challenge the acquisition of their agricultural lands by the state of uttar pradesh for the construction of the district jail of shahjahanpur. the appellants themselves are bhumidar with transferable rights and are residents of village murchha,tehsil puwayan in the district of shahjahanpur,uttar pradesh. the state of uttar pradesh vide its office memorandum constituted a committee under the chairmanship of the hon'ble minister of revenue to suggest its recommendations for transfer of prisons situated in the congested areas of various districts. after conducting its second and final meeting on 10th january,2005,the said committee recommended to the state government the shifting of the district jails from congested areas to outside the city limits within the district. as per the schedule,this shifting was to be done in two phases: 1 st phase 1.district jail,shahjahanpur; 2.district jail,azamgarh; 3.district jail,jaunpur; and 4.district jail,moradabad. 2nd phase 1.district jail,badaun; 2.district jail,varanasi; 3.district jail,barielly; and 4.district jail,muzaffarnagar. the existing district jail of shahjahanpur,constructed in 1870,was one of the oldest and required shifting to new premises.the government case is that the district jail is located in a densely populated area of the city and is overcrowded,housing as many as 1869 prisoners,while having a capacity of only 511. thereafter,the state government constituted a committee under the chairmanship of chief secretary,government of u.p to evaluate and consider the shifting of prisons identified to be shifted in the first phase. prisons in the districts of lucknow,moradabad were added to the list. this committee was also to evaluate and recommend the means for modernisation of existing old prisons. in its meeting the committee recommended that a detailed project report (dpr) be prepared by the rajkiya nirman nigam,and that acquisition of lands for shifting of the prisons be done on a priority basis. these recommendations were accepted by the state government vide the approval of the cabinet. following this decision,the director general of prisons (administration and reforms),uttar pradesh, requested the district magistrate,shahjahanpur to send all the relevant records to the state government for publication of notification u/ss.4(1) and 17 of the land acquisition act,1894. the land suggested for such acquisition by the divisional land utility committee was one admeasuring 25.89 hectares (63.93 acres) in village morchha,tehsil puwayan in the district of shahjahanpur. the state government issued notifications u/ss.4(1) and 17 on 21.08.2008. however,the provisions of section 5a inquiry were dispensed with. the state government explained that this was done in view of the pressing urgency in the matter of construction of the jails. being aggrieved by the aforesaid notifications,the appellants moved a writ petition before the high court u/art.226 of the constitution of india. ARGUMENT the contemplation of a new prison was under consideration of the state government for several years. committee was formed,matter was discussed at a leisurely pace at various levels and there is no material fact to justify the abridgement of the appellants' right of raising an objection to acquisition and of a hearing under section 5a of the act. ISSUE 1.whether or not the state government was justified in acquiring the said pieces of fertile agricultural land,when there were alternative sites of unfertile banjar land available? 2.whether or not the state government was justified in dispensing with the inquiry which is mandated to be conducted under section 5a of the act,especially when one year elapsed between the notifications u/s.4 and the one u/s.6. they further stated that the high court had erred insofar as it upheld the factum of urgency in the absence of a categorical finding,an enquiry under section 5a would have been detrimental to public interest. ANALYSIS in connection with land acquisition proceeding whenever the provision of s.17 and its various sub-sections including s.17(4) is used in the name of taking urgent or emergent action and the right of hearing of the land holder under section 5a is dispensed with,the court is called upon to consider a few fundamentals in the exercise of such powers. the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare state. the concept of public purpose cannot remain static for all time to come. the concept,even though sought to be defined u/s.3(f) of the act,is not capable of any precise definition. the said definition,having suffered several amendments,has assumed the character of an inclusive one. it must be accepted that in construing public purpose,a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. any attempt by the state to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose. even though the concept of public purpose was introduced by pre-constitutional legislation,its application must be consistent with the constitutional ethos and especially the chapter under fundamental rights and also the directive principles. the mandate of art.13 of the constitution that any pre-constitutional law cannot in any way take away or abridge rights conferred under part-iii must be kept in mind. by judicial interpretation the contents of these part iii rights are constantly expanded. the meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of part-iii rights. the courts must examine these questions very carefully when little indians lose their small property in the name of mindless acquisition at the instance of the state. if public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition,the courts,before sanctioning an acquisition,must in exercise of its power of judicial review,focus its attention on the concept of social and economic justice. while examining these questions of public importance,the courts,especially the higher courts,cannot afford to act as mere umpires. the construction of jail is certainly in public interest and for such construction land may be acquired. but such acquisition can be made only by strictly following the mandate of the said act. in the facts of this case,such acquisition cannot be made by invoking emergency provisions of s.17. if so advised,government can initiate acquisition proceeding by following the provision of section 5a of the act and in accordance with law. STATUTE the land acquisition act i of 1894 does not provide that persons having an interest in land which it is proposed to acquire,shall have the right of objecting to such acquisition; nor is government bound to enquire into and consider any objections that may reach them. the object of this bill is to provide that a local government shall not declare,u/s.6 of the act,that any land is needed for a public purpose unless time has been allowed after the notification u/s.4 for persons interested in the land to put in objections and for such objections to be considered by the local government.

this appeal by special leave has been preferred against the judgment and order dated 23 february 2005 of bombay high court aurangabad bench by which the appeal preferred by the appellants was dismissed and their conviction under section 304 b read with section 34 ipc and sentence of 7 years ri imposed thereunder by the learned sessions judge aurangabad was affirmed. the deceased bhimabai was daughter of pw 1 tukaram eknath tambe resident of village sanjkheda. and she was married to appellant No 1. appasaheb son of sheshrao palaskar about two and half years prior to the date of incident which took place on 15 september 1991. the appellant No 2 kadubai is the mother of the appellant No 1 and both the appellants were residing in the same house in village palshi. according to the case of prosecution a sum of rs 5000 and some gold ornaments had been given at the time of marriage of bhimabai. for about six months bhimabai was treated well but thereafter the accused started asking her to bring rs 1000 1200 from her parents to meet the household expenses and also for purchasing manure. whenever bhimabai went to her parental home she used to tell her parents that her husband and mother in law accused appellants were harassing her and used to occasionally beat her. her father pw 1 tukaram along with some of his relatives went to the house of the accused and tried to persuade them not to ill treat bhimabai. thereafter the accused treated bhimabai properly but after about four months they again started harassing her. a few days before nag panchami festival bhimabai came to her parental home and complained that the accused were not giving her proper food clothing and even footwear. she also told her parents that her husband had asked her to bring an amount of rs 1000 1200 for the purpose of household expenses and manure. the case of the prosecution futher is that in the evening of 15 september 1991 a person came from village palshi on a motorcycle and informed pw 1 tukaram that bhimabai was unwell. pw 1 then immediately went to the house of the accused along with some of his relatives. there he saw that bhimabai was lying dead and froth was coming out of her mouth which indicated that she had consumed some poisonous substance. the police patil of the village pw 3 sandu mohanrao patil lodged an accidental death report at 9 00 p m on 15 september 1991 at the police station. on the basis of the said accidental death report pw 6 sandeepan kamble police sub inspector visited the house of the accused held inquest on the dead body of bhimabai and thereafter sent the same for post mortem examination. pw 1 tukaram lodged the fir of the incident at 7 00 p m on 16 september 1991 at p s chikalthana on the basis of which case crime No 144 of 1991 was registered against the appellants under sections 498 a 306 and 304 b ipc. after completion of investigation charge sheet was submitted against the appellants and in due course the case was committed to the court of sessions. the learned sessions judge framed charges under sections 498 a 304 b read with section 34 ipc and section 306 read with section 34 ipc against both the appellants. the appellants pleaded not guilty and claimed to be tried. the prosecution in order to establish its case examined six wintesses and filed some documentary evidence. the learned sessions judge after consideration of the material on record acquitted the appellants of the charges under sections 498 a and 306 read with section 34 ipc but convicted them under section 304 b ipc and imposed a sentence of 7 years ri thereunder. the appeal preferred by the appellants was dismissed by the high court by the judgment and order dated 23 february 2005. we have heard learned counsel for the appellants learned counsel for the state of maharashtra and have perused the records. the post mortem examination on the body of deceased bhimabai was conducted by a team of two doctors of department of forensic medicine and toxicology medical college aurangabad namely dr s m jawale and dr h v godbole on 16 september 1991. the doctors did not find any sign of external or internal injury on the body of the deceased and in their opinion the cause of death was insecticide poisoning. the viscera were preserved for chemical analysis. the report of the post mortem examination was admitted by the defence. the specific case of the prosecution is that bhimabai ended her life by consuming poison because of harassment caused to her by the appellants for or in connection with demand of dowry. it is therefore necessary to briefly examine the evidence of the prosecution witnesses. 1 tukaram father of the deceased has given details of the prosecution version of the incident in his statement in court. he has deposed that in the marriage he had given rs 20000 as dowry. initially bhimabai was treated well for about six months but thereafter the appellants started ill treating her. whenever bhimabai came to her parental home she used to complain that for some domestic reasons she was being harassed. when she had visited her parental home on the last occasion she had said that her husband appasaheb had asked her to bring rs 1000 1200 for domestic expenses and for purchasing manure as he had no sufficient money. bhimabai had complained to him that she was not being given proper food clothings and even footwear and occasionally the appellant No 1 used to beat her. the last time she visited her parental home was during the festival of nag panchami and at that time she looked depressed. the witness has further deposed that on the date of incident a man came from village palshi on motorcycle and informed that he should immediately go there as bhimabai was not well. he then went to village palshi along with other persons of his family where he reached after sun set. he saw that bhimabai was lying dead and froth was coming out of her mouth which was smelling of thimet insecticide. in his cross examination he has admitted that his statement that he had given rs 20000 in dowry at the time of marriage was incorrect and in fact he had given rs 5000 as dowry and the total expenses incurred in the marriage was about rs 20000. he has also deposed that it was after about 1 12 years of marriage that bhimabai first complained to him about the harassment being caused to her. there used to be some bickering in the marital life of bhimabai and her husband on trifling matters. he has admitted that it was appellant No 1 who had sent a person on motorcycle who had given information regarding bhimabai being unwell and that both the appellants were present at the time of her funeral. pw 2 babaji is real brother of father in law of pw 1 tukaram. he has deposed that on an earlier occasion he had gone along with pw 1 and some others to the house of appellant no 1 to persuade him not to harass bhimabai and to treat her well. in his cross examination he has admitted that when he had gone to village palshi to talk with the appellants regarding the ill treatment being meted out to bhimabai there was no talk regarding monetary giving and taking. he also admitted that he had not gone to attend that funeral of bhimabai. pw 5 sumanbai is the mother of the deceased bhimabai. she has stated in her examination in chief that bhimabai was being ill treated by the appellants and the reason for ill treatment was that they were demanding money to be brought from her parental home. the last time bhimabai visited her parental home was on the occasion of the festival of nag panchami and she had complained that she was being ill treated and was sometimes given beating for bringing money from her parents. she has specifically stated that for a period of six months after the marriage bhimabai was treated well and thereafter she had started complaining about the harassment being caused to her. in her cross examination pw 5 sumanbai has stated that after news about the condition of bhimabai was given by a man from village palshi she along with her husband and some other relations went there and noticed that bhimabai was lying dead in the house and froth was coming out of her mouth. she has further stated that she did not make any enquiry as to how bhimabai had died. in her statement under section 161 cr. p c which was recorded very next day of the incident i e on 16 september 1991 she did not state that cause of ill treatment was a demand for money and a consequent beating. when confronted with her aforesaid statement under section 161 cr. she replied that she did not know why there was no mention in the said statement that the cause for ill treatment was a demand for money and a consequent beating. she further stated that it will be correct to say that her daughter was receiving ill treatment as a result of domestic cause. the learned trial judge then sought clarification from the witnesses by putting the following question. what do you mean by domestic cause. what i meant was that there was demand for money for defraying expenses of manure etc. and that was the cause. in the very next paragraph she stated as under it is not true to suggest that in my statement before the police i never said that ill treatment was as a result of demand for money from us and its fulfillment. i can not assign any reason why police did not write about it in my statement. 3 sandu police patil of village palshi has deposed that at about 4 20 p m on 15 september 1991 narayan who is uncle of appellant no 1 appasaheb informed him that the wife of appasaheb had expired. he then went to the house of the appellant and saw bhimabai lying with froth coming out of her mouth. thereafter he gave a report about the incident in writing at the police station. in his cross examination he admitted that he did not make detailed enquiries as to what was the cause of death and where the incident had taken place. he has further deposed that bhimabai had come to his house about six months earlier and had said all was not well between her and her husband but she had not given any specific details. the main witnesses regarding the alleged demand of money and also harassment and beating to bhimabai are her father and mother viz pw 1 tukaram and pw 5 sumanbai. in his examination in chief pw 1 has said that whenever his daughter came to her parental home she used to complain that she was being subjected to harassment by the appellants on account of some domestic reasons and further that her husband appellant no 1 had told her that while coming back from her parental home she should bring rs 1000 1200 for expenses and for manure as he had no sufficient money. pw 5 sumanbai has deposed that bhimabai was receiving ill treatment as a result of domestic cause and to a specific question put by the court as to what she meant by domestic cause she gave a reply that there was a demand for money for defraying expenses of manure etc. it is important to note that in her statement under section 161 cr. p c which was recorded on the very next day of the death of bhimabai this witness did not state that the cause for ill treatment was a demand for money and a consequent beating. the evidence on record does not indicate that the police had any reason to favour the accused and deliberately omitted to mention about the alleged demand of money while recording the statement of pw 5 sumanbai under section 161 cr. the evidence shows that the accused come from very humble background and they could not have exerted any kind of influence financial or otherwise upon the police so as to manage a statement favourable to them when in the course of investigation the statements of witnesses were being recorded under section 161 cr. accepting the statements of father and mother on their face value that utmost which can be held is that the appellant no 1 had asked his wife bhimabai to bring money for meeting domestic expenses and for purchasing manure. two essential ingredient of section 304 b ipc apart from others are i death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and ii women is subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry. the explanation appended to sub section 1 of section 304 b ipc says that dowry shall have the same meaning as in section 2 of dowry prohibition act 1961. section 2 of dowry prohibition act reads as under 2. definition of dowry in this act dowry means any property or valuable security given or agreed to be given either directly or indirectly a by one party to a marriage to the other party to the marriage or b by the parent of either party to a marriage or by any other person to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties but does not include dowry or mahr in the case of persons to whom the muslim personal law shariat applies. in view of the aforesaid definition of the word dowry any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. therefore the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. being a penal provision it has to be strictly construed. dowry is a fairly well known social custom or practice in india. it is well settled principle of interpretation of statute that if the act is passed with reference to a particular trade business or transaction and words are used which everybody conversant with that trade business or transaction knows or understands to have a particular meaning in it then the words are to be construed as having that particular meaning. see union of india v garware nylons ltd air 1996. sc 3509 1996 indlaw sc 2404 and chemicals and fibres of india v union of india air 1997. sc 558 1991 indlaw sc 861. a demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure can not be termed as a demand for dowry as the said word is normally understood. the evidence adduced by the prosecution does not therefore show that any demand for dowry as defined in section 2 of the dowry prohibition act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. since an essential ingredient of section 304 b ipc viz demand for dowry is not established the conviction of the appellants can not be sustained. learned counsel for the appellants has also submitted that there is absolutely no evidence either direct or circumstantial to show that bhimabai committed suicide. he has submitted that the insecticide thimet is extensively used by the farmers for preservation of crop and is kept stored in their houses and it could be a case where thimet accidentally got mixed with some food item and was consumed by bhaimabai. it has thus been submitted that no offence under section 306 ipc is made out against the appellants. we do not consider it necessary to examine this question. as already stated the appellants were also charged under sections 498 a and 306 read with section 34 ipc but were acquitted of the said charges by the learned sessions judge which order has attained finality for the reason that the state did not prefer appeal against the same. the appeal before the high court and also in this court has been preferred by the appellants challenging their conviction under section 304 b read with section 34 ipc. it has been held in state of andhra pradesh v thadi narayan air 1962. sc 240 1961 indlaw sc 171 that section 4231bi of code of criminal procedure 1898 which corresponds to section 386bi of code of criminal procedure 1973 is clearly confined to cases of appeals preferred against orders of conviction and sentence the powers conferred by this clause can not be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. therefore we have refrained from expressing any opinion as to whether the appellants could be held guilty of having committed the offence under section 498 a or 306 ipc on the basis of evidence available on record as their acquittal under the aforesaid charges has attained finality and can not be reversed in the appeal filed by the appellants challenging their conviction under section 304 b ipc. in view of the discussion made above the appeal is allowed. the judgment and order dated 23 february 2005 of the high court and the judgment and order dated 04 january 1993 of the learned sessions judge convicting the appellants under section 304 b ipc are set aside and the appellants are acquitted of the said charge. the appellant no 1 is in custody. he shall be released forthwith unless wanted in some other case. the appellant No 2 is on bail. the sureties and bail bonds furnished by her are discharged. appeal allowed.

FACTS this appeal, by special leave, has been preferred against the judgment and order of bombay high court (aurangabad bench), by which the appeal preferred by the appellants was dismissed and their conviction under section 304-b read with section 34 ipc and sentence of 7 years ri imposed thereunder by the learned sessions judge, aurangabad, was affirmed. the deceased was daughter of pw.1 and she was married to appellant no. 1. about two and half years prior to the date of incident the appellant no. 2, is the mother of the appellant no. 1 and both the appellants were residing in the same house. according to the case of prosecution, a sum of rs. 5000 and some gold ornaments had been given at the time of marriage of bhimabai. for about six months bhimabai was treated well but thereafter the accused started asking her to bring rs. 1,000-1,200 from her parents to meet the household expenses and also for purchasing manure. the case of the prosecution futher is that in the evening of 15 september 1991 a person came from village palshi on a motorcycle and informed pw.1 that bhimabai was unwell. pw.1 then immediately went to the house of the accused along with some of his relatives. there he saw that bhimabai was lying dead and froth was coming out of her mouth which indicated that she had consumed some poisonous substance. the police patil of the village pw.3 lodged an accidental death at the police station. on the basis of the said accidental death report, pw.6 sandeepan kamble, police sub-inspector, visited the house of the accused, held inquest on the dead body of bhimabai, and thereafter sent the same for post-mortem examination. ARGUMENT the insecticide thimet is extensively used by the farmers for preservation of crop and is kept stored in their houses and it could be a case where thimet accidentally got mixed with some food item and was consumed by bhaimabai. no offence under section 306 ipc is made out against the appellants. ISSUE conviction of accused under section 304-b read with section 34 ipc ANALYSIS the main witnesses regarding the alleged demand of money and also harassment and beating to bhimabai are her father and mother. they had said that whenever his daughter came to her parental home, she used to complain that she was being subjected to harassment by the appellants on account of some "domestic reasons" and further that her husband had told her that while coming back from her parental home she should bring rs. 1,000-1,200 for expenses and for manure as he had no sufficient money. it is important to note that in her statement under section 161 cr. p.c. which was recorded on the very next day of the death of bhimabai, this witness did not state that the cause for ill-treatment was "a demand for money and a consequent beating. the evidence on record does not indicate that the police had any reason to favour the accused and deliberately omitted to mention about the alleged demand of money while recording the statement of pw.5 sumanbai under section 161 cr. the evidence shows that the accused come from very humble background and they could not have exerted any kind of influence, financial or otherwise, upon the police so as to manage a statement favourable to them when in the course of investigation the statements of witnesses were being recorded under section 161 cr. in view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. since an essential ingredient of section 304-b ipc viz. demand for dowry is not established, the conviction of the appellants cannot be sustained. the appellants were also charged under sections 498-a and 306 read with section 34 ipc but were acquitted of the said charges by the learned sessions judge, which order has attained finality for the reason that the state did not prefer appeal against the same. the appeal before the high court and also in this court has been preferred by the appellants challenging their conviction under section 304-b read with section 34 ipc. therefore, we have refrained from expressing any opinion as to whether the appellants could be held guilty of having committed the offence under section 498-a or 306 ipc on the basis of evidence available on record as their acquittal under the aforesaid charges has attained finality and cannot be reversed in the appeal filed by the appellants challenging their conviction under section 304-b ipc. STATUTE two essential ingredient of section 304-b ipc, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for "dowry. the explanation appended to sub-section (1) of section 304-b ipc says that "dowry" shall have the same meaning as in section 2 of dowry prohibition act, 1961. section 2 of dowry prohibition act reads as under :- "2. definition of "dowry" - in this act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the muslim personal law (shariat) applies.

FACTS the deceased was daughter of pw.1 and she was married to appellant no. 1. about two and half years prior to the date of incident the appellant no. 2, is the mother of the appellant no. 1 and both the appellants were residing in the same house. a sum of rs. 5000 and some gold ornaments had been given at the time of marriage of bhimabai. for about six months bhimabai was treated well but thereafter the accused started asking her to bring rs. 1,000-1,200 from her parents to meet the household expenses and also for purchasing manure. in the evening of 15 september 1991 a person came from village palshi on a motorcycle and informed pw.1 that bhimabai was unwell. pw.1 then immediately went to the house of the accused along with some of his relatives. there he saw that bhimabai was lying dead and froth was coming out of her mouth which indicated that she had consumed some poisonous substance. the police patil of the village lodged an accidental death at the police station. on the basis of the said accidental death report, pw.6 police sub-inspector, visited the house of the accused, held inquest on the dead body of bhimabai, and thereafter sent the same for post-mortem examination. after completion of investigation, charge sheet was submitted against the appellants and in due course, the case was committed to the court of sessions. the learned sessions judge framed charges under sections 498-a, 304-b read with section 34 ipc and section 306 read with section 34 ipc against both the appellants. the appellants pleaded not guilty and claimed to be tried. the prosecution in order to establish its case examined six witnesses and filed some documentary evidence. the doctors during the post-mortem did not find any sign of external or internal injury on the body of the deceased and in their opinion, the cause of death was insecticide poisoning. the viscera were preserved for chemical analysis. ARGUMENT the insecticide thimet is extensively used by the farmers for preservation of crop and is kept stored in their houses and it could be a case where thimet accidentally got mixed with some food item and was consumed by bhaimabai. no offence under section 306 ipc is made out against the appellants. ISSUE conviction of accused under section 304-b read with section 34 ipc ANALYSIS the main witnesses regarding the alleged demand of money and also harassment and beating to bhimabai are her father and mother. they said that whenever his daughter came to her parental home, she used to complain that she was being subjected to harassment by the appellants on account of some "domestic reasons" and further that her husband had told her that while coming back from her parental home she should bring rs. 1,000-1,200 for expenses and for manure as he had no sufficient money. it is important to note that in her statement under section 161 cr. p.c. which was recorded on the very next day of the death of bhimabai, this witness did not state that the cause for ill-treatment was "a demand for money and a consequent beating. the evidence on record does not indicate that the police had any reason to favour the accused and deliberately omitted to mention about the alleged demand of money while recording the statement of pw.5 sumanbai under section 161 cr. the evidence shows that the accused come from very humble background and they could not have exerted any kind of influence, financial or otherwise, upon the police so as to manage a statement favourable to them when in the course of investigation the statements of witnesses were being recorded under section 161 cr. in view of the aforesaid definition of the word "dowry", any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. since an essential ingredient of section 304-b ipc viz. demand for dowry is not established, the conviction of the appellants cannot be sustained. the appellants were also charged under sections 498-a and 306 read with section 34 ipc but were acquitted of the said charges by the learned sessions judge, which order has attained finality for the reason that the state did not prefer appeal against the same. the appeal before the high court and also in this court has been preferred by the appellants challenging their conviction under section 304-b read with section 34 ipc. therefore, this court refrained from expressing any opinion as to whether the appellants could be held guilty of having committed the offence under section 498-a or 306 ipc on the basis of evidence available on record as their acquittal under the aforesaid charges has attained finality and cannot be reversed in the appeal filed by the appellants challenging their conviction under section 304-b ipc. STATUTE two essential ingredient of section 304-b ipc, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for "dowry. the explanation appended to sub-section (1) of section 304-b ipc says that "dowry" shall have the same meaning as in section 2 of dowry prohibition act, 1961. section 2 of dowry prohibition act- definition of "dowry" - in this act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the muslim personal law (shariat) applies.

this civil appeal by special leave is directed against the judgment and decree dated 29th november1977 rendered by a single judge of the gujarat high court in second appeal no 348 of 1973which arose out of regular civil suit no 921 of 1966 filed in the court of joint civil judge baroda civil court by the appellant herein as plaintiff against respondents 1 and 2 herein. defendants 1 and 2 for redemption of suit properties which were mortgaged as security for certain monies borrowed by the plaintiff from defendant l under two deeds of mortgage executed in the year 1961. plaintiff filed the suit for redemption of the said mortgages in the year 1966 defendant 2brother of defendanti had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. that suit was resisted by the defendants each of them having filed separate written statements which in sub stance did not differ from each other. the defence in those written statements was that defendant l and his family members had become tenants of the suit properties in the year 1959 1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. it was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to defendant 1 by receiving a sum of rs 4400 as consideration for the sale. even if the sale of said properties in favour of defendant l it was asserted therein was not proved they continued to be tenants of the said properties on the date of suit as they were tenants even before the date of coming into existence of the mortgages. the issue relating to their claim that they were tenants of the said properties the agricultural lands as urged therein had to be referred by the civil court to the mamlatdar under section 85 a of the bombay tenancy and agricultural lands act1948 the bt al act for recording his finding thereon and the suit had to be stayed pending receipt of the finding thereon so that the suit may be finally disposed of on the basis of such finding. the civil court notwithstanding the defence of the defendants taken in their written statements that the suit had to be stayed for obtaining the finding on their claim of tenancy under the bt al act framed the issues in the suit on the basis of the pleadings of the parties and after trial recorded its findings thereon. such findings were firstly that the defendants had failed to prove that the suit properties were sold in favour of defendant l subsequent to the giving of security of those properties in his favour under the mortgage deeds secondly that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit and thirdly that the mortgages of the suit properties were mortgages by conditional sale. on the basis of findings so recorded by the civil. court it also made a preliminary decree in favour of the plaintiff for redemption of the suit properties. though the defendants filed an appeal in the court of the district judge baroda against the said preliminary decree that appeal came to be dismissed on august 171972 affirming the judgment and decree of the civil court. however the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the high court of gujarat. a learned single judge of the high court who heard the second appeal while upheld the concurrent findings of the courts below that the deeds of mortgage executed by the plaintiff in respect of the suit properties in favour of defendant l were mortgages by conditional sale and the defendants had failed to prove that there was sale of the suit properties in their favour subsequent to the coming into existence of the said mortgages found that the defendants had raised in their written statements the plea that they were tenants not only prior to the date of suit but also at the time of the filing of the suit and having regard to that plea the suit ought to have been stayed by the civil court and the issue of tenancy should have been referred to the mamlatdar for obtaining a finding from him thereon both under section 85 a of the bt. al act as it stood before its amendment at the time of filing of the suit and as it stood after its amendment after the filing of the suit. consequently the learned single judge set aside the judgments and decrees of the trial court and the appellate court relating to the issue of tenancy raised by the defendants in the suit and remanded the case to the civil court trial court directing it to refer the issue of such tenancy to the mamlatdar baroda for his determination and to stay all further proceedings in the suit till he got the finding from the mamlatdar on that tenancy issue and thereafter to proceed to dispose of that suit in the light of that finding and the other findings recorded by the appellate court district judge. it is the judgment and order of the learned single judge of the high court by which he allowed the second appeal and remanded the suit which is appealed against in this civil appeal of the plaintiff as is stated at the outset. no controversy is raised in this appeal as regards the findings of the civil court that the deeds of mortgage executed by the plaintiff in respect of the suit properties were mortgages by conditional sale. specific case pleaded by the plaintiff in the plaint as regards possession of the suit properties held by tenants was that their possession which was with the plaintiff was given to defendant l on the execution of the deeds of mortgage by conditional sale in his favour. in any event it was not the case of the plaintiff that defendant l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re delivered to defendant l in pursuance of the mortgages by conditional sale executed in his favour. however the arguments addressed before us on behalf of the plaintiff appellant in support of the appeal by learned senior counsel mr s k dholakia were these that defendant l respondent l although was in possession of the suit properties. agricultural lands at the time of execution of the deeds of mortgage by conditional sale in his favour because of the coming into existence of such mortgages there occurred merger of lease hold rights of defendant l in suit properties when he obtained those properties as mortgage security under the said mortgages and as a consequence he became a mortgagee in possession of those properties. according 10 him a mortgagee in possession being a person who can not be deemed to be a tenant under section 4 of the bt al act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the civil court in the suit before it did not arise at all nor was it necessary to refer such issue to the mamlatdar under section 85 a of the bt al act and stay the suit till receipt of the finding on such issue as was directed by the high court in its judgment under appeal. in support thereof he sought to place reliance on the decisions of this court in shah mathuradas maganlal and co v. nagappa shankarappa malaga and others 1976 indlaw sc 400 and gambangi appalaswamy naldu and others v behara venkataramanayya patro. even otherwise it was argued by him that the civil court before whom the plaintiff had filed the suit for redemption of the suit properties could not have driven the plaintiff to the forum of mamlatdar merely because the defendants had raised the plea that they were tenants of the suit properties agricultural lands. according to him when the plaintiff had not admitted that the defendants were tenants of the suit properties it was not open to the defendants to force the plaintiff who had a right to choose his forum to file a suit to go before another forum on the plea that jurisdiction lay before another forum that is mamlatdar. in this regard support was sought from the decision of this court in raizada topandas and another v m s gorakhram gokalchand 1963 indlaw sc. 379 he therefore urged that the high court was not justified in upsetting the concurrent finding of the trial court and the appellate court that the defendants failed to prove their tenancy and remanding the case to the trial court directing it to refer the issue of tenancy to the mamlatdar and stay the suit till the receipt of the finding in that regard from the mamlatdar and then dispose of the suit. hence the judgment and order of the high court according to him was liable to be interfered with and set aside. however learned counsel appearing for the defendants respondents sought to refute the arguments advanced on half of the plaintiff appellant. questions which arise for our consideration and decision in the light of the aforesaid arguments of learned counsel for the contesting parties admit of their formulations thus 1 does the lease hold of a tenant lessee in a property merge in mortgage security if the same property is given by the landlord lessor to the tenant lessee as a mortgage security under a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining a decree for redemption of the mortgage. 2 when a plea of tenancy is raised with regard to suit property an agricultural land by a defendant who claims to be a tenant of such property under the bt al act and seeks a reference of that issue by the civil court to the mamlatdar under that act for obtaining a finding thereon can the civil court decide such issue by itself and proceed to decide the suit on the basis of the finding thereon. as the said questions could be dealt with appropriately with reference to the statutory provisions which bear upon them it would be convenient to advert to such statutory provisions here. the transfer of property act1882 tp act 111 a lease of immoveable property determines a b c d in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. bombay tenancy and agricultural lands act1948bombay tenancy and agricultural lands act1948. this act unless there is anything repugnant in the subject or context18 tenant means a person who holds land on lease and include a a person who is deemed to be tenant trader section 4 b a person who is a protected tenant and c a person who is a permanent tenant and the word landlord shall be construed accordingly. 4 a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not a a member of the owner 's family or b a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner 's family or c a mortgagee in possession. 70 for the purposes of this act the following shall be the duties and functions to be performed by the mamlatdar a to decide whether a person is an agriculturist b to decide whether a person is a tenant or a protected tenant or a permanent tenant c to decide such other matters as may be referred to him by or under this 85 1 no civil court shall have jurisdiction to settle decide or deal with any question which is by or under this act required to be settled decided or dealt with by the mamlatdar or tribunal a manager the collector or the maharashtra revenue tribunal in appeal or revision or the state government in exercise of their powers of control. 2 no order of the mamlatdar the tribunal the collector or the maharashtra revenue tribunal or the state government made under this act shall be questioned in any civil or criminal court. section 85a as it stood before the amendment of this act by gujarat act no 5 of 1973 w e f 3rd march1973. 85a 1 if any suit instituted in any civil court involves any issues which are required to be settled decided or dealt with by any authority competent to settle decide or deal with such issues under this act hereinafter referred to as the competent authority. the civil court shall stay the suit and refer such issues to such competent authority for determination. 2 on receipt of such reference from the civil court the competent authority shall deal with and decide such issues in accordance with the provisions of this act and shall communicate its decision to the civil court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. section 85a as it came into force after it was amended by gujarat act no 5 of 1973 w e f 3rd march1973. 85a i. if any suit instituted whether before or after the specified date in any civil court involves any issues which are required to be settled decided or dealt with by any authority competent to settle decide or deal with such issues under this act hereinafter referred to as the competent authority. we shall now proceed to deal with the aforesaid questions. question 1. interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right because of section 11 ld of the t p act. what is enunciated in section 111 d of the t p act can not be doubted is the doctrine of merger. merger takes place when a lesser estate is merged or drowned in a greater estate. lease hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord lessor being a higher estate the lessee 's lease hold right in respect of the property merges in reversion when that right of reversion i e. the landlord 's lessor 's right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease hold sells the whole of it to the tenant lessee but in view of the arguments advanced on behalf of the plaintiff appellant what has to be seen is if the landlord of a property the lease hold of which is already with the tenant gives that very property as mortgage security to the tenant lessee by executing a mortgage by a conditional sale for the amount borrowed by him from the latter does merger of lease hold right in that mortgage security occur. when the landlord mortgages the lease hold property of the tenant to the tenant himself he does not part with the right of reversion which he has in respect of that property. if that be so merger of lease hold estate in reversion can not arise inasmuch as there can not be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. moreover if a lessee of a property takes a mortgage of the sum property from the landlord it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the gujarat high court in patel atmaram nathudas v babubhai keshavlal 1974 indlaw guj 88. in the present case as has already been pointed out by us the plaintiff appellant did not claim that the defendants or any of them were in possession of the suit properties as tenants and there was a surrender by them of the possession either expressly or impliedly as would make the court to come to the conclusion that the possession of the suit properties with the defendants was surrendered by them pursuant to the mortgage by conditional sale executed in their favour. if that be the position there can be no bar for the defendants to claim the right to continue in possession of the suit properties as tenants under the bt. al act even if the plaintiff could obtain a decree for redemption of the suit properties which relief was sought in the suit. the decision of this court in shah mathuradas case 1976 indlaw sc 400 supra and g appalaswamy case 1984 indlaw sc 314 supra sought to be relied upon by learned counsel for the appellant plaintiff in support of his arguments that there was a merger of the leasehold right of the tenant in the suit properties when he took mortgages of those properties from the landlord as would deny him the right to continue in possession of those properties as a tenant instead of supporting his argument would go against it as we shall presently point out. shah mathuradas case 1976 indlaw sc 400 supra was that where the respondent had executed a mortgage in favour of the appellant respecting a premises of which he was a tenant. it was agreed under the terms of the mortgage deed that no interest need be paid by the respondent since the premises the possession of which was given to the tenant pursuant to the mortgage was to be enjoyed in lieu of interest payable on the mortgage. when suit for redemption of the premises was filed by the respondent the appellant claimed that after redemption he was entitled to remain in possession of the premises because of the subsistence of his previous tenancy right. this court held that the mortgage deed established beyond doubt that there was no subsistence or continuation of lease in that there was delivery of possession by the tenant to the landlord immediately before the mortgage and redelivery of possession to the tenant of the premises made by the landlord was pursuant to the mortgage as a mortgagee and not as a tenant. secondly this court held that the appellant was not entitled to retain after redemption possession of the mortgage property by reason of his previous right to be in its possession as a tenant. in the present case as we have pointed out earlier when no surrender of possession of the suit properties had taken place before the coming into existence of mortgages in favour of the lessor mortgagor when no redelivery of possession had been given pursuant to the mortgage to the tenant the decision under consideration can be of no assistance to the appellant. since the following observations in the said case confirm the view we have taken on non merger they can be excerpted for a merger to arise it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outside. in the case of a lease the estate that is in the lessor is a reversion. in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. therefore there can not be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. coming to g appalaswamy case 1984 indlaw sc 314 supra which considered the question whether a sitting tenant who took property by a possessory or usufructuary mortgage in his favour was liable to deliver physical possession upon redemption to the mortgagor. former lessor this court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee 's rights when the usufructuary mortgage was executed in his favour by the lessor mortgagor and only if an implied surrender of lossee 's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. dealing with the question of non merger this court approved the ratio of the decision in shah mathuradas 1976 indlaw sc 400 supra thus in our view there can be no merger of a lease and a mortgage even where the two transactions are in respect of the same property. it is well settled that for a merger to arise it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. in the case of a lease the estate that is outstanding in the lessor is the reversion in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. accordingly there can not be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage would be outstanding in the owner of the property and accordingly there would not be a complete fusion of all the rights of ownership in one person. hence the lease hold of a tenant lessee in a property does not merge in mortgage security of that property even if it is given to. him by the landlord lessor on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. question 2. the argument which was strenuously advanced on behalf of the appellant plaintiff was that in a suit for redemption filed by the mortgagor in a civil court in respect of property notwithstanding the plea of the defendants claim that they were tenants of that property under the bt al act and under the provisions of that act the issue of tenancy had to be referred by the civil court to the mamlatdar for recording a finding thereon and the civil court can proceed to dispose 0. the suit only on the basis of the finding received from the mamlatdar the civil court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy it would be permissible for the civil court to grant the decree for redemption sought by the plaintiff in the said suit. support was sought for the argument from the decision of this court in topandas case 1963 indlaw sc 379 supra. we find it difficult to accept the said argument and the aforesaid decision of this court relied upon in support thereof can render no assistance. the only question which arose for decision in topandas case 1963 indlaw sc 379 supra was whether on a proper interpretation of section 28 of the bombay rents hotel and lodging house rates control. act1947. the rents control actthe court of small causes. bombay had exclusive jurisdiction in dealing with the suit out of which the appeal had arisen. there the respondent a partnership firm was in possession as a tenant of a shop at mulji jetha market bombay. it instituted a suit in the bombay city civil court not the court of small causes bombay praying for a declaration that it was in lawful possession of the shop and the appellants had no right to enter into or remain in possession of the shop and for grant of an injunction restraining the appellants from interfering with the respondent 's possession. the plaint averments were that appellant 1 defendant 1 had appointed the respondent as his commission agent for the sale of the appellants cloth in the shop in question. the agreement was to remain in force for a period of four years. pursuant to the said agreement the respondent had allowed the appellants their family members servants and agents to visit the shop only for the purpose of looking after the business of commission agency. the appellants despite being asked not to visit the shop after the expiry of the period in the concerned agreement they continued to visit the shop and were preventing the respondent from having access to its various articles such as stock in trade books of account furniture fixtures etc. thus according to the plaint the appellants who were merely licensees had no right to enter into the shop after the expiry of the period of licence envisaged in the agreement. the defence of the appellants defendants in substance was that the agreement on which reliance was placed by the respondents in their suit was a sham agreement and that the appellants in reality were the tenants of the shop and the relationship between the respondents and appellants was that of the landlord and tenant. the further plea taken in the written statement by the appellants was that as the question involved in the suit related to the possession of premises as between a landlord and his tenant the court of small causes bombay alone had jurisdiction to try the suit. the appeal in this court had arisen out of the finding recorded on that issue and in dealing with that matter this court had to consider the true effect of sub section 1 of section 28 of the rents control act to find whether it means that a defendant if raises a claim or question as to the existence of relationship of landlord and tenant between him and plaintiff the jurisdiction of the civil court is ousted even though the plaintiff pleaded that there is only exclusive jurisdiction to decide the case with the court of small causes bombay. dealing with the matter this court referred to the general principle which covers the question of jurisdiction at the inception of suits which was not disputed thus the plaintiff chooses his forum and files his suit. if he establishes the correctness of his facts he will get his relief from the forum chosen. if he frames his suit in a manner not warranted by the facts and goes for his relief to a court which can not grant him relief on the true facts he will have his suit dismissed. then there will be no question of returning the plaint for presentation to the proper court for the plaint as framed would not justify the other kind of court to grant him the relief. if it is found on a trial on the merits so far as this issue of jurisdiction goes that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true and that the case is not cognizable by the court there will be two kinds of orders to be passed. if the jurisdiction is only one relating to territorial limits or pecuniary limits the plaint will be ordered to be returned for presentation to the proper court. if on the other hand it is found that having regard to the nature of the suit it is not cognizable by the class of court to which the court belongs the plaintiff 's suit will have to be dismissed in its entirety. by referring to the material portion of section 28 of the rents control act the argument made on behalf of the appellants was found by this court to be untenable by stating thus we do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. it proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the act as to parties between whom there is or was a relationship of landlord and tenant. it does not invest those courts with exclusive power to try questions of title such as questions as between the rightful owner and a trespasser or a licensee for such questions do not arise under the act. if therefore the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the act on which the exclusive jurisdiction given under s 28 depends we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he can not go. the interpretation canvassed for by the appellants will give rise to anomalous results for example the defendant may in every case force the plaintiff to go to the court of small causes and secondly if the court of small causes finds against the defendant 's plea the plaint may have to be returned for presentation to the proper court for a second time when one has regard to the provisions in part ii it seems reasonably clear that the exclusive jurisdiction conferred by s 28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the act as between such parties. as seen from the above observations this court has held that it did not think that the section concerned says or intends to say that the plea of the defendant will determine or change the forum. but if the provisions of the bt al act which bear on the question of matters to be decided by the mamlatdar are seen they give no room for one even to think that those matters could be decided by a civil court when a question is raised in that behalf even by a defendant in a suit. section 70 of the bt al act to which we have adverted already imposes a duty on the mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that act. further section 85 of the bt al act to which also we have already adverted in unequivocal terms says that in deciding any issue which is required to be decided by the mamlatdar under the bt al act no civil court has jurisdiction to decide it. furthermore section 85a as it stood prior to its amendment by gujarat amendment act no 5 in the year 1973 and as stands thereafter requires that if any suit instituted in civil court involves the question of tenancy of present or pastas the case may be the same being required to be decided or dealt with by an authority competent under the bt al act the civil court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. thus the provisions in the bt al act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a civil court the same could be decided by the civil court. thus we are constrained to answer the question in the negative by agreeing with the view expressed by the single judge of the high court in this regard in his judgment and order under appeal. consequently the judgment and order under appeal does not call for our interference. in the result we dismiss this appeal with costs. appeal dismissed.

FACTS the civil appeal by special leave is directed against the judgment and decree rendered by a single judge of the gujarat high court. plaintiff filed the suit for redemption of the said mortgages in the year 1966. defendant-2,brother of defendant i had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. that suit was resisted by the defendants,each of them having filed separate written statements which in sub-stance did not differ from each other. the defence in those written statements was that defendant-l and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. it was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to defendant-1 by receiving a sum of rs.4,400/-as consideration for the sale. the civil court notwithstanding the defence of the defendants recorded its findings. such findings were firstly,that the defendants had failed to prove that the suit properties were sold in favour of defendant-l subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly,that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit; and thirdly,that the mortgages of the suit properties were mortgages by 'conditional sale. the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the high court of gujarat. the high court,who heard the second appeal, upheld the concurrent findings of the lower court. ARGUMENT arguments addressed behalf of the plaintiff- were these: that defendant-l. respondent-l although was in possession of the suit properties. agricultural lands at the time of execution of the deeds of mortgage by conditional sale in his favour because of the coming into existence of such mortgages there occurred merger of lease-hold rights of defendant-l in suit properties when he obtained those properties as mortgage security under the said mortgages and as a consequence he became a mortgagee in possession of those properties. according to him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the bt &; al act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the civil court in the suit before it did not arise at all nor was it necessary to refer such issue to the mamlatdar under section 85-a of the bt &; al act and stay the suit till receipt of the finding on such issue as was directed by the high court in its judgment under appeal. the argument which was strenuously advanced on behalf of the appellant -plaintiff was that in a suit for redemption filed by the mortgagor in a civil court in respect of property notwithstanding the plea of the defendants' claim that they were tenants of that property under the bt &; al act and under the provisions of that act the issue of tenancy had to be referred by the civil court to the mamlatdar for recording a finding thereon and the civil court can proceed to dispose of the suit only on the basis of the finding received from the mamlatdar,the civil court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy,it would be permissible for the civil court to grant the decree for redemption sought by the plaintiff in the said suit. support was sought for the argument from the decision of this court in topandas case 1963 indlaw sc 379 ISSUE (1).does the lease-hold of a tenant (lessee) in a property merge in mortgage security if the same property is given by the landlord (lessor) to the tenant (lessee) as a mortgage security under a mortgage by conditional sale,as would debar the tenant from desisting the suit of the landlord -mortgagor for recovery of possession of such property by obtaining a decree for redemption of the mortgage. 2).when a plea of tenancy is raised with regard to suit property,an agricultural land,by a defendant who claims to be a tenant of such property under the bt &; al act and seeks a reference of that issue by the civil court to the mamlatdar under that act for obtaining a finding thereon,can the civil court decide such issue by itself and proceed to decide the suit on the basis of the finding thereon. the appeal in the court had arisen out of the finding recorded on that issue and in dealing with that matter this court had.to consider the true effect of sub-section (1) of section 28 of the rents control act to find whether it means that a defendant if raises a claim or question as to the existence of relationship of landlord and tenant between him and plaintiff the jurisdiction of the civil court is ousted even though the plaintiff pleaded that there is only exclusive jurisdiction to decide the case with the court of small causes,bombay. ANALYSIS no controversy is raised in the appeal as regards the findings of the civil court that the deeds of mortgage executed by the plaintiff in respect of the suit properties were mortgages by conditional sale. in any event,it was not the case of the plaintiff that defendant-l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by conditional sale executed in his favour. learned counsel appearing for the defendants -respondents sought to refute the arguments advanced on half of the plaintiff-appellant. what is enunciated in section 111 (d) of the t.p.act cannot be doubted is the doctrine of merger. lease-hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord (lessor) being a higher estate,the lessee's lease-hold right in respect of the property merges in reversion when that right of reversion,i.e.,the landlord's (lessor's) right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease-hold sells the whole of it to the tenant (lessee). when the landlord mortgages the lease-hold property of the tenant to the tenant himself,he does not part with the right of reversion which he has in respect of that property. if that be so,merger of lease-hold estate in reversion cannot arise,inasmuch as,there cannot be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property,for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. moreover,if a lessee of a property takes a mortgage of the sum property from the landlord,it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the gujarat high court in patel atmaram nathudas v. babubhai keshavlal.1974 indlaw guj 88. in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. therefore,there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. g.appalaswamy case 1984 indlaw sc 314 (supra) which considered the question whether a sitting tenant who took property by a possessory or usufructuary mortgage in his favour was liable to deliver physical possession upon redemption to the mortgagor. former lessor). the court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor and only if an implied surrender of lossee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. hence,the lease-hold of a tenant (lessee) in a property does not merge in mortgage security of that property,even if it is given .to. him by the landlord (lessor) on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. section 70 of the bt &; al act to which we have adverted already imposes a duty on the mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that act. further,section 85 of the bt &; al act to which also we have already adverted,in unequivocal terms says that in deciding any issue which is required to be decided by the mamlatdar under the bt &; al act no civil court has jurisdiction to decide it. furthermore,section 85a,as it stood prior to its amendment by gujarat amendment act no.5 in the year 1973 and as stands thereafter,requires that if any suit instituted in civil court involves the question of tenancy of 'present' or 'past',as the case may be,the same being required to be decided or dealt with by an authority competent under the bt &; al act,the civil court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. thus,the provisions in the bt &; al act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a civil court,the same could be decided by the civil court STATUTE the transfer of property act,1882 (tp act) "111.a lease of immoveable property determines - (a. b. c. d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. bombay tenancy and agricultural lands act,1948(bombay tenancy and agricultural lands act,1948. section 85a,as it came into force after it was amended by gujarat act no.5 of 1973 w.e.f 3rd march,1973. 85a.(i. if any suit instituted,whether before or after the specified date,in any civil' court involves any issues which are required to be settled,decided or dealt with by any authority competent to settle,decide or deal with such issues

FACTS plaintiff filed the suit for redemption of the said mortgages in the year 1966. defendant-2,brother of defendant i had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. that suit was resisted by the defendants,each of them having filed separate written statements which in sub-stance did not differ from each other. the defence in those written statements was that defendant-l and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. the civil court notwithstanding the defence of the defendants recorded its findings. such findings were firstly,that the defendants had failed to prove that the suit properties were sold in favour of defendant-l subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly,that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit; and thirdly,that the mortgages of the suit properties were mortgages by 'conditional sale. the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the high court of gujarat. the high court,who heard the second appeal, upheld the concurrent findings of the lower court. ARGUMENT according to him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the bt &; al act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the civil court in the suit before it did not arise at all nor was it necessary to refer such issue to the mamlatdar under section 85-a of the bt &; al act and stay the suit till receipt of the finding on such issue as was directed by the high court in its judgment under appeal. in a suit for redemption filed by the mortgagor in a civil court in respect of property notwithstanding the plea of the defendants' claim that they were tenants of that property under the bt &; al act and under the provisions of that act the issue of tenancy had to be referred by the civil court to the mamlatdar for recording a finding thereon and the civil court can proceed to dispose of the suit only on the basis of the finding received from the mamlatdar,the civil court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy,it would be permissible for the civil court to grant the decree for redemption sought by the plaintiff in the said suit. ISSUE (1)does the lease-hold of a tenant (lessee) in a property merge in mortgage security if the same property is given by the landlord (lessor) to the tenant (lessee) as a mortgage security under a mortgage by conditional sale,as would debar the tenant from desisting the suit of the landlord -mortgagor for recovery of possession of such property by obtaining a decree for redemption of the mortgage. (2)when a plea of tenancy is raised with regard to suit property,an agricultural land,by a defendant who claims to be a tenant of such property under the bt &; al act and seeks a reference of that issue by the civil court to the mamlatdar under that act for obtaining a finding thereon,can the civil court decide such issue by itself and proceed to decide the suit on the basis of the finding thereon. ANALYSIS in any event,it was not the case of the plaintiff that defendant-l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by conditional sale executed in his favour. what is enunciated in section 111 (d) of the t.p.act cannot be doubted is the doctrine of merger. lease-hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord (lessor) being a higher estate,the lessee's lease-hold right in respect of the property merges in reversion when that right of reversion,i.e.,the landlord's (lessor's) right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease-hold sells the whole of it to the tenant (lessee). when the landlord mortgages the lease-hold property of the tenant to the tenant himself,he does not part with the right of reversion which he has in respect of that property. if that be so,merger of lease-hold estate in reversion cannot arise,inasmuch as,there cannot be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property,for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. therefore,there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. moreover,if a lessee of a property takes a mortgage of the sum property from the landlord,it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the gujarat high court in patel atmaram nathudas v.babubhai keshavlal.1974 indlaw guj 88. shah mathuradas case 1976 indlaw sc 400 (supra) was that where the respondent had executed a mortgage in favour of the appellant respecting a premises of which he was a tenant. the court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor and only if an implied surrender of lossee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. hence,the lease-hold of a tenant (lessee) in a property does not merge in mortgage security of that property,even if it is given .to. him by the landlord (lessor) on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. section 70 of the bt &; al act to which we have adverted already imposes a duty on the mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that act. further,section 85 of the bt &; al act to which also we have already adverted,in unequivocal terms says that in deciding any issue which is required to be decided by the mamlatdar under the bt &; al act no civil court has jurisdiction to decide it. furthermore,section 85a,as it stood prior to its amendment by gujarat amendment act no.5 in the year 1973 and as stands thereafter,requires that if any suit instituted in civil court involves the question of tenancy of 'present' or 'past',as the case may be,the same being required to be decided or dealt with by an authority competent under the bt &; al act,the civil court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. thus,the provisions in the bt &; al act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a civil court,the same could be decided by the civil court. STATUTE the transfer of property act,1882 (tp act) "111.a lease of immoveable property determines - (a. b. c. d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. bombay tenancy and agricultural lands act,1948(bombay tenancy and agricultural lands act,1948. section 85a,as it came into force after it was amended by gujarat act no.5 of 1973 w.e.f 3rd march,1973. 85a.(i. if any suit instituted,whether before or after the specified date,in any civil' court involves any issues which are required to be settled,decided or dealt with by any authority competent to settle,decide or deal with such issues.

these three appeals by special leave are directed against one and the same judgment dated 25 09 l992 of the division bench of calcutta high court. the three appellants are the state of west bengal in appeal arising out of slp c no 401 of 1993the state fishery development corporation ltd in appeal arising out of slp c no 13516 of 1992 and bansilal farms in appeal arising out of slp c no 13314 of 1992. the respondents are the members of one sarkar family in the city of calcutta. the dispute centres around a fishery called nalban fishery. a suit for partition was filed by one of the co sharers of said sarkar family in the high court of calcutta on 3 9 1955which was registered as suit no 2539 of 1955 the schedule of properties included the disputed nalban fishery. a learned single judge of the calcutta high court passed a preliminary decree in the said suit on 11 8 1960 one of the co sharers of the sarkar family preferred an appeal against the preliminary decree before the division bench which was registered as appeal no200 of 1960 during the pendency of the aforesaid appeal the state of west. bengal requisitioned large extent of fisheries including the disputed nalban fishery on 5 11 1969 in exercise of power under section 31 of the west bengal land requisition and acquisition act of 1948 hereinafter referred to as the requisition act pursuant to the aforesaid requisition order the state of west bengal took possession of the nalban fishery on 8 11 1969 members of the sarkar family challenged the order of requisition by filing a writ petition in calcutta high court in november1969 which was registered as civil rule no 7317 w of 1969 the aforesaid writ petition was dismissed by the learned single judge. the appeal to the division bench was preferred against the aforesaid order of dismissal which was registered as f m a no 126 of 1970 the division bench dismissed the appeal by its order dated 5 7 1971 sarkar family moved this court in slp c no 1452 of 1972 by order dated 17 11 1972. this court dismissed the special leave petition. the appeal arising out of the petition suit bearing suit no 2539 of 1955 which had been registered as appeal no 200 of 1960 was finally disposed of by the division bench and the said order was assailed in this court in slp c nos 5370 5371 of 1978 the said two appeals arising out of the said two special leave petitions were disposed of by order dated 18 4 1979 on the basis of a compromise arrived at between the parties on intervention of shri ashok sen who appearing for one of the parties but it was indicated in the order that the state 's right in relation to the fisheries will not be affected by the decree in question. this court further ordered we again wish to re emphasize that the terms of the decree shall not effect the rights of the state of west bengal in any manner whatsoever to the fisheries in question if they have vested in state under the provisions of the west bengal estate acquisition act of 1953 act x of 1954. prior to the passing of the aforesaid order on april 181979 while granting special leave petition on 10 11 1978 this court had directed that the state of west bengal will be made a party to the proceeding and further the collector parganas was appointed as receiver in respect of the fisheries owned by the sarkar family. the court had also further directed that the collector will be the receiver in respect of the fisheries which has not already been vested in the state and whose possession has not already been taken over by the state. pursuant to the aforesaid order appointing collector 24 parganas as receiver. the collector 24 parganas took possession of the fisheries including nalban fishery as receiver and submitted a compliance report dated 22 11 1978 to the registrar of this court. it may be noted that nalban fishery had been requisitioned by the state of west bengal under the provisions of requisition act since 5 11 1969 and possession thereof had been taken on 8 11 1969 and the sarkar family had challenged the said order unsuccessfully which final by the dismissal of the special leave petition by this court on 17 11 1972 on 25 5 1979 the collector 24 parganas who had been appointed as receiver realised that he could not have taken possession of nalban fishery as receiver since the said fishery had already been in possession of the state of west bengal pursuant to requisition order dated 5 11 1969 obviously the earlier compliance report dated 20 11 1978 that the receiver has taken possession of the nalban fishery was a symbolic one inasmuch as the state of west. bengal was in fact in possession of the said fishery. the receiver therefore intimated to the registrar of this court the mistake committed by him in his earlier report and after taking advice from the senior counsel expressed apology to this court for the mistake committed in the earlier report while the matter stood thus in relation to the aforesaid nalban fishery the government of west bengal handed over the possession of the said nalban fishery to the director of inland fisheries state fisheries development corporation for undertaking fisheries development scheme. the aforesaid corporation issued an advertisement for auctioning the nalban fishery for a boating complex. the sarkar family thereupon filed an application before the calcutta high court contending inter alia that under the decree passed in the partition suit by the supreme court the property belongs to the sarkar family and could not have been handed over to the state of west bengal that application was disposed of by the learned single called upon the collector 24 parganas who was the receiver pursuance to the orders of the supreme court to take over the possession of nalban fishery from the state of west bengal and give vacant possession of the same to the sarkar family. this order of the learned single judge was challenged in appeal before the division bench and the division bench having dismissed the same the present appeals have been preferred. it may be noticed at this stage that bansilal farms appellant in appeal arising out of slp c no 13314 of 1992 was the highest offerer for running the boating complex on the surface water of nalban fishery and had been granted licence for that purpose and in fact had started the operation of the boating complex since 1991 but on the application of mrs dhira mitra one of the co sharers of the sarkar family the high court having issued an order of injunction the farm is no longer operating. mr harish salve the learned senior counsel for the state of west bengal. s s ray the learned senior counsel appearing for bansilal farms and mr g ramaswamy the learned senior counsel appearing for the state fishery development corporation ltd contended that a compromise decree between the parties in a suit for partition will not in army way affect the rights of the state in respect of the fisheries whether such rights the state acquires by virtue of an order of requisition under the requisition act or by virtue of any other statutory provisions under which the fisheries right vest in the state. it was further contended that this court while giving affect to the compromise arrived at between the sarkar family made it explicitely clear that the said compromise will not in any way affect the rights of the state over the fisheries even if those fisheries agreed to be divided between the parties and in that view of the matter and the state of west bengal having already requisitioned the nalban fishery and having taken possession of the same the receiver could not have taken possession of the said nalban fishery pursuant to the order of this court appointing the collector 24 parganas as receiver and. under the circumstances the said receiver rightly intimated this court about the mistake committed by him and re delivered possession of nalban fishery to the state of west bengal. the calcutta high court both the learned single judge as well as the division bench committed serious error of law in directing the receiver to take possession of nalban fishery from the state of west bengal and deliver the vacant possession of the same to the members of the sarkar family. the learned counsel also urged that in any view of the matter on the amendment of the west bengal land reforms act in the year 1936 giving it retrospective effect and defining land to include tank fishery the nalban fishery vests in the state of west bengal and therefore the high court could not have issued the impugned direction. ray the learned senior counsel appearing for bansilal farms in addition to the contentions raised by mr salve appearing for the state of west. bengal contended that the state being the owner of nalban fishery and having vested the management and control thereof with the state fishery development corporation and the said corporation having decided to use the tank fishery for a boating complex and the bansilal farms being the highest bidder and having been granted the right to have a boating complex therein and he having invested a huge sum of money his rights can not be taken away in the dispute between the state and the sarkar family. jaideep gupta learned counsel appearing for the respondents on the other hand condented that the decree passed by the supreme court in the partition suit amongst the members of the sarkar family on the basis of a compromise arrived at between the parties would bind the state of west bengal as the decree has been passed in presence of the state who was impleaded as a party. he further contended that nalban fishery having been vested in the state of west bengal under the provisions of west bengal under the provisions of west bengal acquisition act1955the state can not get rid of the direction given by the supreme court to the receiver to handover possession of the various fisheries covered by the final decree to the parties to whom they have been allotted under the decree and the nalban fishery being one such fishery the possession thereof was required to be given to the person in whose favour the said fishery has been allotted and therefore the learned single judge as well as the division bench in appeal have rightly issued the directions. gupta also contended that the receiver assumed possession of the fisheries pursuant to the order of the supreme court dated 6th of november1978 and having submitted a report to that effect on 22 11 1978 indicating that it has taken possession of the nalban fishery. the subsequent incumbent to the post of district magistrate 24 parganas who became the receiver by virtue of his official position had no further jurisdiction to re deliver possession of the nalban fishery to the state of west bengal and the comments already made by the high court on the report of the subsequent receiver sufficiently indicate how he had acted with the bias mind and consequently the nalban fishery having not vested in the state of west bengal under the acquisition act the decree passed by the supreme court on 18 4 1979 remains operative. judged from this view there is no infirmity with the direction issued by the learned single judge as well as division bench of the calcutta high court warranting interference by this court. gupta also contended that the order of the high court of honourable mr justice deepak kumar sen dated 23 9 1980 directing the receiver to allow m s ghose and saha surveyors to make proper demarcation in the nalban fishery dividing the same in two lots and thereafter carry out the directions of the supreme court in respect thereof has become final the same not having been challenged by the state of west. bengal and therefore it would not be open for the said state in application for execution of the decree to raise the question of vesting of the nalban fishery with the state and the court would not interfere with the direction given by the learned single judge and division bench of the calcutta high court. on the question of vesting of the tank fishery under the amended provisions of the west bengal land reforms act mr. gupta contended that the validity of the said act has been challenged and is pending before the calcutta high court an interim order has been passed in the said proceeding and therefore until that matter is decided it can not be said. that the tank fishery vested with the state of west bengal. in this connection he had further urged that this question had not been raised before the high court. in view of the rival submissions at the bar the first question that arises for consideration is whether in the suit for partition amongst the members of the sarkar family which was ultimately disposed of by a compromise decree in this court nalban fishery had been allotted to some members of the sarkar family and whether such decree would affect the rights of the state and bind the state of west. bengal. the nalban fishery was one of the items of property in the suit for partition is not disputed. it is also not disputed that the state of west bengal though was not a party to the suit but in course of proceeding before this court by an order of the court the said state of west bengal was impleaded as a party. the aforesaid order directing impleadment of the state of west bengal as a 7 party was obviously intended for the purpose that the interest of the state and the rights of the state in relation of the state and the rights of the state in relation of the state and the rights of the state in relation to several fisheries could be protected. the suit ultimately no doubt was disposed of on the basis of a compromise arrived at between the parties but the court took sufficient care in disposing of the appeals on the terms of compromise by observing that the state has substantial interest with regard to fisheries rights covered by the litigation and nothing in the decree will not affect the rights of the state of west. bengal in any manner whatsoever to the fisheries in question if they are vested in the state under the provisions of west bengal estates acquisition act1953. it would be appropriate at this stage to extract this part of the decree passed by this court in view of the foregoing we again wish to re emphasize that the terms the decree shall not affect the rights of the state of west bengal in any manner whatsoever to the fisheries in question if they have vested in the state under the provisions of the west bengal estates acquisition act1953 act x of 1954. further while directing the receiver to handover possession of the various fisheries covered by the final decree to the parties to whom they have been allotted under the decree this court also protected the interest of the state by observing we made it quite clear that this will not in any manner prejudice or affect the right of the state to its claim over the fisheries under the west bengal acquisition act 1955 west bengal act 1 of 1954 or under any other statute. it is an undisputed fact that nalban fishery had been requisitioned much prior to the aforesaid decree of this court dated 18 4 1979 and therefore the rights of the state to the fishery either by virtue of the requisition order or by virtue of any provision of any other statute remained protected and as such said state of west. bengal ca nt be bound down by the so called allotment of fisheries in favour of some members of the sarkar family under the compromise decree in question. the nalban fishery had been requisitioned by the state of west bengal in exercise of power under section 31 of the west bengal land requisition and acquisition act is not disputed and can not be disputed and since the validity of the said order of requisition had been challenged by the sarkar family in the calcutta high court and being unsuccessful there they had also filed special leave petition in this court in slp c no 145272 which was ultimately dismissed by this court on 17 11 1972. the dismissal of the special leave petition as aforesaid affirmed that the nalban fishery had been legally requisitioned by the state of west bengal and the state was in possession of the same since 8 11 1969. the next question that arises for consideration is whether the receiver appointed by this court was at all entitled to take possession of the nalban fishery pursuant to the order of this court or the nalban fishery could not have been taken possession by the receiver and therefore the second receiver rightly corrected the mistake committed by his predecessor. from the report submitted by the receiver it transpired that the district magistrate 24 parganas who was appointed as receiver took possession of several fisheries including nalban fishery obviously on the impression that the lease in respect of the said fishery which had been granted by the sarkar family had lapsed. the said receiver was not aware of the fact that nalban fishery had in fact requisitioned by the state of west bengal and the state is in possession of the same since november1369 the possession thus taken by the receiver of the vast extent tank fishery is obviously a symbolical possession but in view of the order of this court dated 18 4 1979 as well as 22 4 1979 while passing a decree in terms of compromise arrived at between the parties and on the admitted position that state had already come into possession of the fishery by virtue of the order under the requisition act the said fishery remained out of the purview of the allotment made by the sarkar family in the compromise and therefore the receiver could not have taken possession of the same. the successor receiver in the circumstances therefore was fully justified in bringing it to the notice of this court by giving a second report indicating therein that his predecessor had erroneously taken the possession of nalban fishery which is in contravention of the directions of this court dated 18 4 1979 and for which the receiver offered his unconditional apology. we do not find any force in the contention of mr gupta appearing for the respondents that the succeeding receiver had no jurisdiction to re deliver the possession of nalban fishery is the state of west bengal when his predecessor has already taken possession of the same pursuant to the order of this court. the receiver appointed by a court is an officer of the court. the said receiver will be fully justified in rectifying any mistake or error committed by him while implementing the direction of the court. we do not find any illegality in the act of the succeeding receiver in rectifying the earlier mistake and re delivering the possession of nalban fishery to the state of west bengal. as has been stated earlier the possession which was taken by the earlier receiver was a symbolical one and factually the state had not been divested of its possession which it took on 8 11 1969 in our considered opinion the succeeding receiver rightly took into account the directions of this court passed on 18 4 1979 and 24 4 1979 and rightly took the view that the rights and interest of the state in relation to nalban fishery is not affected in any manner by the so called allotment of the fishery in the partition decree amongst the members of the sarkar family. the next question that arises for consideration is whether the order of honourable mr justice deepak kumar sen dated 6 10 1980 would operate as res judicata since the state did not challenge the same. from the order in question which has been annexed as annexure p to the special leave petition c no 13314 of 1992it appears that the order was passed on the application on one of the members of sarkar family mr pulak sarkar. the state of west bengal was neither a party to the proceedings nor was noticed by the high court before passing the order. the order was in fact a direction to the collector 24 paraganas who had been appointed as a receiver by the supreme court in the pending appeal before it. no reasons have been given by the learned judge in issuing the said directing and on the other hand the order appears to be bald order calling upon and thereafter carry out the directions of the honourable supreme court in respect of the same. the aforesaid order can not be held to operate as res judicata taking away the rights of the state of west. bengal in respect of the nalban fishery as the state was not a party to the proceedings. besides the direction of the learned judge to the effect the collector24 paraganas is directed to allow messers ghose and saha surveyors to make proper demarcation in the nalban fishery dividing the same in two lots. after such demarcation is made the commissioner of partition is directed to approve the same and carry out the direction of the honble supreme court in respect thereof. does not in any way take away rights of the state of west. bengal which is otherwise protected by the supreme court while passing the compromise decree. the direction of the learned single judge on the other hand is to carry out the directions of the supreme court in respect of the nalban fishery. in view of our earlier conclusion that the rights and interest of the state of west bengal was not in any way be affected by the so called partition and allotment of the nalban fishery inter se amongst the members of the sarkar family the said order dated 63 10 1980 passed by the learned single judge of the calcutta high court will not stand on the way of the state in claiming and putting forth its interest and right over the nalban fishery. the contention of mr gupta appearing for the respondents therefore cannot be sustained. the next question that arises for consideration is what is the effect of the amendment to the west bengal land reforms act which was amended in the year 1986 but with retrospective effect. by virtue of the extended definition of land in section 2 7 and the amended provisions of section 3a of the land reforms act tank fishery like nalban fishery come within the definition of and it vests in the state by operation of section 31 read with section 14. it is no doubt true that a writ petition has been filed challenging the validity of the aforesaid act and notification issued there under in relation to vary nalban fishery which is still pending and therefore it would not be proper for us to examine the provisions of the emended west bengal land reforms act and to express any opinion thereon. suffice it to say that under the amended provisions of the west bengal land reforms act tank fishery being included in the land would vest in the state by combined reading of sections 3a and 14 and therefore the state can not be divested of the rights accruing by the amended provisions until the amended provisions are declared invalid by a competent court of law. since we have been informed that the writ petition challenging the amended act is still pending in the calcutta high court we may observe that our conclusion hereunder in relation to applicability of the amended provisions of the west bengal land reforms act so far as nalban fishery is concerned would be subject to the constitutionality itself to be decided by the high court in the pending writ petition. in view of our aforesaid conclusions the impugned directions of the learned single judge as well as of the division bench are set aside and these appeals are allowed. the injunction order issued against bansilal farms appellant in appeal arising out of slp c no 13314 of 1992stands vacated. we would further observe that the state should determine the amount of compensation which the sarkar family is entitled to under the relevant provisions of the act under which nalban fishery vests with the state of west bengal and the compensation amount be paid on being determined in accordance with the law to the family members of sarkar family in whose favour nalban fishery had been allotted under the compromise decree by this court. there will be no order as to costs. order accordingly.

FACTS the respondents are the members of one sarkar family in the city of calcutta. the dispute centres around a fishery called nalban fishery. a suit for partition was filed by one of the co-sharers of said sarkar family in the high court of calcutta. a learned single judge of the calcutta high court passed a preliminary decree in the said suit. one of the co-sharers of the sarkar family preferred an appeal against the preliminary decree before the division bench. during the pendency of the aforesaid appeal the state of west bengal requisitioned large extent of fisheries including the disputed nalban fishery, in exercise of power under section 3(1) of the west bengal land requisition and acquisition act of 1948. members of the sarkar family challenged the order of requisition by filing a writ petition in calcutta high court which was was dismissed by the learned single judge. sc had directed that the state of west bengal will be made a party to the proceeding and further the collector parganas was appointed as receiver in respect of the fisheries owned by the sarkar family. the court had also further directed that the collector will be the receiver in respect of the fisheries which has not already been vested in the state and whose possession has not already been taken over by the state. pursuant to the aforesaid order appointing collector 24 parganas as receiver,the collector 24 parganas took possession of the fisheries including nalban fishery as receiver and submitted a compliance report to the registrar of this court. the collector 24 parganas who had been appointed as receiver realised that he could not have taken possession of nalban fishery as receiver since the said fishery had already been in possession of the state of west bengal pursuant to requisition order. the receiver,therefore,intimated to the registrar of this court the mistake committed by him in his earlier report and expressed apology to this court for the mistake committed in the earlier report. while the matter stood thus in relation to the aforesaid nalban fishery,the government of west bengal handed over the possession of the said nalban fishery to the director of inland fisheries,state fisheries development corporation for undertaking fisheries development scheme. the aforesaid corporation issued an advertisement for auctioning the nalban fishery for a boating complex. the sarkar family thereupon filed an application before the calcutta high court contending inter alia that under the decree passed in the partition suit by the supreme court the property belongs to the sarkar family and could not have been handed-over to the state of west bengal. that application was disposed of by the learned single called upon the collector 24 parganas who was the receiver pursuance to the orders of the supreme court to take over the possession of nalban fishery from the state of west bengal and give vacant possession of the same to the sarkar family. ARGUMENT a compromise decree between the parties in a suit for partition will not in army way affect the rights of the state in respect of the fisheries whether such rights the state acquires by virtue of an order of requisition under the requisition act or by virtue of any other statutory provisions under which the fisheries right vest in the state. on the amendment of the west bengal land reforms act in the year 1936 giving it retrospective effect and defining land to include tank -fishery the nalban fishery vests in the state of west bengal. nalban fishery having been vested in the state of west bengal under the provisions of west bengal under the provisions of west bengal acquisition act,1955,the state cannot get rid of the direction given by the supreme court to the receiver to handover possession of the various fisheries covered by the final decree to the parties to whom they have been allotted under the decree and the nalban fishery being one such fishery,the possession thereof was required to be given to the person in whose favour the said fishery has been allotted. ISSUE whether in the suit for partition amongst the members of the sarkar family which was ultimately disposed of by a compromise decree in this court nalban fishery had been allotted to some members of the sarkar family and whether such decree would affect the rights of the state and bind the state of west bengal. ANALYSIS the nalban fishery was one of the items of property in the suit for partition is not disputed. it is also not disputed that the state of west bengal though was not a party to the suit but in course of proceeding before this court by an order of the court the said state of west bengal was impleaded as a party. the aforesaid order directing impleadment of the state of west bengal as a 7 party was obviously intended for the purpose that the interest of the state and the rights of the state in relation of the state and the rights of the state in relation of the state and the rights of the state in relation to several fisheries could be protected. further while directing the receiver to handover possession of the various fisheries covered by the final decree to the parties to whom they have been allotted under the decree,this court also protected the interest of the state by observing that they made it quite clear that this will not in any manner prejudice or affect the right of the state to its claim over the fisheries under the west bengal acquisition act 1955 or under any other statute. it is an undisputed fact that nalban fishery had been requisitioned much prior to the aforesaid decree of this court and,therefore,the rights of the state to the fishery either by virtue of the requisition order or by virtue of any provision of any other statute remained protected and as such said state of west bengal can't be bound down by the so-called allotment of fisheries in favour of some members of the sarkar family under the compromise decree in question. the district magistrate 24 parganas who was appointed as receiver took possession of several fisheries including nalban fishery obviously on the impression that the lease in respect of the said fishery which had been granted by the sarkar family had lapsed. the said receiver was not aware of the fact that nalban fishery had in fact requisitioned by the state of west bengal and the state is in possession of the same. the successor receiver,in the circumstances,therefore,was fully justified in bringing it to the notice of this court by giving a second report indicating therein that his predecessor had erroneously taken the possession of nalban fishery which is in contravention of the directions of this court and for which the receiver offered his unconditional apology. the court did not find any illegality in the act of the succeeding receiver in rectifying the earlier mistake and re-delivering the possession of nalban fishery to the state of west bengal. the aforesaid order cannot be held to operate as res judicata taking away the rights of the state of west bengal in respect of the nalban fishery as the state was not a party to the proceedings. the rights and interest of the state of west bengal was not in any way be affected by the so-called partition and allotment of the nalban fishery inter se amongst the members of the sarkar family,the order passed by the learned single judge of the calcutta high court will not stand on the way of the state in claiming and putting forth its interest and right over the nalban fishery. STATUTE the suit ultimately no doubt was disposed of on the basis of a compromise arrived at between the parties but the court took sufficient care in disposing of the appeals on the terms of compromise by observing that the state has substantial interest with regard to fisheries rights covered by the litigation and nothing in the decree will not affect the rights of the state of west bengal in any manner whatsoever to the fisheries in question if they are vested in the state under the provisions of west bengal estates acquisition act,1953. by virtue of the extended definition of 'land' in section 2 (7) and the amended provisions of section 3(a) of the land reforms act,tank fishery,like nalban fishery come within the definition of and it vests in the state by operation of section 3(1) read with section 14. the nalban fishery had been requisitioned by the state of west bengal in exercise of power under section 3(1) of the west bengal land requisition and acquisition act is not disputed and cannot be disputed.

FACTS the respondents are the members of one sarkar family in the city of calcutta. the dispute centres around a fishery called nalban fishery. a suit for partition was filed by one of the co-sharers of said sarkar family in the high court of calcutta. the schedule of properties included the disputed nalban fishery. a learned single judge of the calcutta high court passed a preliminary decree in the said suit. one of the co-sharers of the sarkar family preferred an appeal against the preliminary decree before the division bench. during the pendency of the aforesaid appeal the state of west bengal requisitioned large extent of fisheries including the disputed nalban fishery, in exercise of power under section 3(1) of the west bengal land requisition and acquisition act of 1948. members of the sarkar family challenged the order of requisition by filing a writ petition in calcutta high court which was was dismissed by the learned single judge. sc had directed that the state of west bengal will be made a party to the proceeding and further the collector parganas was appointed as receiver in respect of the fisheries owned by the sarkar family. the court had also further directed that the collector will be the receiver in respect of the fisheries which has not already been vested in the state and whose possession has not already been taken over by the state. pursuant to the aforesaid order appointing collector 24 parganas as receiver,the collector 24 parganas took possession of the fisheries including nalban fishery as receiver and submitted a compliance report to the registrar of this court. it may be noted that nalban fishery had been requisitioned by the state of west bengal under the provisions of requisition act and possession thereof had been taken and the sarkar family had challenged the said order unsuccessfully which final by the dismissal of the special leave petition by this court. the collector 24 parganas who had been appointed as receiver realised that he could not have taken possession of nalban fishery as receiver since the said fishery had already been in possession of the state of west bengal pursuant to requisition order. the receiver,therefore,intimated to the registrar of this court the mistake committed by him in his earlier report and expressed apology to this court for the mistake committed in the earlier report. while the matter stood thus in relation to the aforesaid nalban fishery,the government of west bengal handed over the possession of the said nalban fishery to the director of inland fisheries,state fisheries development corporation for undertaking fisheries development scheme. the aforesaid corporation issued an advertisement for auctioning the nalban fishery for a boating complex. the sarkar family thereupon filed an application before the calcutta high court contending inter alia that under the decree passed in the partition suit by the supreme court the property belongs to the sarkar family and could not have been handed-over to the state of west bengal. that application was disposed of by the learned single called upon the collector 24 parganas who was the receiver pursuance to the orders of the supreme court to take over the possession of nalban fishery from the state of west bengal and give vacant possession of the same to the sarkar family. ARGUMENT a compromise decree between the parties in a suit for partition will not in army way affect the rights of the state in respect of the fisheries whether such rights the state acquires by virtue of an order of requisition under the requisition act or by virtue of any other statutory provisions under which the fisheries right vest in the state. on the amendment of the west bengal land reforms act in the year 1936 giving it retrospective effect and defining land to include tank -fishery the nalban fishery vests in the state of west bengal. nalban fishery having been vested in the state of west bengal under the provisions of west bengal under the provisions of west bengal acquisition act,1955,the state cannot get rid of the direction given by the supreme court to the receiver to handover possession of the various fisheries covered by the final decree to the parties to whom they have been allotted under the decree and the nalban fishery being one such fishery,the possession thereof was required to be given to the person in whose favour the said fishery has been allotted. ISSUE whether in the suit for partition amongst the members of the sarkar family which was ultimately disposed of by a compromise decree in this court nalban fishery had been allotted to some members of the sarkar family and whether such decree would affect the rights of the state and bind the state of west bengal. ANALYSIS the calcutta high court,both the learned single judge as well as the division bench committed serious error of law in directing the receiver to take possession of nalban fishery from the state of west bengal and deliver-the vacant possession of the same to the members of the sarkar family. the nalban fishery was one of the items of property in the suit for partition is not disputed. it is also not disputed that the state of west bengal though was not a party to the suit but in course of proceeding before this court by an order of the court the said state of west bengal was impleaded as a party. the aforesaid order directing impleadment of the state of west bengal as a 7 party was obviously intended for the purpose that the interest of the state and the rights of the state in relation of the state and the rights of the state in relation of the state and the rights of the state in relation to several fisheries could be protected. further while directing the receiver to handover possession of the various fisheries covered by the final decree to the parties to whom they have been allotted under the decree,this court also protected the interest of the state by observing that they made it quite clear that this will not in any manner prejudice or affect the right of the state to its claim over the fisheries under the west bengal acquisition act 1955 or under any other statute. it is an undisputed fact that nalban fishery had been requisitioned much prior to the aforesaid decree of this court and,therefore,the rights of the state to the fishery either by virtue of the requisition order or by virtue of any provision of any other statute remained protected and as such said state of west bengal can't be bound down by the so-called allotment of fisheries in favour of some members of the sarkar family under the compromise decree in question. the district magistrate 24 parganas who was appointed as receiver took possession of several fisheries including nalban fishery obviously on the impression that the lease in respect of the said fishery which had been granted by the sarkar family had lapsed. the said receiver was not aware of the fact that nalban fishery had in fact requisitioned by the state of west bengal and the state is in possession of the same. the successor receiver,in the circumstances,therefore,was fully justified in bringing it to the notice of this court by giving a second report indicating therein that his predecessor had erroneously taken the possession of nalban fishery which is in contravention of the directions of this court and for which the receiver offered his unconditional apology. the court did not find any illegality in the act of the succeeding receiver in rectifying the earlier mistake and re-delivering the possession of nalban fishery to the state of west bengal. the aforesaid order cannot be held to operate as res judicata taking away the rights of the state of west bengal in respect of the nalban fishery as the state was not a party to the proceedings. the rights and interest of the state of west bengal was not in any way be affected by the so-called partition and allotment of the nalban fishery inter se amongst the members of the sarkar family,the order passed by the learned single judge of the calcutta high court will not stand on the way of the state in claiming and putting forth its interest and right over the nalban fishery. STATUTE the suit ultimately no doubt was disposed of on the basis of a compromise arrived at between the parties but the court took sufficient care in disposing of the appeals on the terms of compromise by observing that the state has substantial interest with regard to fisheries rights covered by the litigation and nothing in the decree will not affect the rights of the state of west bengal in any manner whatsoever to the fisheries in question if they are vested in the state under the provisions of west bengal estates acquisition act,1953. by virtue of the extended definition of 'land' in section 2 (7) and the amended provisions of section 3(a) of the land reforms act,tank fishery,like nalban fishery come within the definition of and it vests in the state by operation of section 3(1) read with section 14. the nalban fishery had been requisitioned by the state of west bengal in exercise of power under section 3(1) of the west bengal land requisition and acquisition act is not disputed and cannot be disputed.

this appeal by special leave is from the judgment and order of the high court of andhra pradesh dated 15th april1986. on or about th of april 1948 sail nawaz jung the then ruler of mukkalla state south yeman in arabia settled some of the properties with which the appeal is concerned by a registered tamleeknama in favour of his son sultan awaz and his grandson galib bin awaz. in 1954there was wakfnama by the said sail nawaz jung. on or about 23rd of august1963. the military estate officer secunderabad of. andhra pradesh requested for the requisition of the property named as sail gulshan with a vast extent of land and palaces with roads and surrounded by a compound wail measuring 19 acres and 10 guntas situated in the heart of hyderabad city near sarojini devi hospital. the property in question was taken possession of on or about 12th of september1963. in this appeal we are concerned with the claim for compensation for the said acquisition by one abdul khader who was a flower picker. he had claimed rights as a tenant during the requisition. his claim for compensation for requisition was settled by sharing the rent in or about 1969 the appellant is one of the owners of the property in question deriving their title and right from the said sail nawaz jung. on or about 3rd february1970 the collector issued notice for acquisition of the property u s 71 of the requisitioning and acquisition of immovable property act1952 being act 30 of 1952. hereinafter called the central act the gazette notification for the acquisition was issued on 12th march1970 the controversy in this case relates to the question whether abdul khader was a protected tenant under the andhra pradesh telangana area. tenancy and agricultural lands act1950 being. act no xxi of 1950. hereinafter called the andhra pradesh act. the purpose of the said act as the preamble states was inter alia to enable the land holders to prevent the excessive sub division of agricultural holdings and empower government to assume in certain circumstances the management of agricultural lands to provide for the registration of co operative farms and to make further provision for matters incidental thereto. s 2r states that the expression protected means a person who is deemed to be a protected tenant under the provisions of the said act. chapter iv of the andhra pradesh act deals with protected tenants and s 34 of the said act provides who is to be considered as a protected tenant and uses the expression that a person shall subject to the provisions of sub ss 2 and 3be deemed to be a protected tenant in respect of the land if he has fulfilled the conditions mentioned in clauses a and b of sub s 1 of s 34 of the said act. sub s 2 of s 34 of the said act also deals with to be deemed to be a protected tenant in respect of any landfor certain purposes. s 35 of the said act deals with decision on claims and stipulates by sub s 1 of s 35 of the said act that if any question arises whether any person and if so what person is deemed under s 34 to be a protected tenant in respect of any land the landholder or any person claiming to be so deemed may within one year from the commencement of the act apply in the prescribed form to the tahsildar for the decision of the question and the tahsildar shall after enquiring into the claim or claims in the manner prescribed declare what person is entitled to be deemed to be protected tenant or as the case may be that no person is so entitled. sub s 2 of s 35 stipulates that a declaration by the tahsildar that the person is deemed to be a protected tenant or in the event of an appeal from the tahsildar 's decision such declaration by the collector on first appeal or by the board of revenue on second appeal shall be conclusive that such person is a protected tenant and his rights as such shall be recorded in the record of right of where there is no record of rights in such village record as may be prescribed. s 36 of the said act deals with the recovery of possession by protected tenant. s 37 deals with persons not entitled under s 34 to be deemed in certain circumstances as protected tenants. s 38 of the said act deals with right of protected tenant to purchase land. s 39 deals with right of protected tenants to exchange lands. s 40 of the said act makes rights of protected tenant heritable. sub s 2 of s 40 of the said act indicates who are the heirs who would be entitled to hold the tenancy on the death of the protected tenant and on what terms. sub s 3 of s 40 of the said act provides that if a protected tenant dies without leaving any heirs all his rights shall be so extinguished. the explanation to sub s 3 of s 40 of the said act provides who should be deemed to be the heirs of a protected tenant. subs 4 of s 40 stipulates that the interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent. it is necessary also to note the provisions of s 99 of the act. it is as follows 99 bar of jurisdiction 1. save as provided in this act. no civil court shall have jurisdiction to settle decide or deal with any question which is by or under this act required to be settled decided or dealt with by the tahsildar tribunal or collector or by the board of revenue or government. no order of the tahsildar tribunal or collector or of the board of revenue or government made under this act shall be questioned in any civil or criminal court. s 102 of the said act stipulates that the act shall not apply to certain lands and areas and provides inter alia as follows 102 nothing in this act shall apply to lands leased granted alienated or acquired in favour of or by the central government or the state government a local authority or a cooperative society. it is relevant at this stage to refer to certain provisions of the central act to consider the controversy involved in this appeal the central act was enacted giving power for requisitioning and acquisition of immovable property for union purposes. s 3 of the said act gave power to requisition immovable property. s 4 of the said act empowers taking possession of requisitioned property. s 5 deals with rights over requisitioned property. s 6 deals with the power of release from the requisitioning. s 7 authorises the central government where it is of the opinion that it is necessary to do so to acquire requisitioned property. s 8 deals with principles and method of determining compensation either for requisitioning or acquisition of the property and inter alia provides for appointment of an arbitrator in certain contingencies in case there was no agreement for determining compensation. s 9 deals with the payment of compensation and provides that the amount of compensation payable under an award shall subject to any rules made under that act be paid by a competent authority to the person or persons entitled thereto in such manner and within such time as may be specified in the award. suspecting that the entry in the protected tenancy register might not be genuine on or about 24th of october1970 the tahsildar passed an order cancelling that entry. the main question centres around the right of abdul khader respondent no 1 herein to the compensation awarded by the arbitrator it is therefore necessary to refer to the relevant portion of the said order which inter alia stated as follows by perusal of the tenancy register of 1958 it is evident that sri mohd abdul khader is not a genuine protected tenant. the entries of this particular so called tenant is doubtful. i suspect that somebody has tampered the register and entered the name of sri mohd abdul khader. separate enquiry in this connection is going on in this office to know under what circumstances such entry has been made and copy also issued without knowledge of the tahsildar. hence i suspect the entry and order to cancel the copy of the tenancy issued in favour of sri modh. sd tahsildar. hyderabad west taluk. this order of cancellation was challenged by abdul khadar by filing a writ petition in the high court of andhra pradesh being w p no 1786 of 197 1 and by judgment and order passed on 27th august197. 1the learned single judge vaidya j held inter alia as follows whether the petitioner abdul khader is a protected tenant or whether he has any prima facie interest in the suit property are matters entirely within the sole jurisdiction of the arbitrator who has to be appointed under s 8 of the central act. in the appeal of abdul khader the proceedings of revenue divisional officer while questioning entry of the name of abdul khader in the register is a genuine one or net and while it is stated that it was entered in the register in such suspicious way by giving serial no 1 a between serial nos 1 and 2 of register being exhibit a 106 and exhibit a 107it ultimately held that abdul khader was a protected tenant under section 37a of the andhra pradesh act. on or about 19th of april1972. the order was passed by the district revenue officer who held that abdul khader was not a protected tenant. he held further that khasra pahani which is the basic record of occupancy period after spot inspections does not find the name of abdul khader and further held that all entries except this entry in the protected tenancy register prepared under section 37a of the andhra pradesh act was supported by an enquiry. it was in those circumstances held by him that the entry was a spurious one. in civil revision petition no 1006 of 1972 which was filed by abdul khader as against others justice r ramachandra raju of the andhra pradesh high court on or about 19th august1974 held that abdul khader was not a protected tenant and directed deletion of entry made in the final record of tenancies as a spurious one. the learned judge observed inter alia as follows i am told by the counsel for both the parties that the lands in question were already acquired for military purpose under the requisition and acquisition of immovable property act1952 and that sri m s sharma the additional chief judge city civil court hyderabad has already been appointed as arbitrator under the act for determining the compensation and the persons entitled to it. not only that in the writ petition filed by the present petitioner in this court it was held that it is not necessary to go into the question whether the petitioner is a protected tenant or whether he has any prima facie interest in the property because they are the matters entirely within the sole jurisdiction of the arbitrator who has to be appointed under s 8 of the act. now as the arbitrator has already been appointed he will go into the matter as to whether the petitioner was a protected tenant of the lands or not and if he was the protected tenant to what share in the compensation amount he would be entitled to. under these circumstances the c r p is dismissed with a direction that the entry made in the final record of tenancies that the petitioner was the protected tenant for the lands in question which is spurious as found by both the revenue divisional officer and the district revenue officer should be deleted. the matter was brought to this court by a special leave application and this court in special leave petition civil no 10 of 1975 on or about 30th january 1975 held that since the question whether the petitioner in that case namely abdul khader was a protected tenant had been left open by the high court to be decided by the arbitrator u s 8 of the central act special leave petition was rejected with those observations. thereafter there was an order appointing arbitrator on 29th of march1975. u s 81b of the central act. claim petition was filed by the appellant before the arbitrator claim petition was also filed by abdul khader claiming 60 of compensation as a protected tenant. there was an award by the arbitrator holding that as this court had left it open to decide whether abdul khader was a protected tenant. despite the objection exercising the jurisdiction of the arbitrator to go into the question of protected tenant the arbitrator held that abdul khader was a protected tenant. aggrieved by the aforesaid award the appellant claiming as one of the owners of the property filed a statutory appeal to the high court. in the meantime abdul khader filed an application on or about 21st of october1984 for adducing additional evidence to mark kaulnama dated 2nd of december1950 for the first time and oubuliatnama dated 2nd december1950 as exhibits in deciding the protected tenancy rights. the appellant objected to that application but the high court on 1st april1985. appointed advocate commissioner to record additional evidence. on or about 22nd of april1985. the appellant filed the objection reserving the right of raising the jurisdiction of the arbitrator to go into the question whether abdul khader was a protected tenant in the light of the act 21 of 1950 three civil appeals were filed before this court against the order of the high court on 15th may1985 this court passed the order on 19th august1985 the said order is important and reads as follows special leave are granted. the appeal is heard. dr chitale learned counsel for the appellants submitted that the high court should be directed to consider the issues relating to the jurisdiction of the arbitrator appointed and functioning under the requisitioning and acquisition of immovable property act195 i to decide whether a person is protected tenant of an agricultural land or not in the light of ss 99 and 102 of the andhra pradesh telangana area. tenancy and agricultural land act1950 we have heard the learned counsel for the respondents on the above question. after giving our due consideration to the question we are of the view that the high court should determine this question. the high court shall decide the question of jurisdiction referred to above in light of the submissions to be made by both the parties. shri subba rao learned counsel for the respondents submits that the appellants should not be permitted to withdraw from the authorities concerned more than 40 per cent of the total compensation awarded in respect of the lands in question pending disposal of the appeal before the high court. we agree with his submission. we direct that the appellants shall withdraw not more than 40 per cent of the compensation pending disposal of the appeal before the high court. the remaining 60 per cent shall be disbursed in accordance with the directions to be given by the high court after hearing all the parties concerned. the appeals were disposed of accordingly. other c m ps were filed for clarification of the second part of the order dated 19th august1985 and this court on 29th november1985 in cmps. nos 4692 to 4694 of 1985 clarified and ob served that there was no need for further clarification. it was observed that the high court was at liberty to consider the claims to be made by both the parties and pass any fresh order with regard to the disbursement of the remaining 60 of the compensation. the judgment under appeal was passed on 15th of april1986 this appeal arises out of the said judgment. in the judgment under appeal which is directed against the award made by the arbitrator formulated the following four issues 1 what is the value of the land 2 who are entitled to the compensation amount 3 whether abdul khader is a protected tenant of sail gulshan of the area 19 02 guntas excluding the land of buildings wells etc and 4 what share is to be apportioned to successors of sail nawaz jung. it has to be borne in mind that in the award the arbitrator after exhaustively discussing the evidence on record held that abdul khader was a protected tenant and as such further held that he was entitled to 60 of the compensation money payable for the acquisition of the land excluding the land of buildings wells etc. in this appeal we are concerned with the question whether the high court was right in upholding the award of the arbitrator so far as it has held in favour of abdul khader and his rights to get 60 of the compensation. the high court dealt with the value of the land. we are not concerned with the challenge to this aspect in this appeal. the high court further modified a portion of the order in view of the decision of this court in bhag singh v union territory of chandigarh. a i r 1985 s c 1576 1985 indlaw sc 246 on the question of solarium and interest on the amount awarded. the judgment also dealt with the question as to who were the successors of nawaz jung. we are also not concerned with this aspect of the matter inasmuch as the same is the subject matter of another appeal being civil appeal no 4406 of 1986. we are concerned in this appeal with the right of abdul khader. the high court discussed 18 documents out of which two are challans and other depositions. kowlnama executed in favour of shaik hussain was not filed. the kowlnama executed in favour of the son mohd. abdul khader on december 31950 was filed and was marked as exhibit c 1 the document recited permitted to utilise garden fruits flowers and mango. fruits. the tenant was permitted to raise flower trees at his own expenses. the high court took into consideration the judgment in suit no 131 of 195 1 52 by the tenant. the high court on consideration of these documents was of the view that these documents showed unequivocally that the tenancy was in favour of shaik hussain from 1935 after his death mohd abdul khader was recognised as the tenant. the land was taken possession of under a panchanama dated 12th of september1963 according to the high court the documents discussed in the judgment indicated that shaik hussain was a tenant from 1935 after his death on july 181949his son mohd abdul khader became a tenant. in this background the court addressed itself to the question whether abdul khader was a protected tenant or not entitled to 60 of the compensation. no document was filed to show that abdul khader was declared by the revenue courts as a protected tenant. the high court was of the view that there was surfeit of evidence prior to the commencement of the andhra pradesh act that shaik hussain was a tenant of the land. the question was whether on enforcement of the said act abdul khader respondent herein was a protected tenant. the high court thereafter discussed the facts mentioned hereinbefore about the order of the district revenue officer and the orders of this court referred to hereinbefore. the high court noticed the position that under the said andhra pradesh act it was for the revenue authorities to order whether a tenant is a protected tenant under section 34s 37 and section 37a of the said act. section 37a was enacted on 12th of march1956 the high court was however of the view that it can not be said that it was for the revenue authorities alone to decide the issue because the arbitrator was ordered to decide the issue by the high court on 19th august1974 and by this court on 30th of january1975 the high court also referred to the directions of this court dated 19th august1985 mentioned hereinbefore. the high court was of the view that the arbitrator was to decide that question and the arbitrator was not in error in deciding the issue in the manner it did. the court reiterated that there was surfeit of evidence to declare that abdul khader was a tenant. if he was a tenant the high court observed he was a protected tenant under s 34 read with s 37 or under section 37 a of the andhra pradesh act. the high court on reciting the facts came to the conclusions inter alia. a that abdul khader because he was a tenant between january1942 to january1948 for six years therefore was a protected tenant under sub cl ii of cl 1 of s 34 of the andhra pradesh act b that abdul khader held the land from october1943 to october1949therefore was a protected tenant of sail gulshan under sub cl iii of cl 1 of s 34 of act 21 of 1950 in these circumstances the high court held that adbul khader was entitled to 60 of the compensation paid. aggrieved by the aforesaid decision the appellants being the successor of the owner of the land in question is in appeal before us. shri shanker ghosh learned counsel for the appellant urged that under the said andhra pradesh act it was mandatory under s 99 read with s 102 of the said act in conjunction with the definition of s 2r of the act for the revenue authorities to decide whether abdul khader was a protected tenant or not. there being no such finding by the revenue officer on the other hand there being a finding mat abdul khader was not a protected tenant by the revenue authorities it was not open to the arbitrator to decide the question of protected tenancy. the arbitrator therefore exceeded his jurisdiction and the high court was in error. shri a k sen on behalf of the respondents on the other hand contended that the compensation payable in respect of the requisitioning and acquisition must be determined under the central act and the arbitrator was the authority to decide that question. the question of abdul khader 's right to compensation had to be decided in accordance with law. he had claimed rights of a protected tenant. he had sought to establish his rights which must be found within the four corners of the andhra pradesh act along with other documents because u s 404 of the andhra pradesh act the interest of a protected tenant in the land held by him as a protected tenant formed 60 the rights of the protected tenants have been defined in the andhra pradesh act and relevant provisions of that act namely sections 343737a and 40 in conjunction with the definition under s 2r have to be taken into consideration in the background of the facts and circumstances of the case. the two orders of this court as we have mentioned hereinbefore dated 30th of january1975 and 19th of august 1985 reiterated the position that it was for the arbitrator to decide the question and he should decide the question in the light of ss 99 and 102 of the andhra pradesh act as set out hereinbefore. on behalf of the appellant it was submitted that there was a complete bar for any civil court to go into the question whether abdul khader was a protected tenant and as such the arbitrator and the high court had no jurisdiction to decide this question. for this reliance was placed on s 102 of the andhra pradesh act which lays down that the act will not apply to lands leased granted alienated or acquired in favour of or by the central government or the state government etc and on s 99 of the act which bars the jurisdiction of civil courts to deal with any question which is under the andhra pradesh act required to be settled to be decided or dealt with by the tahsildar tribunal or collector. according to the appellant inasmuch as whether abdul khader was a protected tenant had not to be settled by the collector or the tribunal the arbitrator and the high court were in error in going to that question. we are unable to accept this submission. by the scheme of the central act compensation was payable to persons who had interest in the land acquired. who are the persons who have interest in the land had to be decided in accordance with the law and the evidence. determination by the revenue authorities and non determination is not conclusive or decisive. it is clear that s 102 of the andhra pradesh act mentions that after acquisition the act was not to apply in respect of certain land. therefore it was submitted by the respondents that s 99 of the andhra pradesh act which made the determination by the tahsildar to be final and debarred other courts from going into the question did not apply in case of compensation payable. in the background of the totality of circumstances as manifest in the different orders it appeared to the arbitrator and the court that the entry which was made in favour of abdul khader as the protected tenant was of doubtful validity. we are of the opinion that the high court was not in error in so holding. it was the observation of the revenue authorities that it was spurious. that in any event what was the interest of abdul khader had to be determined in determining the question of payment of compensation to him and in so determining the facts and circumstances and the proceedings before the revenue authorities and entries and subsequent deletions had to be taken into consideration by the arbitrator. the arbitrator has done so. he had jurisdiction to do so. the high court has so held. this court by the two orders referred to hereinbefore had also affirmed this position. in that view of the matter we are unable to accept the challenge to the award. furthermore under s 99 of the andhra pradesh act the bar was not against the arbitrator but against a civil court. in determining the amount of compensation payable to abdul khader under the central act his interests in the property had to be determined. in another context the high court of andhra pradesh enunciated the position that it was necessary to determine the interest of the persons claiming compensation. reference may be made to the decision in the case of archi appalareddi and another v special tahsildar land acquisition visakhapatnam municipality and mother1979 andhra weekly reporter vol 1 p 101where the court observed in the context of the land acquisition act that a tenant was a person interested as defined in clause b of s 3 of the land acquisition act. he has a right to object to the acquisition andor the quantum of compensation. the land acquisition officer or the court as the case may be had to ascertain the value of a claimant 's right in the property acquired and compensate him in that behalf. we may mention that in the two orders of this court dated 30th of january1975 and 19th of august1985 referred to herein before this court had left it open to the high court and to the arbitrator to decide whether he is a protected tenant or not the arbitrator has decided that question and the high court found over whelming evidence in support of it. in that view of the matter we must uphold that decision however unsatisfactory. it might appear that a fruit pucker gets 60 of the compensation while the owners get only if that is the law. let it be. in the aforesaid view of the matter this appeal must fail and is accordingly dismissed with costs. appeal dismissed.

FACTS sail nawaz jung,the then ruler of mukkalla state,south yeman in arabia settled some of the properties with which the appeal is concerned by a registered tamleeknama in favour of his son sultan awaz and his grandson galib bin awaz. in 1954,there was wakfnama by the said sail nawaz jung. on or about 23rd of august,1963 the military estate officer,secunderabad of.andhra pradesh requested for the requisition of the property named as "sail gulshan" with a vast extent of land and palaces with roads and surrounded by a compound wail measuring 19 acres and 10 guntas situated in the heart of hyderabad city near sarojini devi hospital. the property in question was taken possession of on or about 12th of september,1963. the appeal concerned with the claim for compensation for the said acquisition by one abdul khader who was a flower picker. he had claimed rights as a tenant during the requisition. his claim for compensation for requisition was settled by sharing the rent in or about 1969. the appellant is one of the owners of the property in question deriving their title and right from the said sail nawaz jung. on or about 3rd february,1970 the collector issued notice for acquisition of the property u/s.7(1) of the requisitioning and acquisition of immovable property act,1952 being act 30 of 1952 (hereinafter called the central act). the gazette notification for the acquisition was issued on 12th march,1970. the controversy in this case relates to the question whether abdul khader was 'a protected tenant' under the andhra pradesh (telangana area) tenancy and agricultural lands act,1950. ARGUMENT under the said andhra pradesh act it was mandatory under s.99 read with s.102 of the said act in conjunction with the definition of s.2(r) of the act for the revenue authorities to decide whether abdul khader was a protected tenant or not. abdul khader was a protected tenant had not to be settled by the collector or the tribunal,the arbitrator and the high court were in error in going to that question. ISSUE whether the high court was right in upholding the award of the arbitrator so far as it has held in favour of abdul khader and his rights to get 60% of the compensation. ANALYSIS no document was filed to show that abdul khader was declared by the revenue courts as a protected tenant. there being no such finding by the revenue officer,on the other hand there being a finding mat abdul khader was not a protected tenant by the revenue authorities it was not open to the arbitrator to decide the question of protected tenancy. in determining the amount of compensation payable to abdul khader under the central act,his interests in the property had to be determined. reference may be made to the decision in the case of archi appalareddi and another v.special tahsildar,land acquisition,visakhapatnam municipality and mother,where the court observed in the context of the land acquisition act that a tenant was a 'person interested' as defined in clause (b) of s.3 of the land acquisition act. he has a right to object to the acquisition and/or the quantum of compensation. the land acquisition officer or the court,as the case may be,had to ascertain the value of a claimant's right in the property acquired and compensate him in that behalf. by the scheme of the central act compensation was payable to persons who had interest in the land acquired. who are the persons who have interest in the land had to be decided in accordance with the law and the evidence. determination by the revenue authorities and non-determination is not conclusive or decisive. it is clear that s.102 of the andhra pradesh act mentions that after acquisition the act was not to apply in respect of certain land. therefore,it was submitted by the respondents that s.99 of the andhra pradesh act.which made the determination by the tahsildar to be final and debarred other courts from going into the question did not apply in case of compensation payable. in the background of the totality of circumstances as manifest in the different orders it appeared to the arbitrator and the court that the entry which was made in favour of abdul khader as the protected tenant was of doubtful validity. we may mention that in the two orders of this court dated 30th of january,1975 and 19th of august,1985 referred to herein before,this court had left it open to the high court and to the arbitrator to decide whether he is a protected tenant or not. STATUTE s.2(r) of the andhra pradesh act states that the expression 'protected' means a person who is deemed to be a protected tenant under the provisions of the said act. chapter iv of the andhra pradesh act deals with protected tenants and s.34 of the said act provides who is to be considered as a protected tenant and uses the expression that a person shall,subject to the provisions of sub-ss.(2) and (3),be deemed to be a protected tenant in respect of the land if he has fulfilled the conditions mentioned in clauses (a) and (b) of sub-s.(1) of s.34 of the said act. sub-s.(2) of s.34 of the said act also deals with "to be deemed to be a protected tenant in respect of any land",for certain purposes. s.35 of the said act deals with decision on claims and stipulates by sub-s.(1) of s.35 of the said act that if any question arises whether any person,and if so what person,is deemed under s.34 to be a protected tenant in respect of any land,the landholder,or any person claiming to be so deemed,may,within one year from the commencement of the act apply in the prescribed form to the tahsildar for the decision of the question and the tahsildar shall after enquiring into the claim or claims in the manner prescribed,declare what person is entitled to be deemed to be protected tenant or as the case may be,that no person is so entitled. sub-s.(2) of s.35 stipulates that a declaration by the tahsildar that the person is deemed to be a protected tenant or,in the event of an appeal from the tahsildar's decision such declaration by the collector on first appeal or by the board of revenue on second appeal,shall be conclusive that such person is a protected tenant and his rights as such shall be recorded in the record of right of where there is no record of rights in such village record as may be prescribed. s.36 of the said act deals with the recovery of possession by protected tenant. s.37 deals with persons not entitled under s.34 to be deemed in certain circumstances as protected tenants. s.38 of the said act deals with right of protected tenant to purchase land. s.39 deals with right of protected tenants to exchange lands. s.40 of the said act makes rights of protected tenant heritable. sub-s.(2) of s.40 of the said act indicates who are the heirs who would be entitled to hold the tenancy on the death of the protected tenant and on what terms. sub-s.(3) of s.40 of the said act provides that if a protected tenant dies without leaving any heirs all his rights shall be so extinguished. the explanation to sub-s.(3) of s.40 of the said act provides who should be 'deemed to be the heirs' of a protected tenant. subs.(4) of s.40 stipulates that the interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent. section 99-bar of jurisdiction:-(1) save as provided in this act no civil court shall have jurisdiction to settle,decide or deal with any question which is by or under this act required to be settled,decided or dealt with by the tahsildar,tribunal or collector or by the board of revenue or government. (2) no order of the tahsildar,tribunal or collector or of the board of revenue or government made under this act,shall be questioned in any civil or criminal court." s.102 of the said act stipulates that the act shall not apply to certain lands and areas and provides inter alia as follows: 102.nothing in this act shall apply-- to lands leased,granted,alienated or acquired in favour of or by the central government or the state government,a local authority or a cooperative society. s.3 of the said act gave power to requisition immovable property. s.4 of the said act empowers taking possession of requisitioned property. s.5 deals with rights over requisitioned property. s.6 deals with the power of release from the requisitioning. s.7 authorises the central government where it is of the opinion that it is necessary to do so to acquire requisitioned property. s.8 deals with 'principles and method of determining compensation either for requisitioning or acquisition of the property and,inter alia,provides for appointment of an arbitrator in certain contingencies in case there was no agreement for determining compensation. s.9 deals with the payment of compensation and provides that the amount of compensation payable under an award shall,subject to any rules made under that act,be paid by a competent authority to the person or persons entitled thereto in such manner and within such time as may be specified in the award.

FACTS sail nawaz jung,the then ruler of mukkalla state,south yeman in arabia settled some of the properties with which the appeal is concerned by a registered tamleeknama in favour of his son sultan awaz and his grandson galib bin awaz. in 1954,there was wakfnama by the said sail nawaz jung. on or about 23rd of august,1963 the military estate officer,secunderabad of.andhra pradesh requested for the requisition of the property named as "sail gulshan" with a vast extent of land and palaces with roads and surrounded by a compound wail measuring 19 acres and 10 guntas situated in the heart of hyderabad city near sarojini devi hospital. the property in question was taken possession of on or about 12th of september,1963. in this appeal we are concerned with the claim for compensation for the said acquisition by one abdul khader who was a flower picker. he had claimed rights as a tenant during the requisition. his claim for compensation for requisition was settled by sharing the rent in or about 1969. the appellant is one of the owners of the property in question deriving their title and right from the said sail nawaz jung. on or about 3rd february,1970 the collector issued notice for acquisition of the property u/s.7(1) of the requisitioning and acquisition of immovable property act,1952 being act 30 of 1952 (hereinafter called the central act). the gazette notification for the acquisition was issued on 12th march,1970. the controversy in this case relates to the question whether abdul khader was 'a protected tenant' under the andhra pradesh (telangana area) tenancy and agricultural lands act,1950. ARGUMENT under the said andhra pradesh act it was mandatory under s.99 read with s.102 of the said act in conjunction with the definition of s.2(r) of the act for the revenue authorities to decide whether abdul khader was a protected tenant or not. abdul khader was a protected tenant had not to be settled by the collector or the tribunal,the arbitrator and the high court were in error in going to that question. ISSUE in this appeal we are concerned with the question whether the high court was right in upholding the award of the arbitrator so far as it has held in favour of abdul khader and his rights to get 60% of the compensation.the high court dealt with the value of the land. ANALYSIS no document was filed to show that abdul khader was declared by the revenue courts as a protected tenant. there being no such finding by the revenue officer,on the other hand there being a finding mat abdul khader was not a protected tenant by the revenue authorities it was not open to the arbitrator to decide the question of protected tenancy. the arbitrator therefore,exceeded his jurisdiction and the high court was in error.under s.99 of the andhra pradesh act the bar was not against the arbitrator but against a civil court. in determining the amount of compensation payable to abdul khader under the central act,his interests in the property had to be determined. in another context,the high court of andhra pradesh enunciated the position that it was necessary to determine the interest of the persons claiming compensation. reference may be made to the decision in the case of archi appalareddi and another v.special tahsildar,land acquisition,visakhapatnam municipality and mother,where the court observed in the context of the land acquisition act that a tenant was a 'person interested' as defined in clause (b) of s.3 of the land acquisition act. he has a right to object to the acquisition and/or the quantum of compensation. the land acquisition officer or the court,as the case may be,had to ascertain the value of a claimant's right in the property acquired and compensate him in that behalf. by the scheme of the central act compensation was payable to persons who had interest in the land acquired. who are the persons who have interest in the land had to be decided in accordance with the law and the evidence. determination by the revenue authorities and non-determination is not conclusive or decisive. it is clear that s.102 of the andhra pradesh act mentions that after acquisition the act was not to apply in respect of certain land. therefore,it was submitted by the respondents that s.99 of the andhra pradesh act.which made the determination by the tahsildar to be final and debarred other courts from going into the question did not apply in case of compensation payable. in the background of the totality of circumstances as manifest in the different orders it appeared to the arbitrator and the court that the entry which was made in favour of abdul khader as the protected tenant was of doubtful validity. we may mention that in the two orders of this court dated 30th of january,1975 and 19th of august,1985 referred to herein before,this court had left it open to the high court and to the arbitrator to decide whether he is a protected tenant or not. the arbitrator has decided that question and the high court found over whelming evidence in support of it. in that view of the matter we must uphold that decision however unsatisfactory it might appear that a fruit pucker gets 60% of the compensation while the owners get only if that is the law let it be. STATUTE s.2(r) states that the expression 'protected' means a person who is deemed to be a protected tenant under the provisions of the said act. chapter iv of the andhra pradesh act deals with protected tenants and s.34 of the said act provides who is to be considered as a protected tenant and uses the expression that a person shall,subject to the provisions of sub-ss.(2) and (3),be deemed to be a protected tenant in respect of the land if he has fulfilled the conditions mentioned in clauses (a) and (b) of sub-s.(1) of s.34 of the said act. sub-s.(2) of s.34 of the said act also deals with "to be deemed to be a protected tenant in respect of any land",for certain purposes. s.35 of the said act deals with decision on claims and stipulates by sub-s.(1) of s.35 of the said act that if any question arises whether any person,and if so what person,is deemed under s.34 to be a protected tenant in respect of any land,the landholder,or any person claiming to be so deemed,may,within one year from the commencement of the act apply in the prescribed form to the tahsildar for the decision of the question and the tahsildar shall after enquiring into the claim or claims in the manner prescribed,declare what person is entitled to be deemed to be protected tenant or as the case may be,that no person is so entitled. sub-s.(2) of s.35 stipulates that a declaration by the tahsildar that the person is deemed to be a protected tenant or,in the event of an appeal from the tahsildar's decision such declaration by the collector on first appeal or by the board of revenue on second appeal,shall be conclusive that such person is a protected tenant and his rights as such shall be recorded in the record of right of where there is no record of rights in such village record as may be prescribed. s.36 of the said act deals with the recovery of possession by protected tenant. s.37 deals with persons not entitled under s.34 to be deemed in certain circumstances as protected tenants. s.38 of the said act deals with right of protected tenant to purchase land. s.39 deals with right of protected tenants to exchange lands. s.40 of the said act makes rights of protected tenant heritable. sub-s.(2) of s.40 of the said act indicates who are the heirs who would be entitled to hold the tenancy on the death of the protected tenant and on what terms. sub-s.(3) of s.40 of the said act provides that if a protected tenant dies without leaving any heirs all his rights shall be so extinguished. the explanation to sub-s.(3) of s.40 of the said act provides who should be 'deemed to be the heirs' of a protected tenant. subs.(4) of s.40 stipulates that the interest of a protected tenant in the land held by him as a protected tenant shall form sixty per cent. section 99-bar of jurisdiction:-(1) save as provided in this act no civil court shall have jurisdiction to settle,decide or deal with any question which is by or under this act required to be settled,decided or dealt with by the tahsildar,tribunal or collector or by the board of revenue or government. (2) no order of the tahsildar,tribunal or collector or of the board of revenue or government made under this act,shall be questioned in any civil or criminal court." s.102 of the said act stipulates that the act shall not apply to certain lands and areas and provides inter alia as follows: 102.nothing in this act shall apply-- to lands leased,granted,alienated or acquired in favour of or by the central government or the state government,a local authority or a cooperative society. s.3 of the said act gave power to requisition immovable property. s.4 of the said act empowers taking possession of requisitioned property. s.5 deals with rights over requisitioned property. s.6 deals with the power of release from the requisitioning. s.7 authorises the central government where it is of the opinion that it is necessary to do so to acquire requisitioned property. s.8 deals with 'principles and method of determining compensation either for requisitioning or acquisition of the property and,inter alia,provides for appointment of an arbitrator in certain contingencies in case there was no agreement for determining compensation. s.9 deals with the payment of compensation and provides that the amount of compensation payable under an award shall,subject to any rules made under that act,be paid by a competent authority to the person or persons entitled thereto in such manner and within such time as may be specified in the award.

the present appeal arises out of the judgment and order dated 01 07 2002 passed by the high court of bombay at goa in criminal appeal No 6 of 2000 convicting the accused appellant section 302 of the indian penal code for short the the ipc and sentencing him to undergo life imprisonment for the offence by setting aside the order of acquittal passed by the trial court. facts giving rise to the present appeal may be stated first so as to enable us to appreciate the arguments raised by the parties more effectively. on 19 04 1988 between 8 30 p m and 8 45 p m satish narayan sawant the appellant accused No 1 along with two other accused persons and also with two delinquent children allegedly formed an unlawful assembly and that in furtherance of the said common object stabbed one rauji dulba sawant the deceased and also assaulted baby dulba sawant pw 1 ashok dulba sawant pw 2 kunda rauji sawant pw 8 and laxmi dulba sawant pw 18 who are the sister brother wife and mother respectively of the deceased. it is also the case of the prosecution that as a result of the aforesaid stab injuries given to the deceased he expired on the same day i e on 19 04 1988. p s joaquim dias pw 21 who was attached to the ponda police station as p s i received a phone call at about 10 45 p m from p s i k k desai of the panaji police station that a person named rauji dulba sawant had been brought in police jeep by police constable jaisingrao rane and that while he was being taken to the goa medical college he expired. he was informed that the deceased had died as a result of stab injuries received and therefore he was to take necessary steps. on receipt of the aforesaid message pw 21 along with asi tabit mamlekar went to the scene of offence. they reached the scene of offence at about 11 30 p m but found the entire place plunged into darkness and with the help of torch light pw 21 surveyed the scene of offence. during the survey made at the place of occurrence pw 21 noticed some blood stains in the front courtyard of the house and a pipe of length of about 1 foot or slightly less lying in the courtyard having blood stains. thereafter pw 21 along with p i dsa gave a call to the inmates of the house to open the door and on hearing the call one lady opened the door. on enquiring from her pw 21 learnt that her name was yeshoda who was later on arrayed as accused No 3. two juvenile girls named sarita and sharmila who are the sisters of the appellant were found in the house. in the meantime pw 1 pw 2 and pw 8 came to the house from whom pw 21 made certain inquiries and brought them along with accused No 3 and her two juvenile girls to the police station. not finding the appellant and accused no 2 in the house dy. s p shri raikar and p i shri alan osa were sent in their search. after reaching the police station a complaint which is marked as exhibit pw 1 a was lodged by pw 1 in which it was alleged that pw 1 pw 8 pw 18 the deceased rauji and his brother narayan were residing in one house in banastari and they used to share a common kitchen between them. it was further alleged by pw 1 that two or three days before the ganesh festival deceased rauji had informed narayan that he would install statue of lord ganesh in the house and accordingly he had purchased the same. religious ceremony was performed by installing the statue of lord ganesh in the house and. while the said religious ceremony was being performed accused No 2 started uttering insults while standing in the kitchen. accused No 3 told the appellant not to do anything in the ceremony and insulted the family members of rauji. pw 1 also alleged that on 19 04 1988 the deceased rauji returned from his duty at about 6 30 p m and thereafter went to purchase some articles. on his return he went to take bath and after having bath he went and switched off the light of the room. as soon as the deceased switched off the light the appellant came from the room and started abusing rauji. there was a heated exchange of words between rauji and the appellant switched on the light which was again switched off by rauji the deceased. thereupon the appellant went and removed the fuse of the said light. accused No 3 had then lit a kerosene lamp and brought the same in the hall. there was already an oil lamp burning which was attached to the ceiling by a brass chain. meanwhile accused No 3 started abusing pw 1 pw 8 pw 18 and the deceased rauji. thereafter the appellant and the two other alleged accused namely accused nos 2 and 3 and the two juvenile offenders gathered in the hall to assault rauji the deceased pw 1 and pw 8. according to pw 1 in order to avoid the assault by all of them they went to bulcao balcony. when they went there the appellant went to his mother 's room and brought a knife with which he stabbed rauji. at that time all the accused persons were in the balcony. it was also alleged that after the deceased rauji fell down on the ground accused No 3 kicked him. at that time the appellant who was holding the knife in his hand handed over the same to accused No 3 by which she assaulted pw 8 but pw 8 caught the knife in her hand which caused injury to her right palm. thereafter according to pw 1 accused No 3 handed back the knife to the appellant and accused No 2 brought the oil lamp which was hung in the room and hit the oil lamp on the head of rauji the deceased. it was also alleged that when pw 8 tried to intervene the other three accused started assaulting her with fists and slaps. at that time pw 2 came there and questioned the accused persons as to what they were doing whereupon the appellant and accused No 2 started assaulting pw 2 also. then accused No 3 told the appellant and accused No 2 to finish off rauji first. pw 8 pw 18 and pw 1 then lifted rauji and brought him in the courtyard. in the meanwhile residents of the locality had gathered in the courtyard and told the accused persons not to assault rauji. the juvenile offender sarita went inside the house and brought out one iron pipe which she handed over to the appellant who then hit the said pipe on the right leg of pw 1 and also gave a blow with the said pipe on rauji 's right hand. it was also alleged that the other juvenile offender sharmila brought a cement block shaped like an elephant trunk which she handed over to accused No 3 with which accused No 3 started assaulting rauji. pw 1 however intervened and removed the said piece of cement block from the hand of accused No 3 but. accused No 3 then picked up one stone and tried to throw it on rauji by saying that she was going to kill him with that stone. however pw 1 again intervened and removed the said stone from the hand of accused no 3. pw 18 rushed to the rescue of deceased rauji. the accused then started assaulting her and pw 8 with slaps. in the meantime police jeep arrived at the scene and on seeing the police jeep all the accused ran away from the courtyard and went inside. pw 1 and others asked the police to take rauji to the hospital. whereupon the police took him to the hospital in the police jeep along with pw 1 pw 2 and pw 8. on the basis of complaint made by pw 1 an fir was registered and the accused came to be arrested. on completion of the investigation the police submitted the charge sheet against the accused persons namely the present appellant accused No 1 accused nos 2 and 3 and the two juvenile offenders namely sarita and sharmila. the trial court framed charges against all the accused persons for the offence under sections 302 323 143 147 and 149 of the ipc. the accused pleaded not guilty and claimed to be tried. since there were two juvenile offenders there cases were segregated and the trial against accused nos 1 2 and 3 was conducted during the course of which a number of eye witnesses were examined on behalf of the prosecution. after completion of the arguments the trial court reserved the verdict. the trial court passed an order on 04 08 1998 acquitting all the accused persons from the offences under sections 302 323 143 147 and 149 of ipc. being aggrieved by the aforesaid judgment and order of acquittal the state filed an appeal in the high court against accused nos. 1 to 3. the high court by impugned judgment convicted appellant. accused No 1 section 302 ipc and accused nos. 2 and 3 were held guilty of an offence punishable section 323 read with section 34 of the ipc. the appellant herein being aggrieved by the aforesaid order of conviction and sentence filed the present appeal on which we have heard the learned counsel appearing for the appellant and also the learned counsel appearing for the state. mr r sundaravardhan learned senior counsel appearing for the appellant very forcefully submitted that the high court was not justified in setting aside the order of acquittal passed in respect of the present appellant. he submitted that although the incident in question had taken place at about 8 45 p m the same came to be reported to the police at 3 00 a m he also submitted that the police officer pw 21 who received the information about the incident started investigation without recording either any general diary for short g d entry or the fir and therefore the fir which has been proved in the trial court is hit by the provisions of section 162 of the criminal procedure code for short the crpc. he also submitted that the high court has not given any reason for setting aside the appeal against acquittal which was passed after appreciating the entire evidence on record. he further submitted that there was not only shifting of time of the alleged occurrence but also shifting of the place of occurrence from the hall to the outside verandah and courtyard to suit the convenience of the prosecution case. he has drawn our attention towards the entire evidence on record including the cross examination part and with the help of the same he submitted that the entire alleged incident in question had taken place when there was complete darkness at the scene of occurrence. a scuffle started between the nephew and the uncle in which the accused persons also received injuries and therefore the right of private defence of the appellant was available and in that view of the matter the order of conviction and sentence is liable to be set aside. it was further submitted that the alleged eye witnesses of the occurrence were examined by the police belatedly and that the medical evidence adduced in the case does not in any manner support the ocular evidence and if at all it would not be a case of culpable homicide amounting to murder but a case of culpable homicide not amounting to murder. he also submitted that if two views are possible and if there are lacunae in the case of the prosecution the benefit must go to the accused. he next submitted that there was no evidence on record as to when the fir reached the magistrate and that none of the courts below considered the said aspect. he submitted that since there was violation of the provisions of section 162 of the crpc the accused appellant is liable to be acquitted. ms a subhashini learned counsel appearing for the respondent state however strenuously submitted that none of the aforesaid submissions could be accepted by this court as it is a foolproof case of conviction of the appellant section. 302 ipc. she submitted that the high court rightly interfered with the order of acquittal passed by the trial court after critically examining the evidence on record. it was submitted by her that the trial court examined the evidence in the present case in a very summary and cryptic manner and thereby arrived at a wrong conclusion that the accused persons were required to be acquitted. she has drawn our attention to the findings recorded by the high court while setting aside the order of acquittal observing that the evidence of eye witnesses namely pws. 1 2 8 and 18 is convincing and reliable but so far as the evidence of pw 4 is concerned the high court has made an observation that he is not a reliable witness. counsel for the respondent has therefore taken us through the evidence of pws. 1 2 8 and 18 and on the basis thereof submitted that their evidence clearly prove and establish the role of the appellant herein in stabbing the deceased with the knife which he had brought from the other room with the intention of killing the deceased and therefore it is a clear case of conviction. section. in the light of the aforesaid submissions of the counsel appearing for the parties we have given our in depth consideration to the facts of the present case. the starting point of the incident in question as indicated from the evidence on record is the hall where apparently a dispute started between the parties with regard to the electricity connection in the house. the deceased tried to put off the light of one particular room at which the appellant and other accused persons became annoyed and the appellant switched on the light which was again switched off by the deceased. at this the deceased became annoyed and the appellant removed the fuse of the electricity which act of his plunged the entire house into darkness. it is also clear and established that thereafter a lamp was brought by accused No 3 to the room besides another lamp which was already burning in the said room itself. but in any case there was an electricity light post in the front of the house which was giving enough light to the house. there is also evidence on record to show that even outsiders were watching the incident from the road which indicates that there was sufficient light for them to see what was happening in the house where the incident had taken place. there was indeed some scuffle between the parties during the course of which accused No 1 received simple injuries and the deceased died of the two stab injuries inflicted by the present appellant. the said fact is proved by the evidence of pws. 2 8 18 and the complainant herself pw 1. the deceased was taken to the hospital and while so taken he died. pw 21 who was at that time attached to konda police station as psi was informed at about 10 45 p m that the deceased while was being brought in the police jeep by a police constable jaisingrao rane and was being taken to the government medical college but before the deceased could be admitted he died. pw 21 was also informed by said by said psi k k desai of panaji police station that it was a case of assault and that the incident had taken place at verandah and that the said matter pertains to his police station and therefore he should take appropriate action. on receiving the said message he went to the place of occurrence along with psi k k desai and upon reaching the place of occurrence at 11 30 p m he found the entire place plunged in total darkness. therefore he proceeded to survey the place of occurrence with the help of torches. he in his deposition specifically stated that he found that the back door as well as the front door of the house were latched from inside and in front of the house there was a road where there was an electricity pole and there was a street tube light by which the house could be visible and even the lights of the vehicles were flashed at the house. he stated that although the house had electricity connection but was not having the electricity supply. he gave instructions to his subordinate and also to the people around that nobody should touch any article lying at the scene of occurrence. he stated that he made preliminary enquiry and brought yashoda and her two daughters to the police station and sent two other officers in search of accused nos 1 and 2 who were not found in the house. he also stated that he got the complaint registered at the police station which was lodged by pw 1 and that on the next day he again went to the scene of offence and seized the properties involved in the crime which were sealed. he also recovered the knife at the instance of accused sharmila which he seized. on 28 04 1988 that is after about 9 days of the incident accused nos 1 and 2 surrendered before the police and on their surrender they were taken into custody. it was found that accused No 1 was having injury on his back. and he was medically examined. on medical examination his injury was found to be simple. learned counsel appearing for the appellant was critical of the manner in which pw 21 initiated the investigation without recording any g d entry and without getting any fir recorded. he submitted that since the investigation in the instant case was started by the police without recording an fir such an fir is necessarily hit by the provisions of section 162 of the cr. p c he next submitted that no evidence having been led by the prosecution about the time when the fir reached the magistrate therefore there is also violation of the provisions of section 157 of the cr. the issue with regard to the initiation of the investigation without recording the fir was succinctly addressed by this court in the case of state of u p v bhagwant kishore joshi 1964 3 scr 71 1963 indlaw sc 268 observed as follows 17. what is investigation is not defined in the code of criminal procedure but in h n rishbud and inder singh v state of delhi 1954 indlaw sc 14 this court has described the procedure for investigation as follows thus under the code investigation consists generally of the following steps 1 proceeding to the spot 2 ascertainment of the facts and circumstances of the case 3 discovery and arrest of the suspected offender 4 collection of evidence relating to the commission of the offence which may consist of a the examination of various persons including the accused and the reduction of their statements into writing if the officer thinks fit b the search of places of seizure of things considered necessary for the investigation and to be produced at the trial and 5 formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet section this court however has not said that if a police officer takes merely one or two of the steps indicated by it what he has done must necessarily be regarded as investigation. investigation in substance means collection of evidence relating to the commission of the offence. the investigating officer is for this purpose entitled to question persons who in this opinion are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned by him to writing. he is also entitled to search the place of the offence and to search other places with the object of seizing articles connected with the offence. no doubt for this purpose he has to proceed to the spot where the offence was committed and do various other things. but the main object of investigation being to bring home the offence to the offender the essential part of the duties of an investigating officer in this connection is apart from arresting the offender to collect all material necessary for establishing the accusation against the offender. merely making some preliminary enquire upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so can not be regarded as investigation. in the absence of any prohibition in the code express or implied i am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it. no doubt section 5 a of the prevention of corruption act was enacted for preventing harassment to a government servant and with this object in view investigation except with the previous permission of a magistrate is not permitted to be made by an officer below the rank of deputy superintendent of police. where however a police officer makes some preliminary enquiries does not arrest or even question an accused or question any witnesses but merely makes a few discreet enquiries or looks at some documents without making any notes it is difficult to visualise how any possible harassment or even embarrassment would result therefrom to the suspect or the accused person. if no harassment to the accused results from the action of a police officer how can it be said to defeat the purpose underlying section 5 a looking at the matter this way i hold that what mathur did was something very much short of investigation and therefore the provisions of section 5 a were not violated. since no irregularity was committed by him there is no occasion to invoke the aid of the curative provisions of the code. emphasis underlined. in the instant case it is quite clear from the evidence on record that pw 1 received the information about the death of the deceased from psi of panaji police station without any detail as to how the incident had happened and who had caused the incident. it was a very cryptic information received by him regarding the death of a person residing within the jurisdiction of his police station pursuant to an incident taking place on 10 04 1988 between 8 30 p m to 8 45 p m and therefore it appears that there was not enough information available to him either to get a g d entry recorded or to get an fir lodged. in order to verify the information received pw 21 went to the place of occurrence and found the entire house in total darkness. he went around the house and saw blood marks on the walls of the verandah and also in the courtyard and came to learn about the incident by using torch light. when he reached at the place of occurrence even the complainant party was not available there. but at a later stage they came there. therefore he brought them along with the residents of the house who were found to be there namely accused No 3 and the two juvenile offenders namely sarita and sharmila who were all ladies. after reaching the police station and at the request of pw 1 the fir was recorded at 3 00 a m in the morning. he received the information about the incident on telephone at about 10 45 p m and reached the place of occurrence at about 11 30 p m and he must have been there for quite some time and thereafter returned to the police station which must have taken another about 1 30 to 2 hours. therefore recording of the fir at about 3 00 a m in the morning was justified and properly explained and it can not be said that there was any delay in recording the fir. besides the fact of his going to the place of occurrence would not amount to making an investigation. there is no evidence to show that at that point of time pw 21 seized any articles or interrogated any witnesses or took any other action in initiating or in furtherance of investigation. the ratio of the decision in bhagwant kishore joshi 1963 indlaw sc 268 supra is applicable to the facts of the present case as the police officer merely visited the spot and place of occurrence and made some survey which can not be regarded as investigation. in animireddy venkata ramana and others v public prosecutor high court of andhra pradesh 2008 5 scc 368 2008 indlaw sc 354 this court while considering a similar case observed as follows 10. certain basic facts are not denied or disputed. the deceased died in the bus at about 10 30 p m on 23 6 1998 while travelling to his village home from tuni. pw 1 also sustained injuries in the said incident. immediately after the incident hearing cries of passengers the driver of the bus stopped the bus. not only the accused persons fled away all others also did including pws 3 and 4. they came back after a short while hearing the cries of pw 1. they acceded to his request to take the bus to his house. from the records it appears that the distance between the place where the accident took place and the village in question was not much. in any event the destination of the bus was the said village and they were bound to take the bus thereat. pw 1 informed about the incident to pw 2 another son of the deceased. the dead body of the deceased was brought down from the bus and taken to the house. the conductor of the bus sent an information to the depot manager of the state road transport corporation at tuni. the investigating officer was also informed. a report to that effect might have been noted in the general diary but the same could not have been treated to be an fir. when an information is received by an officer in charge of a police station he in terms of the provisions of the code was expected to reach the place of occurrence as early as possible. it was not necessary for him to take that step only on the basis of a first information report. an information received in regard to commission of a cognizable offence is not required to be preceded by a first information report. duty of the state to protect the life of an injured as also an endeavour on the part of the responsible police officer to reach the place of occurrence in a situation of this nature is his implicit duty and responsibility. if some incident had taken place in a bus the officers of road transport corporation also could not ignore the same. they reached the place of occurrence in another bus at about 1 a m the deceased and the injured were only then shifted to tuni hospital. the ratio of the aforesaid decision is squarely applicable to the facts of the present case. even assuming that pw 21 the investigating officer could have entered the aforesaid information received from psi of panaji police station in the general diary yet they said entry could not have been held or treated to be an fir. the information received by him was very cryptic and without any detail about the incident in question and therefore in any case there was no possibility of recording an fir at that stage. the place of occurrence was in total darkness and even the persons belonging to the complainant side were not available therefore bringing them to the police station where there was sufficient light and recording the complaint at 3 00 a m can not in any manner cast any doubt on the veracity of the prosecution case. in that view of the matter it can not be said that the fir was in any manner hit by the provisions of section 162 of crpc. so far contention that there was violation of section 157 of the crpc is concerned the same is also without any basis for the defence never cross examined pw 21 on the aforesaid issue. so long the defence is not able to establish from the records by cogent evidence that there was any delay in sending the fir to the magistrate it can not be held that there was any such delay. there is no evidence on record before us to hold either way for no such issue was raised either before the trial court or before the high court nor any evidence was led by the defence in respect of the said issue which is sought to be raised at this stage. from the evidence on record it does not appear to us that any suggestion was given to the said witness to the effect that the copy of the fir was not sent or that it was dispatched late which if given would have given an opportunity to the witness to afford some explanation or to show as to when the fir was sent to and received by the magistrate. in that view of the matter we do not agree with the counsel appearing for the appellant that delay in transmitting the fir to the magistrate stands proved in the present case. the next contention that we proceed to discuss now is about whether sufficient light was available at the place of occurrence for the eye witnesses to see the occurrence as stated by them in the evidence. we have pws. 1 2 8 and 18 as eye witnesses to the occurrence. these eye witnesses have stated that the incident had happened initially in the hall where there was some light for accused No 3 has brought a lamp to the hall and apart from that another lamp was also burning which was attached to the ceiling. blood was found by the police on the wall of the verandah and in the courtyard. it is also established from the evidence on record for it is clearly stated that the street light having tube light was giving sufficient light to the place of occurrence and that it was directed towards the house which was the place of occurrence. besides all the aforesaid eye witnesses were inmates of the house and they would know as to who had given the blows for they specifically stated that initially the appellant did not have the knife in his hand but when the deceased and others went to the balcony then he went inside the house and brought a knife with which he gave stab injuries to the deceased which became fatal and as a result of which the deceased died while he was being taken to the hospital. the aforesaid eye witnesses although are related witnesses were natural witnesses for they were the inmates of the house where the incident had taken place. the said eye witnesses are consistent about the principal act of the appellant in stabbing the deceased. the discrepancies which were sought to be pointed out are minor discrepancies without in any manner affecting the substratum of the prosecution case and therefore minor discrepancies in the evidence of the eye witnesses are immaterial. this court has observed as follows in the case of dinesh kumar v state of rajasthan 2008 8 scc 270 2008 indlaw sc 2034 11. it is to be noted that pws 7 and 13 were the injured witnesses and pw 10 was another eyewitness and was the informant. law is fairly well settled that even if acquittal is recorded in respect of the co accused on the ground that there were exaggerations and embellishments yet conviction can be recorded if the evidence is found cogent credible and truthful in respect of another accused. the mere fact that the witnesses were related to the deceased can not be a ground to discard their evidence. in law testimony of an injured witness is given importance. when the eyewitnesses are stated to be interested and inimically disposed towards the accused it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. the truth or otherwise of the evidence has to be weighed pragmatically. the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. but if after careful analysis and scrutiny of their evidence the version given by the witnesses appears to be clear cogent and credible there is no reason to discard the same. conviction can be made on the basis of such evidence. the aforesaid eye witnesses were cross examined at length but even after such lengthy cross examination these eye witnesses account could not be shaken. the postmortem report indicates that there were sixteen injuries as against the two as adduced in ocular evidence and therefore a submission was made by the counsel appearing for the appellant that the medical evidence adduced in the present case is not supporting the ocular evidence. however a perusal of record clearly shows that the doctor who conducted the postmortem pw 7 stated in his evidence that there were in total 16 injuries when external examination was done by him and the knife m o 11 could have caused the injuries No 1 2 3 and 4. he further stated that the death was caused due to hemorrhage and shock as a result of stab injury. he further stated that injury No 1 was sufficient to cause death in the ordinary course of nature. on being cross examined pw 7 categorically stated that death due to stab injury was in consequence of injury No 1 and all other injuries were superficial in nature. there is no doubt that four injuries are indicated in the postmortem report shown to have been received by the deceased but the fact that the deceased was given stab injuries by the appellant with the help of a knife brought by him from inside the house is clearly established from the ocular evidence. there is therefore one particular injury being injury No 1 caused because of stabbing and the rest being superficial in nature could be caused during scuffle. therefore the alleged discrepancy can not be said to be very vital as it has been held by this court in several decisions that ocular evidence can not be brushed aside only because to some extent it is not in consonance with the medical evidence. reference in this regard may be made to the decision of this court in state of u p v krishna gopal 1988 4 scc 302 1988 indlaw sc 76 anwar v state of haryana 1997 9 scc 766 1997 indlaw sc 2447 ravi kumar v state of punjab 2005 9 scc 315 2005 indlaw sc 170 munivel v state of t n 2006 9 scc 394 2006 indlaw sc 118. all the contentions raised by learned counsel appearing for the appellant were considered by us in the light of evidence on record. and we find that none of the aforesaid submissions has any basis. there is cogent and reliable evidence on record to prove and establish that the accused has committed the act of stabbing as a result of which the deceased had died. before dwelling further into the factual matrix of the case on the basis of which the high court convicted the appellant section 302 ipc it would be useful to briefly recapitulate the law on the point. section 299 and section 300 ipc deals with the definition of culpable homicide and murder respectively. section 299 defines culpable homicide as the act of causing death i with the intention of causing death or ii with the intention of causing such bodily injury as is likely to cause death or iii with the knowledge that such act is likely to cause death. the bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. both the expression intent and knowledge postulate the existence of a positive mental attitude which is of different degrees. the mental element in culpable homicide i e mental attitude towards the consequences of conduct is one of intention and knowledge. if that is caused in any of the aforesaid three circumstances the offence of culpable homicide is said to have been committed. section 300 ipc however deals with murder although there is no clear definition of murder provided in section 300 ipc. it has been repeatedly held by this court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. section 300 ipc further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable section when and if there is intent and knowledge then the same would be a case of section 304. i and if it is only a case of knowledge and not the intention to cause murder and bodily injury then the same would be a case of section 304 part ii. the aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this court. in the case of state of a p v rayavarapu punnayya 1976 4 scc 382 1976 indlaw sc 192 this court observed as follows at page 386 12. in the scheme of the penal code culpable homicides is genus and murder its specie. all murder is culpable homicide but not vice versa. speaking generally culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder. for the purpose of fixing punishment proportionate to the gravity of this generic offence the code practically recognises three degrees of culpable homicide. the first is what may be called culpable homicide of the first degree. this is the greatest form of culpable homicide which is defined in section 300 as murder. the second may be termed as culpable homicide of the second degree. this is punishable under the first part of section 304. then there is culpable homicide of the third degree. this is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. culpable homicide of this degree is punishable under the second part of section 304. placing strong reliance on the aforesaid decision this court in the case of abdul waheed khan v state of a p 2002 7 scc 175 2002 indlaw sc 1777 observed as follows at page 184 13. b of section 299 corresponds with cls 2 and 3 of section 300. the distinguishing feature of the mens rea requisite u cl 2 is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. it is noteworthy that the intention to cause death is not an essential requirement of cl. only the intention of causing the bodily injury coupled with the offender 's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. this aspect of cl 2 is borne out by illustration b appended to section 300. b of section 299 does not postulate any such knowledge on the part of the offender. instances of cases falling u cl 2 of section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver or spleen or the failure of the heart as the case may be. if the assailant had no such knowledge about the disease or special frailty of the victim nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death the offence will not be murder even if the injury which caused the death was intentionally given. in cl 3 of section 300 instead of the words likely to cause death occurring in the corresponding cl. b of section 299 the words sufficient in the ordinary course of nature have been used. obviously the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. the distinction is fine but real and if overlooked may result in miscarriage of justice. the difference between cl. b of section 299 and cl. 3 of section 300 is one of degree of probability of death resulting from the intended bodily injury. to put it more broadly it is the degree of probability of death which determines whether a culpable homicide is of the gravest medium or the lowest degree. the word likely in cl. b of section 299 conveys the sense of probable as distinguished from a mere possibility. the words bodily injury sufficient in the ordinary course of nature to cause death mean that death will be the most probable result of the injury having regard to the ordinary course of nature. for cases to fall within clause 3 it is not necessary that the offender intended to cause death so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. rajwant singh v state of kerala is an apt illustration of this point. in virsa singh v state of punjab4. 1958 indlaw sc 82 vivian bose j speaking for the court explained the meaning and scope of cl. it was observed that the prosecution must prove the following facts before it can bring a case under section 300 thirdly. first it must establish quite objectively that a bodily injury is present secondly the nature of the injury must be proved. these are purely objective investigations. thirdly it must be proved that there was an intention to inflict that particular injury that is to say that it was not accidental or unintentional or that some other kind of injury was intended. once these three elements are proved to be present the enquiry proceeds further and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. this part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. the ingredients of clause thirdly of section 300 ipc were brought out by the illustrious judge in his terse language as follows 12. to put it shortly the prosecution must prove the following facts before it can bring a case under section 300 thirdly first it must establish quite objectively that a bodily injury is present secondly the nature of the injury must be proved these are purely objective investigations. thirdly it must be proved that there was an intention to inflict that particular bodily injury that is to say that it was not accidental or unintentional or that some other kind of injury was intended. once these three elements are proved to be present the enquiry proceeds further and fourthly it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. the learned judge explained the third ingredient in the following words the question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. if he can show that he did not or if the totality of the circumstances justify such an inference then of course the intent that the section requires is not proved. but if there is nothing beyond the injury and the fact that the appellant inflicted it the only possible inference is that he intended to inflict it. whether he knew of its seriousness or intended serious consequences is neither here nor there. the question so far as the intention is concerned is not whether he intended to kill or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. these observations of vivian bose j have become locus classicus. the test laid down by virsa singh case4 for the applicability of clause thirdly is now ingrained in our legal system and has become part of the rule of law. under clause thirdly of section 300 ipc culpable homicide is murder if both the following conditions are satisfied i e a that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury and b that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death viz that the injury found to be present was the injury that was intended to be inflicted. thus according to the rule laid down in virsa singh case4 even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death the offence would be murder. illustration c appended to section 300 clearly brings out this point. c of section 299 and cl. 4 of section 300 both require knowledge of the probability of the act causing death. it is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. it will be sufficient to say that cl. 4 of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act approximates to a practical certainty. such knowledge on the part of the offender must be of the highest degree of probability the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. the above are only broad guidelines and not cast iron imperatives. in most cases their observance will facilitate the task of the court. but sometimes the facts are so intertwined and the second and the third stages so telescoped into each that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. the aforesaid principles have been consistently followed by this court in several decisions. reference in this regard may be made to the decision of this court in ruli ram v state of haryana 2002 7 scc 691 2002 indlaw sc 1927 augustine saldanha v state of karnataka 2003 10 scc 472 2003 indlaw sc 674 state of u p v virendra prasad 2004 9 scc 37 2004 indlaw sc 60 chacko v state of kerala 2004 12 scc 269 2004 indlaw sc 20 section n bhadolkar v state of maharasthra 2005 9 scc 71 2004 indlaw sc 268 and jagriti devi v state of h p jt 2009 8 sc 648. 2009 indlaw sc 859. that being the well settled legal position when we test the factual background of the present case on the principles laid down by this court in the aforesaid decisions we are unable to agree with the views taken by the high court. as already noted it is quite clear from the record that there was an altercation preceding the incident. the place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. initially the accused appellant also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. in his cross examination has categorically stated that death due to stab injury was in consequence of injury No 1 and all other injuries were superficial in nature. so it was only injury No 1 which was fatal in nature. factually therefore there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore it can not be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness. records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. there is therefore provocation and the incident happened at the spur of the moment. that being the factual position we are of the considered view that the present case can not be said to be a case section but it is a case falling under section 304 part ii ipc. it is trite law that section 304 part ii comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. accordingly we convict the appellant under section 304 part ii of ipc and sentence him to undergo imprisonment for a period of 7 years. his bail bonds shall stand cancelled and the appellant shall surrender immediately to serve out the remaining period of sentence. if however the appellant does not surrender by himself the state shall take necessary steps to rearrest him to undergo the remaining part of sentence. the appeal stands disposed of in terms of aforesaid order. appeal disposed of.

FACTS on 19.04.1988 satish narayan sawant, the appellant (accused no. 1) along with two other accused persons and also with two delinquent children allegedly formed an unlawful assembly and that in furtherance of the said common object stabbed one rauji dulba sawant, the deceased and also assaulted baby dulba sawant (pw-1), ashok dulba sawant (pw-2), kunda rauji sawant (pw-8) and laxmi dulba sawant (pw-18) who are the sister, brother, wife and mother respectively of the deceased. it is also the case of the prosecution that as a result of the aforesaid stab injuries given to the deceased, he expired on the same day during the survey made at the place of occurrence, pw-21 noticed some blood-stains in the front courtyard of the house and a pipe of length of about 1 foot or slightly less lying in the courtyard having blood-stains. thereafter, pw-21, along with p.i. d'sa gave a call to the inmates of the house to open the door and on hearing the call, one lady opened the door. on the basis of complaint made by pw-1, an fir was registered and the accused came to be arrested. on completion of the investigation, the police submitted the charge- sheet against the accused persons namely the present appellant (accused no. 1), accused nos. 2 and 3 and the two juvenile offenders, namely sarita and sharmila. the trial court framed charges against all the accused persons for the offence under sections 302, 323, 143, 147 and 149 of the ipc. the accused pleaded not guilty and claimed to be tried. since there were two juvenile offenders there cases were segregated and the trial against accused nos. 1, 2 and 3 was conducted during the course of which a number of eye-witnesses were examined on behalf of the prosecution. after completion of the arguments the trial court reserved the verdict. the trial court passed an order on 04.08.1998 acquitting all the accused persons from the offences under sections 302, 323, 143, 147 and 149 of ipc. being aggrieved by the aforesaid judgment and order of acquittal the state filed an appeal in the high court against accused nos. 1 to 3. ARGUMENT mr. r. sundaravardhan, learned senior counsel appearing for the appellant very forcefully submitted that the high court was not justified in setting aside the order of acquittal passed in respect of the present appellant. he submitted that although the incident in question had taken place at about 8.45 p.m. the same came to be reported to the police at 3.00 a.m. he also submitted that the police officer (pw-21) who received the information about the incident started investigation without recording either any general diary (for short g.d.) entry or the fir and, therefore, the fir which has been proved in the trial court is hit by the provisions of s. 162 of the criminal procedure code (for short "the crpc. he also submitted that the high court has not given any reason for setting aside the appeal against acquittal which was passed after appreciating the entire evidence on record. he further submitted that there was not only shifting of time of the alleged occurrence but also shifting of the place of occurrence from the hall to the outside verandah and courtyard to suit the convenience of the prosecution case, ms. a. subhashini, learned counsel appearing for the respondent- state, however, strenuously submitted that none of the aforesaid submissions could be accepted by this court as it is a foolproof case of conviction of the appellant she submitted that the high court rightly interfered with the order of acquittal passed by the trial court after critically examining the evidence on record. it was submitted by her that the trial court examined the evidence in the present case in a very summary and cryptic manner and thereby arrived at a wrong conclusion that the accused persons were required to be acquitted. ANALYSIS the starting point of the incident in question as indicated from the evidence on record is the hall where apparently a dispute started between the parties with regard to the electricity connection in the house. the deceased tried to put off the light of one particular room at which the appellant and other accused persons became annoyed and the appellant switched on the light which was again switched off by the deceased. at this, the deceased became annoyed and the appellant removed the fuse of the electricity which act of his plunged the entire house into darkness. it is also clear and established that thereafter a lamp was brought by accused no. 3 to the room besides another lamp which was already burning in the said room itself. but, in any case, there was an electricity light post in the front of the house which was giving enough light to the house. there is also evidence on record to show that even outsiders were watching the incident from the road which indicates that there was sufficient light for them to see what was happening in the house where the incident had taken place. there was indeed some scuffle between the parties during the course of which accused no. 1 received simple injuries and the deceased died of the two stab injuries inflicted by the present appellant. the issue with regard to the initiation of the investigation without recording the fir was succinctly addressed by this court in the case of state of u.p. v. bhagwant kishore joshi, (1964) 3 scr 71 1963 indlaw sc 268, observed as follows: "17. what is investigation is not defined in the code of criminal procedure; but in h.n. rishbud and inder singh v. state of delhi 1954 indlaw sc 14 this court has described, the procedure, for investigation as follows: "thus, under the code investigation consists generally of the following steps, (1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet" in the instant case, it is quite clear from the evidence on record that pw-1 received the information about the death of the deceased from psi of panaji police station without any detail as to how the incident had happened and who had caused the incident. it was a very cryptic information received by him regarding the death of a person residing within the jurisdiction of his police station pursuant to an incident taking place on 10.04.1988 between 8.30 p.m. to 8.45 p.m. and, therefore, it appears that there was not enough information available to him either to get a g.d. entry recorded or to get an fir lodged. in order to verify the information received, pw-21 went to the place of occurrence and found the entire house in total darkness. the said eye-witnesses are consistent about the principal act of the appellant in stabbing the deceased. the discrepancies which were sought to be pointed out are minor discrepancies without in any manner affecting the substratum of the prosecution case and therefore, minor discrepancies in the evidence of the eye-witnesses are immaterial. the postmortem report indicates that there were sixteen injuries as against the two as adduced in ocular evidence and, therefore, a submission was made by the counsel appearing for the appellant that the medical evidence adduced in the present case is not supporting the ocular evidence. the place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. there is, therefore, provocation and the incident happened at the spur of the moment. that being the factual position, we are of the considered view that the present case cannot be said to be a case u/s. but it is a case falling under s. 304 part ii ipc. it is trite law that s. 304 part ii comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. STATUTE s. 299 and s. 300 ipc deals with the definition of culpable homicide and murder respectively. s. 299 defines culpable homicide as the act of causing death; (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such act is likely to cause death. the bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. the mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. if that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. . 300 ipc, however, deals with murder although there is no clear definition of murder provided in s. 300 ipc. it has been repeatedly held by this court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. s. 300 ipc further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable u/s. when and if there is intent and knowledge then the same would be a case of s. 304. part. i and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of s. 304 part ii. the aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this court.

FACTS on 19.04.1988,satish narayan sawant, the appellant (accused no. 1) along with two other accused persons and also with two delinquent children allegedly formed an unlawful assembly and that in furtherance of the said common object stabbed one rauji dulba sawant, the deceased and also assaulted baby dulba sawant (pw-1), ashok dulba sawant (pw-2), kunda rauji sawant (pw-8) and laxmi dulba sawant (pw-18) who are the sister, brother, wife and mother respectively of the deceased. it is also the case of the prosecution that as a result of the aforesaid stab injuries given to the deceased, he expired on the same day i.e. on 19.04.1988. p.s. joaquim dias (pw-21) who was attached to the ponda police station as p.s.i. received a phone call at about 10.45 p.m. from p.s.i. k.k. desai of the panaji police station that a person named rauji dulba sawant had been brought in police jeep by police constable jaisingrao rane and that while he was being taken to the goa medical college, he expired. he was informed that the deceased had died as a result of stab injuries received and, therefore, he was to take necessary steps. on receipt of the aforesaid message, pw-21 along with asi tabit mamlekar went to the scene of offence. they reached the scene of offence at about 11.30 p.m. but found the entire place plunged into darkness and with the help of torch light, pw-21 surveyed the scene of offence. pw-21 noticed some blood-stains in the front courtyard of the house and a pipe of length of about 1 foot or slightly less lying in the courtyard having blood-stains. two juvenile girls named, sarita and sharmila, who are the sisters of the appellant were found in the house. in the meantime, pw-1, pw-2 and pw-8 came to the house from whom pw-21 made certain inquiries and brought them along with accused no. 3 and her two juvenile girls to the police station. not finding the appellant and accused no.2 in the house, dy. s.p. shri raikar and p.i. shri alan o'sa were sent in their search. after reaching the police station, a complaint, which is marked as exhibit pw 1/a was lodged by pw-1, in which it was alleged that pw-1, pw-8, pw-18, the deceased rauji and his brother narayan were residing in one house in banastari and they used to share a common kitchen between them. it was further alleged by pw-1 that two or three days before the ganesh festival, deceased rauji had informed narayan that he would install statue of lord ganesh in the house and accordingly, he had purchased the same. religious ceremony was performed by installing the statue of lord ganesh in the house and while the said religious ceremony was being performed, accused no. 2 started uttering insults while standing in the kitchen. accused no. 3 told the appellant not to do anything in the ceremony and insulted the family members of rauji. pw-1 also alleged that on 19.04.1988 the deceased rauji returned from his duty at about 6.30 p.m. and thereafter went to purchase some articles. on his return, he went to take bath and after having bath, he went and switched off the light of the room. as soon as the deceased switched off the light, the appellant came from the room and started abusing rauji. there was a heated exchange of words between rauji and the appellant switched on the light, which was again switched off by rauji, the deceased. thereupon, the appellant went and removed the fuse of the said light. accused no. 3 had then lit a kerosene lamp and brought the same in the hall. there was already an oil lamp burning which was attached to the ceiling by a brass chain. the appellant and the two other alleged accused namely, accused nos. 2 and 3 and the two juvenile offenders gathered in the hall to assault rauji, the deceased, pw-1 and pw-8. according to pw-1, in order to avoid the assault by all of them, they went to "bulcao" (balcony). when they went there, the appellant went to his mother's room and brought a knife with which he stabbed rauji. at that time all the accused persons were in the balcony. it was also alleged that after the deceased rauji fell down on the ground, accused no. 3 kicked him. at that time, the appellant who was holding the knife in his hand, handed over the same to accused no. 3 by which she assaulted pw-8 but pw-8 caught the knife in her hand which caused injury to her right palm. thereafter, according to pw-1, accused no. 3 handed back the knife to the appellant and accused no. 2 brought the oil lamp which was hung in the room and hit the oil lamp on the head of rauji, the deceased. it was also alleged that when pw-8 tried to intervene, the other three accused started assaulting her with fists and slaps. at that time, pw-2 came there and questioned the accused persons as to what they were doing, whereupon, the appellant and accused no. 2 started assaulting pw-2 also. then, accused no. 3 told the appellant and accused no. 2 to finish off rauji first. pw-8, pw-18 and pw-1 then lifted rauji and brought him in the courtyard. the residents of the locality had gathered in the courtyard and told the accused persons not to assault rauji. the juvenile offender, sarita went inside the house and brought out one iron pipe which she handed over to the appellant who then hit the said pipe on the right leg of pw-1 and also gave a blow with the said pipe on rauji's right hand. it was also alleged that the other juvenile offender, sharmila brought a cement block shaped like an elephant trunk, which she handed over to accused no. 3 with which accused no. 3 started assaulting rauji. pw-1, however, intervened and removed the said piece of cement block from the hand of accused no. 3 but, accused no. 3 then picked up one stone and tried to throw it on rauji by saying that she was going to kill him with that stone. however, pw-1 again intervened and removed the said stone from the hand of accused no.3. pw- 18 rushed to the rescue of deceased rauji. the accused then started assaulting her and pw-8 with slaps. in the meantime, police jeep arrived at the scene and on seeing the police jeep, all the accused ran away from the courtyard and went inside. pw - 1 and others asked the police to take rauji to the hospital whereupon the police took him to the hospital in the police jeep along with pw-1, pw - 2 and pw -8. on the basis of complaint made by pw-1, an fir was registered and the accused came to be arrested. on completion of the investigation, the police submitted the charge- sheet against the accused persons namely the present appellant (accused no. 1), accused nos. 2 and 3 and the two juvenile offenders, namely sarita and sharmila. the trial court framed charges against all the accused persons for the offence under sections 302, 323, 143, 147 and 149 of the ipc. the accused pleaded not guilty and claimed to be tried. ARGUMENT the fir which has been proved in the trial court is hit by the provisions of s. 162 of the criminal procedure code. he also submitted that the high court has not given any reason for setting aside the appeal against acquittal which was passed after appreciating the entire evidence on record. he further submitted that there was not only shifting of time of the alleged occurrence but also shifting of the place of occurrence from the hall to the outside verandah and courtyard to suit the convenience of the prosecution case. he has drawn our attention towards the entire evidence on record including the cross-examination part and with the help of the same he submitted that the entire alleged incident in question had taken place when there was complete darkness at the scene of occurrence. a scuffle started between the nephew and the uncle in which the accused persons also received injuries and, therefore, the right of private defence of the appellant was available and in that view of the matter, the order of conviction and sentence is liable to be set aside. ANALYSIS the starting point of the incident in question as indicated from the evidence on record is the hall where apparently a dispute started between the parties with regard to the electricity connection in the house. the deceased tried to put off the light of one particular room at which the appellant and other accused persons became annoyed and the appellant switched on the light which was again switched off by the deceased. at this, the deceased became annoyed and the appellant removed the fuse of the electricity which act of his plunged the entire house into darkness. it is also clear and established that thereafter a lamp was brought by accused no. 3 to the room besides another lamp which was already burning in the said room itself. but, in any case, there was an electricity light post in the front of the house which was giving enough light to the house. there is also evidence on record to show that even outsiders were watching the incident from the road which indicates that there was sufficient light for them to see what was happening in the house where the incident had taken place. there was indeed some scuffle between the parties during the course of which accused no. 1 received simple injuries and the deceased died of the two stab injuries inflicted by the present appellant. he, in his deposition specifically stated that he found that the back door as well as the front door of the house were latched from inside and in front of the house there was a road where there was an electricity pole and there was a street tube light by which the house could be visible and even the lights of the vehicles were flashed at the house. he stated that although the house had electricity connection, but was not having the electricity supply. he gave instructions to his subordinate and also to the people around that nobody should touch any article lying at the scene of occurrence. he stated that he made preliminary enquiry and brought yashoda and her two daughters to the police station and sent two other officers in search of accused nos. 1 and 2 who were not found in the house. he also stated that he got the complaint registered at the police station which was lodged by pw-1 and that on the next day he again went to the scene of offence and seized the properties involved in the crime which were sealed. he also recovered the knife at the instance of accused sharmila which he seized. on 28.04.1988, that is, after about 9 days of the incident, accused nos. 1 and 2 surrendered before the police and on their surrender they were taken into custody. it was found that accused no. 1 was having injury on his back and he was medically examined. on medical examination his injury was found to be simple. even assuming that pw-21, the investigating officer could have entered the aforesaid information received from psi of panaji police station in the general diary, yet they said entry could not have been held or treated to be an fir. the information received by him was very cryptic and without any detail about the incident in question and, therefore, in any case, there was no possibility of recording an fir at that stage. the place of occurrence was in total darkness and even the persons belonging to the complainant side were not available, therefore, bringing them to the police station where there was sufficient light and recording the complaint at 3.00 a.m. cannot, in any manner, cast any doubt on the veracity of the prosecution case. in that view of the matter it cannot be said that the fir was in any manner hit by the provisions of s. 162 of crpc. besides, all the aforesaid eye-witnesses were inmates of the house and they would know as to who had given the blows for they specifically stated that initially the appellant did not have the knife in his hand but when the deceased and others went to the balcony then he went inside the house and brought a knife with which he gave stab injuries to the deceased which became fatal and as a result of which the deceased died while he was being taken to the hospital. the aforesaid eye-witnesses, although, are related witnesses, were natural witnesses for they were the inmates of the house where the incident had taken place. the said eye-witnesses are consistent about the principal act of the appellant in stabbing the deceased. the discrepancies which were sought to be pointed out are minor discrepancies without in any manner affecting the substratum of the prosecution case and therefore, minor discrepancies in the evidence of the eye-witnesses are immaterial. all the contentions raised by learned counsel appearing for the appellant were considered by us in the light of evidence on record and we find that none of the aforesaid submissions has any basis. there is cogent and reliable evidence on record to prove and establish that the accused has committed the act of stabbing as a result of which the deceased had died. before dwelling further into the factual matrix of the case on the basis of which the high court convicted the appellant u/s. 302 ipc; it would be useful to briefly recapitulate the law on the point. that being the well settled legal position, when we test the factual background of the present case on the principles laid down by this court in the aforesaid decisions, we are unable to agree with the views taken by the high court. as already noted, it is quite clear from the record that there was an altercation preceding the incident. the place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. initially the accused-appellant also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. pw-7 in his cross examination has categorically stated that death due to stab injury was in consequence of injury no. 1 and all other injuries were superficial in nature. so, it was only injury no. 1 which was fatal in nature. factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness. records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. there is, therefore, provocation and the incident happened at the spur of the moment. that being the factual position, we are of the considered view that the present case cannot be said to be a case u/s. 302 ipc but it is a case falling under s. 304 part ii ipc. it is trite law that s. 304 part ii comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. in the case of abdul waheed khan v. state of a.p., (2002) 7 scc 175 2002 indlaw sc 1777, observed as follows at page 184: cl. (b) of s. 299 corresponds with cls. (2) and (3) of s. 300. the distinguishing feature of the mens rea requisite u/cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. it is noteworthy that the "intention to cause death" is not an essential requirement of cl. (2). only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. this aspect of cl. (2) is borne out by illustration (b) appended to s. 300. 14. cl. (b) of s. 299 does not postulate any such knowledge on the part of the offender. STATUTE s. 299 and s. 300 ipc deals with the definition of culpable homicide and murder respectively. s. 299 ipc defines culpable homicide as the act of causing death; (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such act is likely to cause death. s. 300 ipc, however, deals with murder although there is no clear definition of murder provided in s. 300 ipc. it has been repeatedly held by this court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. s. 300 ipc further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable u/s. 304.

yakshagana is a form of ballet dance. it has its own heritage. indisputably dr kota shivarama karanth for shortdr. karantha jnanapeeth awardee who was a novelist play writer essayist encyclopediationist cultural anthropologist artist writer of science environmentalist. he developed a new form of yakshagana. he was a director of the appellant institute. on or about 18 6 1994he executed a will in favour of the respondent. karanth expired on 9 12 1997 yakshagana ballet dance as developed by dr karanth was performed in new delhi on or about 18 9 2001 respondent filed a suit for declaration injunction and damages alleging violation of the copyright in respect of the said dance vested in her in terms of the said will stating that dr karanth developed a new distinctive dance drama troop or theatrical system which was named by him as yaksha ranga which in his own words mean creative extension of traditional yakshagana and thus the appellants infringed the copyright thereof by performing the same at new delhi without obtaining her prior permission. it was stated that dr karanth had composed seven verses or prasangas for staging yaksharanga ballet apart from bringing in changes in the traditional form thereof on its relevant aspects namely raga tala scenic arrangement costumes etc. these prasangas are i bhishma vijaya ii nala damayanthi iii kanakangi or kanakangi kalyana iv abhimanyu or abhimanyu vada v chitrangadha or babruvahana kalaga vi panchavati and vii. ganga charitha. plaintiff respondent admittedly claimed copyright in respect of literary and artistic works in her favour in terms of clauses 11 and 12 of the said will dated 18 6 1994which read as under 11 since i left the house suhasa i have been living in a specially built house manasa of smt. malini mallya who has built it with borrowed money at her cost. she had joined my service as copyist and later she secured an employment in life insurance corporation of india. ever since 1974 till now in my old age she has been serving me with exemplary devotion and sincerity. and in this occasion i must also acknowledge with gratitude that she diligently cared and nursed my wife leela karanth during her prolonged illness till her last day. and she has cared and looked after me also during my illness which at times had been quite serious enfeebling me for long period. in recognition of her devotion and sincere affection towards me in 1986 i have dedicated one of my novels namelyantida aparanji to her. i have also placed on record her invaluable services to me in my memoirshunchu mansina hathu mukhagalu 1991 edition. in my opinion very long enduring and a signal service she has done to me and to my literary works is in writing a bibliography of all my books a highly meritorious and scholarly work involving so much of pains taking research that it has been acclaimed and rated as the first of its kind in kannada and highly appreciated by critics and scholars. apart from this she has collected and edited all my stray writings from 1924 onwards up to date in eight sumptuous volumes which are being published by mangalore university. this work also has brought her deserving fame and appreciation of scholars. such painstaking service in this direction has brought to light several of my hitherto untraced forgotten and unknown writings and thereby giving them extended or renewed lease of life. for all these services i hereby declare that after my death copyrights in respect of all my literary works shall vest with smt. malini mallya and she alone shall be entitled to receive royalties of all my books and she shall be entitled to print publish and republish and market the same. whatever she may earn thereby shall be her exclusive income and property. no one else shall have any right or claims for the same 12 from time to time i have distributed among my children all gold and silver jewels and ornaments and other valuables which were gifted to me by my friends and admirers. and i have distributed all copper and bronze vessels and utensils among my children while leaving my former home suhasa keeping only bare essential and necessary things and articles. whatever movable properties books fittings furniture utensils etc belonging to me into this house manasa and my car and cash money in hand after my death shall go to smt. malini malya only. no one else shall have any claim or right over the same. any outstanding due to me and bank deposits and whatever assets or properties not mentioned above that is residuary after my death shall belong to smt. malini mallya alone. plaintiff respondent inter alia prayed for passing a judgment and decree against the defendants appellants granting the following reliefs 1 a declaration that the plaintiff is the exclusive copyright holder in respect of yaksharanga ballets namely bhishma vijaya kanakangi nala damayanthi panchavati gaya charitha chitrangadha abhimanyu vadha and for consequential permanent injunction restraining the defendants their agents employees etc from staging or performing any of the above said 7 ballets or prasangas or any parts thereof. 1000 00 2 directing the defendants to pay to the plaintiff damages of rs 15000 towards infringement of her copyright on account of stating or performing abhimanyu vadha on 18 9 2001 at new delhi. 15000 00 3 directing the defendants to pay to the plaintiff interest on rs 15000 at 15 p a from 18 9 2001 till now which is 95 00. 4 directing the defendants to pay future interest on rs 15000 at 15 p a till payment of the entire amount. appellants in their written statement however denied and disputed any copyright of the said dance in dr karanth alleging that whatever work he had done was in the capacity of a director of the kendra with the assistance finance and staff provided by the organization of mahatma gandhi memorial college trust in respect whereof a committee was formed under him by the board of trustees. it was furthermore contended that dr karanth was appointed as the president of the executive committee of yakshagana kendra for a period of three years by the appellant and while holding the said post only he expired. by reason of a judgment and decree dated 14 11 2003the district judge udupi decreed the said suit declaring the plaintiff respondent as a person having the exclusive copyright in respect of seven prasangas and that she had acquired the same by reason of a will as a residuary legatee and the defendants appellants or their employees or agents were restrained from performing the said seven ballets or prasangas or any parts thereof in any manner as evolved distinctively by dr karanth. appellants aggrieved thereby and dissatisfied therewith preferred an appeal before the karnataka high court which was marked as r f a no 271 of 2004. by reason of the impugned judgment and order dated 5 12 2007the said appeal has been dismissed. appellants are thus before us. rajiv dhavan learned senior counsel appearing on behalf of appellants in his usual fairness conceded. i the copyright in the literary work has been assigned by reason of the said will in favour of the respondent in terms of clause 12 of the will. ii dr karanth has made substantial changes in the original traditional form of the yakshagana dance. additions made in the form of the said dance including the prasangas fell within the purview of originality in respect whereof copyright could be claimed. it was however urged. i keeping in view of the findings of the learned trial judge it ought to have been held that no cause of action arose against the appellants in this case as the institution had performed the said dance at new delhi in the memory of dr karanth without charging any fees. the form of copyright as regards dramatic work as has been held by the high court stating the same to be a part of the literary work is not correct as they connote two different things. the form of injunction granted in favour of the plaintiff respondent is not in terms of the provisions of the copyright act1957 as the appellant as an institution or otherwise is entitled to use the same in terms of clauses ai and l of sub section 1 of section 52 thereof. mr g v chandrashekhar learned counsel appearing on behalf of the respondent on the other hand would support the impugned judgment. the copyright act1957 for shortthe act was enacted to amend and consolidate the law relating to copyright. section 2 is the interpretation section. section 2c defines artistic work to mean i a painting a sculpture a drawing including a diagram map chart or planan engraving or a photograph whether or not any such work possesses artistic quality. ii a work of architecture and iii any other work of artistic craftsmanship. the word author is defined in section 2d to meani in relation to a literary or dramatic work the author of the work ii in relation to a musical work the composer iii in relation to an artistic work other than a photograph the artist iv in relation to a photograph the person taking the photograph v in relation to a cinematograph film or sound recording the producer and vi in relation to any literary dramatic musical or artistic work which is computer generated the person who causes the work to be created. the term communication to the public as defined in section 2ff reads as under ff communication to the public means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the pubic actually sees hears or otherwise enjoys the work so made available. explanation. for the purposes of this clause communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public section 2 ffa defines the word composerin relation to a musical work to mean the person who composes the music regardless of whether he records it in any form of graphical notation. section 2h defines dramatic work to include any piece of recitation choreographic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. section 2o defines literary work to include computer programmes tables and compilations including computer databases. section 2qq defines performer to include an actor singer musician dancer acrobat juggler conjurer snake charmer a person delivering a lecture or any other person who makes a performance. section 2y defines work to mean any of the following works namely i a literary dramatic musical or artistic work ii a cinematograph film iii a sound recording. section 13 which occurs in chapter iii of the act provides that subject to the provisions thereof and the other provisions of the said act copyright shall subsists throughout india in the following classes of works that is to say a original literary dramatic musical and artistic works b cinematograph films and c sound recording. section 17 of the act deals with first owner of copyrightin terms whereof subject to the provisions of the act the author of a work shall be the owner of the copyright therein. proviso d appended thereto states that in the case of a government work government shall in the absence of any agreement to the contrary be the first owner of the copyright therein. sections 2223 and 521ai and l of the act which are relevant for our purpose read as under. 22 term of copyright in published literary dramatic musical and artistic works. except as otherwise hereinafter provided copyright shall subsist in any literary dramatic musical or artistic work other than a photograph published within the life time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. explanation in this section the reference to the author shall in the case of a work of joint authorship be construed as a reference to the author who dies last. 23 term of copyright in anonymous and pseudonymous works 1. in the case of a literary dramatic musical or artistic work other than a photographwhich is published anonymously or pseudonymously copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published. provided that where the identity of the author is disclosed before the expiry of the said period copyright shall subsist until sixty years from the beginning of the calendar year following the year in which the author dies. in sub section 1references to the author shall in the case of an anonymous work of joint authorship be construed. a where the identity of the authors is disclosed as references to that author. b where the identity of more authors than one is disclosed as references to the author who dies last from amongst such authors. in sub section 1references to the author shall in the case of a pseudonymous work of joint authorship be construed. a where the names of one or more but not all of the authors arc pseudonymous and his or their identity is not disclosed as references to the author whose name is not a pseudonym or if the names of two or more of the authors are not pseudonyms as references to such of those authors who dies last b where the names of one or more but not all of the authors arc pseudonyms and the identity of one or more of them is disclosed as references to the author who dies last from amongst the authors whose names are not pseudonyms and the authors whose names are pseudonyms and are disclosed and c where the names of all the authors arc pseudonyms and the identity of one of them is disclosed as references to the author whose identity is disclosed or if the identity of two or more of such authors is disclosed as references to such of those authors who dies last. for the purposes of this section the identity of an author shall be deemed to have been disclosed if either the identity of the author is disclosed publicly by both the author and the publisher or is otherwise established to the satisfaction of the copyright board by that author. certain acts not to be infringement of copyright 1. the following acts shall not constitute an infringement of copyright namely a a fair dealing with a literary dramatic musical or artistic work not being a computer programme for the purpose of i. private use including research ii criticism or review whether of that work or of any other work xxx xxx xxx i the performance in the course of the activities of an educational institution of a literary dramatic or musical work by the staff and student of the institution or of a cinematograph film or a sound recording if the audience is limited to such staff and students the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording. l the performance of a literary dramatic or musical work by an amateur club or society if the performance is given to a non paying audience or for the benefit of a religious institution. before adverting to the submissions made by the learned counsel for the parties we may notice the issues framed in the suit which are i does plaintiff prove that late dr shivaramaji karanth had acquired copyright in respect of seven yakshagana prasangas and also in respect of yakshagana dramatic or theatrical form i e bhishma. vijaya nala damayanthi kanakaangti or kanakangi kalyana abhimanyu or abhimanyu vadha chitrangadha or babruvahana kalaga panchavati chritha followed in the plaint. has the plaintiff became entitled to the said right under the registered will dated 18 06 1994. does the plaintiff prove that her right under the said will was infringed by the defendants. indisputably in view of the submissions made at the bar respondent had acquired copyright in respect of seven yakshagana prasangas as also in respect of yakshagana dramatic or theatrical form as a residuary legatee in terms of clause 12 of the will dated 18 6 1994. however we may notice that whereas the trial court has proceeded on the basis that clause 12 of the will shall apply in the instant case the high court opined that clause 11 thereof is attracted stating no doubt by reading para 12 of the will in isolation one can certainly arrive at the conclusion that the bequest made in favour of the plaintiff is in the nature of residuary bequest. but that is not all in the will ex. p 1 i have already referred to para no 11 of the will while dealing with the topic dramatic works vis vis literary work and therefore if the will is read in its entirety and if we take into account the benefits that flow from the bequest made by dr karanth in favour of the plaintiff it is not as if the plaintiff received the bequest only in respect of the things which form the residuary as mentioned in para 12 of the will but the plaintiff also was given the copyrights in respect of literary works and all books as well as the right to print republished and mark the literary works as well as the books. referring to the new encyclopaedia britannica and halsbury 's laws of england that a literary work with dramatic elements in it would also be literary work the high court observed dramatic works also could contain in its passages of great literary taste as in the case of great plays of william shakespear. therefore the main classification as literary work and dramatic work can not be construed to mean that dramatic work has nothing to do with literary work. the only difference i see in them is that the dramatic work plays forms the text upon which the performance of the plays rests whereas a literary work enables one to read the printed words. neither of the two can be produced without the imaginative skill of the author. it was furthermore held i am of the considered opinion that all the above changes brought about by dr karanth in respect of yakshagana ballet leads to the inference that the imaginative faculties of dr karanth permeated the entire yakshagana prasangas and thus a new look was given to the yakshagana ballets. i therefore hold that the bequest of copyright in literary works and books in favour of the plaintiff by dr karanth will have to be treated as the bequest covering the dramatic works also since i have also drawn the conclusion that the dramatic works is also a form of literature. therefore necessity of mentioning copyright separately in respect of dramatic works does not arise. the plaintiff therefore is entitled to copyright even in respect of the dramatic works namely the seven prasangas by virtue of bequest made in her favour in respect of copyrights and books. broadly speaking a dramatic work may also come within the purview of literary work being a part of dramatic literature. the new encyclopaedia britannica vol iv 15th edition provides the following information about dramatic literature. dramatic literature the texts of plays that can be read as distinct from being seen and heard in performance. we must however notice that the provisions the act make a distinction between the literary work and dramatic work. keeping in view the statutory provisions there can not be any doubt whatsoever that copyright in respect of performance of dance would not come within the purview of the literary work but would come within the purview of the definition of dramatic work. we however do not mean to suggest that any act of literary work will be outside the purview of the will dated 18 6 1994 our exercise in this behalf was only for the purpose of clarifying the provisions of the act with reference to the findings arrived at by the high court. for the aforementioned reasons we agree with dr dhavan that paragraph 12 of the will namely residuary clause shall apply in the instant case apart from the areas which are otherwise covered by paragraph 11 of the will. the residuary clause will apply because it is well settled that no part of the stay lies in limbo. it was also not a case where respondent in any manner whatsoever waived her right. the learned trial judge on issue no 4 opined that plaintiff had not been able to prove actual loss or damage particularly having regard to the fact that dr karanth had associated himself with the appellants for a long time. the learned trial judge recognized the equitable interest vested in the plaintiff respondent. a declaratory decree therefore was passed. we may notice at this stage that the form of injunction granted both by the learned trial judge as also by the high court in favour of the plaintiff respondent. the operative part of the judgment of the trial court reads as under defendants or their employees or agents are restrained from performing the above said 7 ballets or prasangas or in parts thereof in any manner as evolved distinctively by dr karanth by way of permanent injunction. the high court however directed iii. as far as the restraint order passed by the trial court by granting permanent injunction to the plaintiff is concerned the same is modified by ordering that if the appellants desire to stage any of the seven yakshagana prasangas in the manner and form as conceived in all respects viz. costumes choreography and direction by dr karanth the appellants can do so only in accordance with the provisions of the copyrights act1957 in view of copyright in seven prasangas vesting with the plaintiff. decree for injunction is an equitable relief. the courts while passing a decree for permanent injunction would avoid multiplicity of proceedings. the court while passing such a decree is obligated to consider the statutory provisions governing the same. for the said purpose it must be noticed as to what is a copyright and in respect of the matters the same can not be claimed or otherwise the same is lodged by conditions and subject to statutory limitation. in r g anand vs m s delux films ors 1978. 4 scc 1181978 indlaw sc 294this court held thus on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above the following propositions emerge 1 there can be no copyright in an idea subject matter themes plots or historical or legendary facts and violation of the copyright in such cases is confined to the form manner and arrangement and expression of the idea by the author of the copyrighted work. 2 where the same idea is being developed in a different manner it is manifest that the source being common similarities are bound to occur. in such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. if the defendant 's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. in other words in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3 one of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4 where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work no question of violation of copyright arises. 5 where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental. no infringement of the copyright comes into existence. a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. 7 where. however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. it is manifest that unlike a stage play a film has a much broader prospective wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. even so if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play violation of the copyright may be said to be proved. yet again in eastern book company ors vs d b modak anr 2008. 1 scc 12007 indlaw sc 1341this court held the copyright act is not concerned with the original idea but with the expression of thought. copyright has nothing to do with originality or literary merit. copyrighted material is that what is created by the author by his own skill labour and investment of capital maybe it is a derivative work which gives a flavour of creativity. the copyright work which comes into being should be original in the sense that by virtue of selection coordination or arrangement of pre existing data contained in the work a work somewhat different in character is produced by the author. on the face of the provisions of the copyright act1957we think that the principle laid down by the canadian court would be applicable in copyright of the judgments of the apex court. we make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of section 52 of the act there is no copyright in the original text of the judgments. to claim copyright in a compilation the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non obvious but at the same time it is not a product of merely labour and capital. the derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. the trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author. the high court in our opinion should have clarified that the appellants can also take the statutory benefit of the provisions contained in clauses ai and l of sub section 1 of section 52 of the act. section 52 of the act provides for certain acts which would not constitute an infringement of copyright. when a fair dealing is made inter alia of a literary or dramatic work for the purpose of private use including research and criticism or review whether of that work or of any other work the right in terms of the provisions of the said act can not be claimed. thus if some performance or dance is carried out within the purview of the said clause the order of injunction shall not be applicable. similarly appellant being an educational institution if the dance is performed within the meaning of provisions of clause i of sub section 1 of section 52 of the act strictly the order of injunction shall not apply thereto also. yet again if such performance is conducted before a non paying audience by the appellant which is an institution if it comes within the purview of amateur club or society the same would not constitute any violation of the said order of injunction. with the aforementioned modification in the order of injunction this appeal is dismissed. however in the facts and circumstances of the case there shall be no order as to costs. appeal dismissed.

FACTS yakshagana' is a form of ballet dance. it has its own heritage. indisputably,dr.kota shivarama karanth (for short,"dr.karanth"),a jnanapeeth awardee,who was a novelist,play writer,essayist,encyclopediationist,cultural anthropologist,artist,writer of science,environmentalist. he developed a new form of 'yakshagana'. he was a director of the appellant -institute. on or about 18.6.1994,he executed a will in favour of the respondent.dr.karanth expired on 9.12.1997. yakshagana ballet dance as developed by dr.karanth was performed in new delhi on or about 18.9.2001. respondent filed a suit for declaration,injunction and damages alleging violation of the copyright in respect of the said dance vested in her in terms of the said will stating that dr.karanth developed a new distinctive dance,drama troop or theatrical system which was named by him as 'yaksha ranga' which in his own words mean "creative extension of traditional yakshagana" and,thus,the appellants infringed the copyright thereof by performing the same at new delhi without obtaining her prior permission. it was stated that dr.karanth had composed seven verses or prasangas for staging yaksharanga ballet apart from bringing in changes in the traditional form thereof on its relevant aspects,namely,raga,tala,scenic arrangement,costumes etc. these prasangas are: (i) bhishma vijaya; (ii) nala damayanthi; (iii) kanakangi or kanakangi kalyana; (iv) abhimanyu or abhimanyu vada; (v) chitrangadha or babruvahana kalaga; (vi) panchavati; and (vii) ganga charitha. plaintiff -respondent admittedly claimed copyright in respect of 'literary and artistic works' in her favour in terms of clauses 11 and 12 of the said will dated 18.6.1994. plaintiff-respondent,inter alia,prayed for passing a judgment and decree against the defendants -appellants granting the following reliefs. 1.a declaration that the plaintiff is the exclusive copyright holder in respect of yaksharanga ballets,namely,bhishma vijaya,kanakangi,nala damayanthi,panchavati,gaya charitha,chitrangadha,abhimanyu vadha,and for consequential permanent injunction restraining the defendants,their agents,employees etc.from staging or performing any of the above said 7 ballets or prasangas or any parts thereof. 2.directing the defendants to pay to the plaintiff damages of rs.15,000/-towards infringement of her copyright on account of stating or performing abhimanyu vadha on 18-9-2001 at new delhi. 15,000-00. 3.directing the defendants to pay to the plaintiff interest on rs.15,000/-at 15% p.a.from 18-9-2001 till now which is 95-00. 4.directing the defendants to pay future interest on rs.15,000/-at 15% p.a.till payment of the entire amount. ARGUMENT (i) the copyright in the literary work has been assigned by reason of the said will in favour of the respondent in terms of clause 12 of the will. the form of copyright as regards dramatic work as has been held by the high court stating the same to be a part of the literary work is not correct as they connote two different things. the form of injunction granted in favour of the plaintiff -respondent is not in terms of the provisions of the copyright act,1957 as the appellant as an institution or otherwise is entitled to use the same in terms of clauses (a),(i) and (l) of sub-section (1) of section 52 thereof. ISSUE (i) does plaintiff prove that late dr.shivaramaji karanth had acquired copyright in respect of seven yakshagana prasangas and also in respect of yakshagana dramatic or theatrical form i.e.,bhishma vijaya,nala damayanthi,kanakaangti or kanakangi kalyana,abhimanyu or abhimanyu vadha,chitrangadha or babruvahana kalaga,panchavati chritha followed in the plaint? (ii) has the plaintiff became entitled to the said right under the registered will dated 18.06.1994? (iii) does the plaintiff prove that her right under the said will was infringed by the defendants? ANALYSIS a dramatic work may also come within the purview of literary work being a part of dramatic literature. paragraph 12 of the will,namely,residuary clause shall apply in the instant case apart from the areas which are otherwise covered by paragraph 11 of the will. the residuary clause will apply because it is well settled that no part of the stay lies in limbo. it was also not a case where respondent in any manner whatsoever waived her right. ,it must be noticed as to what is a copyright and in respect of the matters the same cannot be claimed or otherwise the same is lodged by conditions and subject to statutory limitation. in r.g.anand vs.m/s delux films & ors.[(1978) 4 scc 118]1978 indlaw sc 294,this court held the following. 1.there can be no copyright in an idea,subject-matter,themes,plots or historical or legendary facts and violation of the copyright in such cases is confined to the form,manner and arrangement and expression of the idea by the author of the copyrighted work. 2.where the same idea is being developed in a different manner,it is manifest that the source being common,similarities are bound to occur. in such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. if the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. in other words,in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3.one of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader,spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4.where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work,no question of violation of copyright arises. 5.where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6.as a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case-law discussed above. 7.where however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. it is manifest that unlike a stage play a film has a much broader prospective,wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. section 52 of the act provides for certain acts which would not constitute an infringement of copyright. when a fair dealing is made,inter alia,of a literary or dramatic work for the purpose of private use including research and criticism or review,whether of that work or of any other work,the right in terms of the provisions of the said act cannot be claimed. thus,if some performance or dance is carried out within the purview of the said clause,the order of injunction shall not be applicable. similarly,appellant being an educational institution,if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of section 52 of the act strictly,the order of injunction shall not apply thereto also. yet again,if such performance is conducted before a non-paying audience by the appellant,which is an institution if it comes within the purview of amateur club or society,the same would not constitute any violation of the said order of injunction. STATUTE the copyright act,1957 (for short,"the act") was enacted to amend and consolidate the law relating to copyright. section 2 of the copyright act,1957 is the interpretation section. section 2(c) of the copyright act,1957 defines 'artistic work'. the word 'author' is defined in section 2(d) of the copyright act,1957. the term "communication to the public" as defined in section 2(ff) of the copyright act,1957. section 2 (ffa) of the copyright act,1957 defines the word "composer",in relation to a musical work,to mean the person who composes the music regardless of whether he records it in any form of graphical notation. section 2(h) of the copyright act,1957 defines "dramatic work" to include any piece of recitation,choreographic work or entertainment in dumb show,the scenic arrangement or acting,form of which is fixed in writing or otherwise but does not include a cinematograph film. section 2(o) of the copyright act,1957 defines "literary work" to include computer programmes,tables and compilations including computer databases. section 2(qq) of the copyright act,1957 defines "performer" to include an actor,singer,musician,dancer,acrobat,juggler,conjurer,snake charmer,a person delivering a lecture or any other person who makes a performance. section 2(y) of the copyright act,1957 defines "work". section 13 of the copyright act,1957 which occurs in chapter iii of the act provides that subject to the provisions thereof and the other provisions of the said act,copyright shall subsists throughout india in the following classes of works,that is to say,- (a) original literary,dramatic,musical and artistic works; (b) cinematograph films; and (c) sound recording. section 17 of the copyright act,1957 deals with "first owner of copyright". sections 22,23 and 52(1)(a),(i) and (l) of the copyright act,1957,which are relevant for our purpose read as under. section 22 of the copyright act,1957 - term of copyright in published literary,dramatic,musical and artistic works. section 23 of the copyright act,1957-term of copyright in anonymous and pseudonymous works. section 52 of the copyright act,1957- certain acts not to be infringement of copyright.

FACTS yakshagana' is a form of ballet dance. it has its own heritage. indisputably,dr.kota shivarama karanth (for short,"dr.karanth"),a jnanapeeth awardee,who was a novelist,play writer,essayist,encyclopediationist,cultural anthropologist,artist,writer of science,environmentalist. he developed a new form of 'yakshagana'. he was a director of the appellant -institute. on or about 18.6.1994,he executed a will in favour of the respondent.dr.karanth expired on 9.12.1997. yakshagana ballet dance as developed by dr.karanth was performed in new delhi on or about 18.9.2001. respondent filed a suit for declaration,injunction and damages alleging violation of the copyright in respect of the said dance vested in her in terms of the said will stating that dr.karanth developed a new distinctive dance,drama troop or theatrical system which was named by him as 'yaksha ranga' which in his own words mean "creative extension of traditional yakshagana" and,thus,the appellants infringed the copyright thereof by performing the same at new delhi without obtaining her prior permission. it was stated that dr.karanth had composed seven verses or prasangas for staging yaksharanga ballet apart from bringing in changes in the traditional form thereof on its relevant aspects,namely,raga,tala,scenic arrangement,costumes etc. these prasangas are: (i) bhishma vijaya; (ii) nala damayanthi; (iii) kanakangi or kanakangi kalyana; (iv) abhimanyu or abhimanyu vada; (v) chitrangadha or babruvahana kalaga; (vi) panchavati; and (vii) ganga charitha. plaintiff -respondent admittedly claimed copyright in respect of 'literary and artistic works' in her favour in terms of clauses 11 and 12 of the said will dated 18.6.1994. plaintiff-respondent,inter alia,prayed for passing a judgment and decree against the defendants -appellants granting the following reliefs. 1.a declaration that the plaintiff is the exclusive copyright holder in respect of yaksharanga ballets,namely,bhishma vijaya,kanakangi,nala damayanthi,panchavati,gaya charitha,chitrangadha,abhimanyu vadha,and for consequential permanent injunction restraining the defendants,their agents,employees etc.from staging or performing any of the above said 7 ballets or prasangas or any parts thereof. 2.directing the defendants to pay to the plaintiff damages of rs.15,000/-towards infringement of her copyright on account of stating or performing abhimanyu vadha on 18-9-2001 at new delhi. 15,000-00. 3.directing the defendants to pay to the plaintiff interest on rs.15,000/-at 15% p.a.from 18-9-2001 till now which is 95-00. 4.directing the defendants to pay future interest on rs.15,000/-at 15% p.a.till payment of the entire amount. ARGUMENT (i) the copyright in the literary work has been assigned by reason of the said will in favour of the respondent in terms of clause 12 of the will. the form of copyright as regards dramatic work as has been held by the high court stating the same to be a part of the literary work is not correct as they connote two different things. the form of injunction granted in favour of the plaintiff -respondent is not in terms of the provisions of the copyright act,1957 as the appellant as an institution or otherwise is entitled to use the same in terms of clauses (a),(i) and (l) of sub-section (1) of section 52 thereof. ISSUE (i) does plaintiff prove that late dr.shivaramaji karanth had acquired copyright in respect of seven yakshagana prasangas and also in respect of yakshagana dramatic or theatrical form i.e.,bhishma vijaya,nala damayanthi,kanakaangti or kanakangi kalyana,abhimanyu or abhimanyu vadha,chitrangadha or babruvahana kalaga,panchavati chritha followed in the plaint? (ii) has the plaintiff became entitled to the said right under the registered will dated 18.06.1994? (iii) does the plaintiff prove that her right under the said will was infringed by the defendants? ANALYSIS a dramatic work may also come within the purview of literary work being a part of dramatic literature. paragraph 12 of the will,namely,residuary clause shall apply in the instant case apart from the areas which are otherwise covered by paragraph 11 of the will. the residuary clause will apply because it is well settled that no part of the stay lies in limbo. it was also not a case where respondent in any manner whatsoever waived her right. decree for injunction is an equitable relief. the courts while passing a decree for permanent injunction would avoid multiplicity of proceedings. the court while passing such a decree,is obligated to consider the statutory provisions governing the same. for the said purpose,it must be noticed as to what is a copyright and in respect of the matters the same cannot be claimed or otherwise the same is lodged by conditions and subject to statutory limitation. in r.g.anand vs.m/s delux films & ors.[(1978) 4 scc 118]1978 indlaw sc 294,this court held the following. 1.there can be no copyright in an idea,subject-matter,themes,plots or historical or legendary facts and violation of the copyright in such cases is confined to the form,manner and arrangement and expression of the idea by the author of the copyrighted work. 2.where the same idea is being developed in a different manner,it is manifest that the source being common,similarities are bound to occur. in such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. if the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. in other words,in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3.one of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader,spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4.where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work,no question of violation of copyright arises. 5.where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6.as a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case-law discussed above. 7.where however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. it is manifest that unlike a stage play a film has a much broader prospective,wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. section 52 of the act provides for certain acts which would not constitute an infringement of copyright. when a fair dealing is made,inter alia,of a literary or dramatic work for the purpose of private use including research and criticism or review,whether of that work or of any other work,the right in terms of the provisions of the said act cannot be claimed. thus,if some performance or dance is carried out within the purview of the said clause,the order of injunction shall not be applicable. similarly,appellant being an educational institution,if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of section 52 of the act strictly,the order of injunction shall not apply thereto also. yet again,if such performance is conducted before a non-paying audience by the appellant,which is an institution if it comes within the purview of amateur club or society,the same would not constitute any violation of the said order of injunction. STATUTE the copyright act,1957 (for short,"the act") was enacted to amend and consolidate the law relating to copyright. section 2 of the copyright act,1957 is the interpretation section. section 2(c) of the copyright act,1957 defines 'artistic work'. the word 'author' is defined in section 2(d) of the copyright act,1957. the term "communication to the public" as defined in section 2(ff) of the copyright act,1957. section 2 (ffa) of the copyright act,1957 defines the word "composer",in relation to a musical work,to mean the person who composes the music regardless of whether he records it in any form of graphical notation. section 2(h) of the copyright act,1957 defines "dramatic work" to include any piece of recitation,choreographic work or entertainment in dumb show,the scenic arrangement or acting,form of which is fixed in writing or otherwise but does not include a cinematograph film. section 2(o) of the copyright act,1957 defines "literary work" to include computer programmes,tables and compilations including computer databases. section 2(qq) of the copyright act,1957 defines "performer" to include an actor,singer,musician,dancer,acrobat,juggler,conjurer,snake charmer,a person delivering a lecture or any other person who makes a performance. section 2(y) of the copyright act,1957 defines "work". section 13 of the copyright act,1957 which occurs in chapter iii of the act provides that subject to the provisions thereof and the other provisions of the said act,copyright shall subsists throughout india in the following classes of works,that is to say,- (a) original literary,dramatic,musical and artistic works; (b) cinematograph films; and (c) sound recording. section 17 of the copyright act,1957 deals with "first owner of copyright". sections 22,23 and 52(1)(a),(i) and (l) of the copyright act,1957,which are relevant for our purpose read as under. section 22 of the copyright act,1957 - term of copyright in published literary,dramatic,musical and artistic works. section 23 of the copyright act,1957-term of copyright in anonymous and pseudonymous works. section 52 of the copyright act,1957- certain acts not to be infringement of copyright.

leave granted. interpretation of the provisions of s 461b of the trade and merchandise marks act1958 hereinafter called and referred to for the sake of brevity as the said act is involved herein. the factual matrix of the matter which is not much in dispute is as under. first respondent is the registered proprietor of a trade mark field marshal for diesel engines since 1964 bearing no 228867 one m s jain industries got the trade mark field marshal registered under clause 7inter alia for flour mills centrifugal pumps couplings for machines pulleys included in class 7 and valves parts of machines the said registration was renewed for the periods 13 5 1972 and 12 5 1979 13 5 1979 and 12 7 1986 and 13 7 1986 and 12 7 1993 appellant is said to have commenced its business of manufacturing and selling centrifugal pumps also under the mark field marshall. allegedly on the premise that the first respondent is the proprietor of the said mark by reason of long user and thus acquired a reputation in that behalf a legal notice was issued upon it questioning its right to use the said mark in respect of centrifugal pumps by the appellant laying a claim that it had been using the said mark since 1963. respondent no 1 thereafter filed a suit in the delhi high court for grant of a decree of permanent injunction being suit no 2408 of 1985 alleging infringement of the said mark andor claiming right of passing off in respect thereof. an ex parte order of injunction was passed on 19 12 1985 against the defendant appellant herein to the following effect. notice for april 81986 meanwhile a temporary ex parte injunction is issued against the defendants restraining them from manufacturing or selling either themselves or through any dealer or representative diesel oil engines or parts thereof with the trade mark field marshal andor any other trade mark identical therewith and all goods falling in cl 7 of the trade and merchandise mark rules. the plaintiff shall comply with the requirements of order 39 rule 4 of the code of civil procedure. indisputably during the proceedings in the above suit m s. jain industries by a deed of assignment assigned the said trade mark along with its goodwill in favour of the appellant. one of the stipulations contained therein reads as under that the party of the second part has satisfied the party of the first part of having used the mark field marshal in respect of centrifugal pumps and valves since 1973. indisputably first respondent filed an application under section 4656 and 107 of the act marked as c o no 9 of 1986contending that m s jain industries having not used the trade mark in respect of centrifugal pumps for a period more than five years and one month the mark should be taken off the register. it claimed user of the said mark since 1963 and sought for rectification of the register by expunging the expression circulation and centrifugal pumps from the specification of goods. indisputably appellant filed an application in form tm 24 on 17 6 1986 the assistant registrar trade marks passed an order on 10 11 1986 certifying that the trade mark field marshal brand word per se is registered under no 228867 in part a of the register as of the date 13th. may1965 in class 7 in respect of flour mills circulating and centrifugal pumps coupling for machines pulleys included in class 7and valves parts of machines in the name of pooran chand jain and kailash chand jain trading as jain industries1166phatak. suraj bhan belanganj agra. that pursuant to a request on form tm 23 dated 17th june1986 and order thereon dated 24th october1986. ganga ram anil kumar hufsunil kumar and sumitra rani trading as thukral mechanical works railway road sirhind punjab are registered as subsequent proprietors of this mark as from 30th may1986 by virtue of agreement dated 30th may1986 and. the registration of the aforesaid trade mark has been renewed from time to time and will remain in force for a period of a seven years from 13th. may1986 and may be renewed at the expiration of that period and of each succeeding period of a seven years. in the said c o no 9 of 1986 filed by the first respondent against m s jain industries despite service of notice nobody appeared on behalf of the defendant 16 1 1987 was the date fixed in the said suit. appellant 's counsel appeared on that date and inter alia contended that presently it was the registered owner of the trade mark which was sought to be cancelled. in view of that statement a submission was made on behalf of the first respondent that it may be permitted to withdraw the petition with liberty to file a fresh petition on the same cause of action. the learned judge directed recording of statements of the learned counsel in this behalf pursuant whereto the same were recorded which reads as under c o 9 of 1986. mr singh has filed a reply in this petition bringing out that presently he is the registered owner of the trademark which is sought to be cancelled in this petition. in view of this situation learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action after impleading m s thakural mechanical works etc. let the statement of learned counsel for the petitioner be recorded. statement of shri k l aggarwal counsel for petitioner without oath. in view of the submissions of m s thakural mechanical works i may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action. statement of shri hemant singh counsel for m s thakural mechanical works without oath. i have no objection if the petitioner is permitted to withdraw this petition with permission to file a fresh petition on this very cause of action. on the basis of the said statement the following order was passed this petition has been filed by m s pm diesels pvt ltd. against m s jain industries and the dy. registrar of trade marks under section 4656 and 107 of the trade and merchandise marks act1958 for rectification of entry relating to the registered trade mark no 228867 in class 7 after. the notice was served upon the respondent 1a reply has been filed by m s thakural mechanical works bringing out there in that they are now the registered proprietors of said. trade mark no 228867 in. this view of the matter learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action. the request is not opposed on behalf of m s thakural mechanical works. in these circumstances the request of the plaintiff is granted and petitioner is permitted to withdraw this petition and file a fresh petition on this very cause of action. the petition is accordingly filed as withdrawn leaving the parties to bear their own costs. a fresh application was filed by the first respondent. the said m s jain industries however was not impleaded as a party therein. the cause of action therefor was stated to have arisen in the following circumstances that the cause of action for the present petition arose in favour of the petitioner and against the respondents in the month of january 1987 when the respondent informed this honourable court that they have been recorded as subsequent proprietors of the impugned registered trade mark no 228867 in class 7 in c o no 9 of 1986whereupon the petitioner withdrew the said earlier petition c o no 9 of 1986 with permission of the court to file the present petition because of the changed circumstances. the cause of action is continuous from day to day till the impugned registration is cancelled rectified. the injunction matter in suit no 2408 of 1985 came up for hearing before a learned single judge of the high court. by an order dated 19 1 1988having regard to the provisions contained in the said act the learned judge opined that appellant having become the registered proprietor of the said trade mark no case for grant of injunction has been made out the interim order of injunction passed on 19 12 1985 was vacated and the defendants were permitted to use their registered trade mark subject to the following conditions a defendants will not use the logo style of the word field marshal of which logo and style the plaintiff is the proprietor under the copyright act. b defendants shall mention the name of the defendant firm thukral mechanical works sirhind on each and every centrifugal pump manufactured by them and sold in the name of field marshal. c the defendants shall maintain proper accounts of the sale of centrifugal pumps under the trade mark field marshal and shall file them in court as and when directed. correctness or otherwise of the said order has not been questioned. the second rectification application filed by the first respondent however was transferred to the intellectual property appellate board. the said application was dismissed. a writ petition was filed there against by the first respondent. a learned single judge of the delhi high court however refused to stay the operation of the order of the board dated 27 10 2004 an appeal was preferred there against. the division bench of the high court thereafter while disposing of both the writ petition and the letters patent appeal allowed the writ petition and set aside the order of the board and directed it to adjudicate the dispute on merits. the said order of the division bench is under challenge in this appeal. the core question which arises for our consideration is as to whether in the aforementioned facts and circumstances of the case the application under s 461b was maintainable. before adverting thereto we may take notice of the relevant statutory provisions ss 461b481482 and 56 read as under section 46 removal from register and imposition of limitations on ground of non use 1 subject to the provisions of section 47a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a high court or to the registrar by any person aggrieved on the ground either a b that up to a date one month before the date of the application a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being provided that except where the applicant has been permitted under sub s 3 of s 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark the tribunal may refuse an application u cl a or cl b in relation to any goods if it is shown that there has been before the relevent date or during the relevant period as the case may be bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description being goods in respect of which the trade mark is registered. section 48 registered users 1 subject to the provisions of section 49a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trademark is registered otherwise than as a defensive trade mark but the central government may by rules made in this behalf provide that no application for registration as such shall be enertained unless the agreement between the parties complies with the conditions laid down in the rules for preventing trafficking in trade marks. the permitted use of a trade mark shall be deemed to be used by the proprietor thereof and shall be deemed not to be used by a person other than the proprietor for the purposes of s 46 or for any other purpose for which such use is material under this act or any other law. section 56 power to cancel or vary registration and to rectify the register 1. on application made in the prescribed manner to a high court or to the registrar by any person aggrieved the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention or failure to observe a condition entered on the register in relation thereto. any person aggrieved by the absence or omission from the register of any entry or by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register or by any error of defect in any entry in the register may apply in the prescribed manner to a high court or to the registrar and the tribunal may make such order for making expunging or varying the entry as it may think fit. the tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. the tribunal of its own motion may after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard make any order referred to in sub s 1 or sub s 2. any order of the high court rectifying the register shall direct that notice of the rectification shall be served upon the registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. the power to rectify the register conferred by this section shall include the power to remove a trade mark registered in part a of the register to part b of the register. indisputably the scope of the provisions for removal from register in terms of s 46 and 56 of the act stand on different footings. whereas s 46 had a limited application s 56 of the act is wider in nature. concededly cl a of sub s 1 of s 46 is not attracted in the case. for the purpose of appreciation of the rival contentions we may notice the findings of the board as also the high court. the board has taken the view that the period of five years and one month will begin to run from the date on which thukral became the proprietor of the trademark that is30th may1986 and therefore the rectification application could have been filed by the appellant only sometime in 1991 opining that an application for rectification against the appellant within a period of seven and a half months from the date of assignment of the trade mark was not maintainable the application was dismissed. the high court on the other hand opined it was not anybody 's case before us that m s jain industries. the registered proprietor of the trademark used it at all. the trademark was used by the appellant and thukral neither of whom were proprietors thereof except that thukral claims to have become its proprietor with effect from 30th may1986 according to learned counsel for the appellant the use of the trademark by thukral was not legally permissible use inasmuch as thukral did not have the consent tacit or otherwise of m s jain industries to use the trademark. if thukral did then it can not be said that there was no bona fide use thereof by its proprietor. that is m s jain industries. this appears to be the position at least till 30th may1986 in. the meantime as a result of the ex parte ad interim injunction granted on 19th december 1985 by this court in suit no 2408 of 1985there was no question of thukral using the trademark field marshal till the injunction was vacated on 19th january1988. the act was enacted to provide for the registration and better protection of trademarks and for the prevention of the use of fraudulent marks of merchandise. registration of a trade mark remains valid for seven years. renewal applications are required to be filed on the expiry of seven years. m s jain industries got itself registered and obtained periodical renewal thereof as is required under the act. first respondent withdrew the application against m s jain industries. the prayer in the application was to take off the registered trade mark from the register in respect of centrifugal pumps goods so far as the registration made in favour of the appellant is concerned. it is in the aforementioned situation we are called upon to determine the meaning of the words for the time being occurring in s 461b of the act. two interpretations thereto which are possible are 1 the said words would denote non use of the trade mark in relation to the goods by the appellant for a period of five years or longer and 2 the mark had not been used for a period of five years or longer either by the present proprietor thereof or his predecessor. we may however also notice that another construction of the said provision has been put forth by mr sunderam learned senior counsel appearing on behalf of the appellant that the word proprietor would not mean a registered proprietor but also a person who has become proprietor by long use thereof. the words for the time being would mean differently in different situations. it may mean the moment or existing position as was held by this court in the case of jivendra nath kaul v collector district magistrate and anr 1992. 3 scc 576 1992 indlaw sc 1107 or in the context of cl 22 of art 366 of the constitution as has been held in h h maharajadhiraja. madhav rao jivaji rao scindia bahadur of gwalior h h maharajadhiraja. maharana shri bhagwat singhji bahadur of udaipur v union of india and anr air 1971. sc 530 1970 indlaw sc 300 para 88 to mean by the use of the expression for the time being in cl 22 of art 366. the president is not invested with authority to accord a temporary recognition to a ruler nor with authority to recognize or not to recognize a ruler arbitrarily the expression for them time being predicts that there shall be a ruler of the indian state that if the first recognized ruler dies or ceases to be a ruler a successor shall be appointed and that there shall not be more rulers than one at a given time. the terms also may bring within its umbrage the entire period of five years or more irrespective of the fact as to whether the registered proprietor was one or more than one as has been held by the high court. there can not be any doubt or dispute that the registration of a trade mark confers a very valuable right. the person in whose name the trade mark has been registered may take action against any person for passing off the goods as that of the registered owner. it confers an exclusive right of use of the trade mark in relation to the goods in which the trade mark is registered. the same is an assignable right in terms of s 36 of the act whereas an unregistered trade mark is not. user of the said mark therefore entails the consequences laid down under cl b of sub s 1 of s 46. however such an application can be filed only by a person aggrieved. when the applicant before the board establishes the fact in regard to non user of the mark for a period of more than five years on the part of the registered owner the latter may show that his case falls within the purview of sub s 3 of s 46. the question which therefore arises is as to who can prove that he had the bona fide intention to use the trade mark on the date of application for registration. indisputably it would be the registered proprietor. s 46 is a penal provision. it provides for civil or evil consequences. it takes away the valuable right of a registered proprietor. it therefore can be taken away only when the conditions laid down therefor are satisfied. while we say so we are not oblivious of the fact that trafficking in trade mark is to be discouraged. a registered proprietor of a trade mark should not be permitted to circumvent the law of user of the trade mark for a long time by assigning the same from time to time. but then such a case has to be made out. allegation of trafficking is a serious one. it must be proved in presence of the person against whom such allegations are made. at the time of grant of original registration advertisements are issued and objections are called for. renewal of registration in a sense also is not automatic. a person who had been using the said trade mark as a proprietor thereof by user is supposed to keep itself abreast with such applications filed by another either for registration of the trade mark or renewal thereof. the non user for a long time would disentitle a registered proprietor from renewal of the registration. it must not however be forgotten that s 461b provides for a special remedy. as a person obtains a right on and from the date of registration andor renewal thereof he can ordinarily be deprived of his right unless it is shown that the assignment thereof by his holder was not a bona fide one or had been made by way of camouflage. if the assignee has obtained assignment for bona fide use he may not be fastened with any liability owing to non user on the part of his predecessor. in other words the mistake of the predecessor should not be visited with non use of the present registered owner. it must however be observed that whether a use is for bona fide purpose would essentially be a question of fact. whether s 461b read with s 48 of the act would bring within its purview not only a registered proprietor but also the proprietor who had otherwise acquired a right would depend upon the facts and circumstances of each case. in kabushiki kaisha toshiba v tosiba appliances co ors 2008 8 scale 354 2008 indlaw sc 1395this court held we do not find any force in the aforementioned submission. cls a and b operate in different fileds. sub s 3 covers a case falling within cl b and not the cl a thereof. had the intention of the parliament been that sub s 3 covers cases falling under cl b and clause ahaving regard to the similarity of the expressions used there was no reason as to why it could not be stated so explicitly. it was furthermore opined there may be a case where owing to certain special circumstances a continuous use is not possible. the trade mark for which registration is obtained is used intermittently. such non user for a temporary period may be due to any exigency including a bar under a statute or a policy decision of the government or any action taken against the registrant. it was observed that in cases of intermittent use also cl b shall apply. in kabushiki kaisha toshiba this court relied upon hardie trading ltd anr. v addisons paint chemicals ltd 2003 11 scc 92 2003 indlaw sc 756 in our opinion the phrase person aggrieved for the purposes of removal on the ground of non use under s 46 has a different connotation from the phrase used in s 56 for canceling or expunging or varying an entry wrongly made or remaining in the register. the submission of mr sudhir chandra. that the appellant was an infringer both of the right of m s jain industries as also the first respondent and thus its use was not bona fide in a case of this nature can not be accepted. if appellant infringed the right of m s jain industries it was for it to take action there for. it did not. first respondent itself accepts that at least immediately prior to the institution of the suit appellant had been using the same. we are not concerned herein as to since when it had been doing so. it obtained an or of injunction. the order of injunction was vacated. for one reason or the other the said order attained finality. prima facie therefore appellant has been held to be the registered owner of the trade mark. it is one thing to say that for the purpose of frustrating an application for rectification the appellant had colluded with its predecessor for the purpose of trafficking by entering into the deed of assignment which is otherwise illegal and bad in law. but it is another thing to say that the appellant could be proceeded against alone for non user of the registered trade mark for a period of more than five years. for the purpose of making out such a case both the original registrants as also the assignee were required to be impleaded as parties. we may at this stage notice that in law of trade marks by mr k c kailasam while commenting on s 47 of the trade marks act1999 to which our attention has been drawn by mr sudhir chandra it is stated. notes on clauses. this clause corresponds to s 46 of the existing act and provides for removal of a trade mark from the register on the ground of non use. a trade mark which is not used within five years of its registration becomes liable for removal either completely or in respect of those goods or services for which the mark has not been used. under s 461it is proposed to clarify that the five years period will start from the date on which the trade mark is actually entered on the register. this amendment is intended to remove any ambiguity as for all other purposes the date of registration will be the date on which the application was filed vide cl 232 proviso to sub cl 1 also provides that the tribunal may refuse removal of the mark if it is shown that any proprietor had in fact made bona fide use of the trademark for goods or services of the same description or associated goods or services. it is also proposed to increase the period from 1 to 3 months in cl 471a and b in which use of the trade mark prior to the date of filing of the application for removal of the trade mark shall be disregarded. this is intended to prevent the registered proprietor to by pass the act by such token use after he comes to know that an application for removal is about to be filed sub cl 3 protects a mark from being removed from the register on ground of non use if such non use is shown to have been due to special circumstances in the trade. the clause is proposed to be modified to clarify that special circumstances in the trade will include restrictions imposed by any law or regulation on the use of trade mark in india. consequential amendments have been made to cover services cl 47 of the bill. the court while construing a statute takes into consideration the parliamentary intent in amending the provisions thereof. it seeks to enhance the period of moratorium of use of the registered trade mark from one month to three months so as to prevent speculative assignment. thus a case of speculative assignment is specifically required to be made out. such an application may be maintainable in terms of s 56 of the act but strictly not in terms of s 461b thereof and that too in the absence of the original registered proprietor. we are not satisfied with the explanation offered by the first respondent that it gave up the case of non use of the registered trade mark against m s jain industries on the basis of statement made by the learned counsel for the appellant firstly because consent does not confer jurisdiction secondly because want andor lack of jurisdiction on the part of the tribunal can not be waived as if any order is passed without jurisdiction the same would be a nullity and thirdly because the cause of action even according to the first respondent in his application before the high court was different. the counsel appearing on behalf of the appellant did not state that it had waived its right so far as non impleadment of m s jain industries was concerned. it only consented for grant of liberty in favour of the first respondent for filing of an application for the self same cause of action. the question of maintainability of the second suit is absence of the registrant proprietor was not and could not have been the subject matter of consent at that stage. the cause of action which permitted the first respondent to file an application for rectification against m s jain industries was non user thereof by it. its non user and rectification of the register could not in the aforementioned situation have been tagged with the cause of action if any against the appellant. the second contention of mr that the appellant was an infringer of the trade mark is again a question of fact. the right of the first respondent as a proprietor of the trade mark by reason of a long user is required to be determined vis vis m s jain industries as also the appellant in the suit filed by it which is pending. the board could not while exercising its jurisdiction under s 461bof the act proceeded on the basis of such presumption. it is not correct that no cause of action survived against jain industries. it was not lost by reason of assignment as was contended by the learned counsel. in the suit only the competing right of the first respondent qua the appellant can be determined and not a right against m s such a right can not be determined in a proceeding under s 461b of the act which is restricted to non user of the registered trade mark. both the appellant and the respondent no 1 were the infringers of the right of m s jain industries as it was the registered proprietor of the trade mark in respect of the goods in question namely centrifugal pumps. two interpretations of the said provision s 461b are possible. while interpreting the same however certain basic principles of construction of statute must be kept in mind. as it takes away somebody 's right it deserves strict construction. jurisdiction of the board being dependent on determination of the foundational facts the same was required to be established on the basis of the averments made in the application and not otherwise. the right of a registered trade mark is not lost automatically on the expiry of five years and one month. it does not provide for a sun set law. it has to be adjudicated upon. whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding. the principle of purchaser of a property has a duty to make enquiriestherefore cannot apply in a case of this nature. so long as the right to assign a registered trade mark remains valid once the same is validly assigned the assignee derives the same right as that of the assignor in terms of the statute. a title to a trade mark derived on assignment as provided for under the act can not be equated with a defective title acquired in any other property as admittedly on the date of assignment the right of the registered trade mark was not extinguished. both the findings of the high court which we have noticed hereinbefore are findings on question of law and in that view of the matter the contention of mr sudhir chandra that the merit of the matter is yet to be gone into by the board can not be a ground for ignoring the submissions made at the bar. our attention has again been drawn to a passage from law of trade marks geographical indications by shri k c kailasam wherein the judgment of the tribunal has been criticized in the following terms from the above legislative intent it would seem that the period of non use of the trade mark is to be reckoned continuously from the date of its registration. in the case of american home products corporation v mac laboratories pvt ltd. rendered under the 1958 act it was held by the supreme court that the person seeking to have the trade mark removed from the register has only to prove. such continuous non user. it would appear that neither the u k act nor the indian act at any time envisaged that the commencement of 5 year period of non use is to be delinked from the date of registration of the mark so as to give a fresh lease of life to the registration every time there is change in the ownership of the mark. if that be so any registered proprietor could easily defeat an application for rectification by assigning the mark to some other person to have a fresh period of 5 years from the date of assignment and thus effectively frustrate the very object of the provision in s 471a and b further it is to be noted that an assignment is subject to the provisions of the act and any rights vested in any other person see. s 37 the assignor can not obviously transfer more rights than he himself has to the assignee under the act. we do not think that the approach of the learned author is entirely correct. an assigner can transfer only such right which he possesses. if his title is not extinguished by reason of a provision of a statute for non user of the trade mark for a period of five years any assignment made shall be valid subject to such situation which we have noticed in paragraph 25 supra. for the views we have taken we are of the opinion that the impugned judgment can not be sustained. it is set aside accordingly. the board shall however proceed to determine afresh the application filed by the first in the light of the legal principles explained above. the appeal is allowed with costs. counsel 's fee assessed at rs 100000. appeal allowed.

FACTS interpretation of the provisions of s.46(1)(b) of the trade and merchandise marks act,1958 is involved herein. first respondent is the registered proprietor of a trade mark 'field marshal' for diesel engines since 1964 bearing no.228867. one m/s. jain industries got the trade mark 'field marshal' registered under clause (7),inter alia,for flour mills,centrifugal pumps,couplings for machines,pulleys included in class 7 and valves (parts of machines). the said registration was renewed for the periods 13.5.1972 and 12.5.1979; 13.5.1979 and 12.7.1986 and 13.7.1986 and 12.7.1993. appellant is said to have commenced its business of manufacturing and selling centrifugal pumps also under the mark 'field marshall. allegedly,on the premise that the first respondent is the proprietor of the said mark by reason of long user and,thus,acquired a reputation in that behalf,a legal notice was issued upon it questioning its right to use the said mark in respect of centrifugal pumps by the appellant laying a claim that it had been using the said mark since 1963. respondent no.1 thereafter filed a suit in the delhi high court for grant of a decree of permanent injunction being suit no.2408 of 1985 alleging infringement of the said mark and/or claiming right of passing off in respect thereof. an ex parte order of injunction was passed on 19.12.1985 against the defendant. meanwhile,a temporary ex parte injunction is issued against the defendants restraining them from manufacturing or selling either themselves or through any dealer or representative diesel oil engines or parts thereof with the trade mark 'field marshal' and/or any other trade mark identical therewith and all goods falling in cl.7 of the trade and merchandise mark rules. the second rectification application filed by the first respondent,however,was transferred to the intellectual property appellate board. the said application was dismissed. a writ petition was filed there against by the first respondent. a learned single judge of the delhi high court,however,refused to stay the operation of the order of the board dated 27.10.2004.an appeal was preferred there against. the division bench of the high court thereafter while disposing of both the writ petition and the letters patent appeal allowed the writ petition and set aside the order of the board and directed it to adjudicate the dispute on merits. the said order of the division bench is under challenge in this appeal. ARGUMENT appellant's counsel appeared on that date and,inter alia,contended that presently it was the registered owner of the trade mark which was sought to be cancelled. in view of that statement,a submission was made on behalf of the first respondent that it may be permitted to withdraw the petition with liberty to file a fresh petition on the same cause of action. ISSUE whether in the aforementioned facts and circumstances of the case,the application under s.46(1)(b) was maintainable. whether to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned. ANALYSIS the core question which arises for our consideration is as to whether in the aforementioned facts and circumstances of the case,the application under s.46(1)(b) was maintainable. indisputably,the scope of the provisions for removal from register in terms of s.46 and 56 of the act stand on different footings. whereas s.46 had a limited application,s.56 of the act is wider in nature. concededly,cl.(a) of sub-s.(1) of s.46 is not attracted in the case. the prayer in the application was to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned. it is in the aforementioned situation,it is advisable to determine the meaning of the words 'for the time being' occurring in s.46(1)(b) of the act. two interpretations thereto which are possible are: (1) the said words would denote non-use of the trade mark in relation to the goods by the appellant for a period of five years or longer; and (2) the mark had not been used for a period of five years or longer either by the present proprietor thereof or his predecessor. the words 'for the time being' would mean differently in different situations. it may mean 'the moment or existing position' as was held by this court in the case of jivendra nath kaul v. collector/district magistrate and anr.[(1992. 3 scc 576 1992 indlaw sc 1107] or in the context of cl.(22) of art.366 of the constitution as has been held in h.h.maharajadhiraja. madhav rao jivaji rao scindia bahadur of gwalior,h.h.maharajadhiraja. maharana shri bhagwat singhji bahadur of udaipur v. union of india and anr.,air 1971. sc 530 1970 indlaw sc 300 para 88 to mean: "by the use of the expression "for the time being" in cl.(22) of art.366. the president is not invested with authority to accord a temporary recognition to a ruler nor with authority to recognize or not to recognize a ruler arbitrarily : the expression "for them time being" predicts that there shall be a ruler of the indian state,that if the first recognized ruler dies,or ceases to be a ruler,a successor shall be appointed,and that there shall not be more rulers than one at a given time. the person in whose name the trade mark has been registered may take action against any person for passing off the goods as that of the registered owner. it confers an exclusive right of use of the trade mark in relation to the goods in which the trade mark is registered. whether s.46(1)(b) read with s.48 of the act would bring within its purview,not only a registered proprietor but also the proprietor who had otherwise acquired a right would depend upon the facts and circumstances of each case. the court while construing a statute takes into consideration the parliamentary intent in amending the provisions thereof. it seeks to enhance the period of moratorium of use of the registered trade mark from one month to three months so as to prevent speculative assignment. thus,a case of speculative assignment is specifically required to be made out. such an application may be maintainable in terms of s.56 of the act but strictly not in terms of s.46(1)(b) thereof and that too in the absence of the original registered proprietor. attention has again been drawn to a passage from 'law of trade marks &; geographical indications' by shri k.c.kailasam,wherein the judgment of the tribunal has been criticized in the following terms : "from the above legislative intent,it would seem that the period of non-use of the trade mark is to be reckoned continuously from the date of its registration. in the case of american home products corporation v. mac laboratories pvt.ltd. rendered under the 1958 act,it was held by the supreme court that "the person seeking to have the trade mark removed from the register has only to prove. such continuous non-user." it would appear that neither the u.k.act,nor the indian act,at any time envisaged that the commencement of 5 year period of non-use is to be delinked from the date of registration of the mark,so as to give a fresh lease of life to the registration,every-time there is change in the ownership of the mark. if that be so,any registered proprietor could easily defeat an application for rectification by assigning the mark to some other person to have a fresh period of 5 years from the date of assignment and thus effectively frustrate the very object of the provision in s.47(1)(a) and (b). further,it is to be noted that an assignment is subject to "the provisions of the act and any rights vested in any other person" -see. s.37. the assignor cannot obviously transfer more rights than he himself has to the assignee under the act. an assigner can transfer only such right which he possesses. STATUTE interpretation of the provisions of s.46(1)(b) and section 48 of the trade and merchandise marks act,1958

FACTS first respondent is the registered proprietor of a trade mark 'field marshal' for diesel engines since 1964 bearing no.228867. one m/s. jain industries got the trade mark 'field marshal' registered under clause (7),inter alia,for flour mills,centrifugal pumps,couplings for machines,pulleys included in class 7 and valves (parts of machines). the said registration was renewed for the periods 13.5.1972 and 12.5.1979; 13.5.1979 and 12.7.1986 and 13.7.1986 and 12.7.1993. appellant is said to have commenced its business of manufacturing and selling centrifugal pumps also under the mark 'field marshall. allegedly,on the premise that the first respondent is the proprietor of the said mark by reason of long user and,thus,acquired a reputation in that behalf,a legal notice was issued upon it questioning its right to use the said mark in respect of centrifugal pumps by the appellant laying a claim that it had been using the said mark since 1963. respondent no.1 thereafter filed a suit in the delhi high court for grant of a decree of permanent injunction being suit no.2408 of 1985 alleging infringement of the said mark and/or claiming right of passing off in respect thereof. an ex parte order of injunction was passed on 19.12.1985 against the defendant. meanwhile,a temporary ex parte injunction is issued against the defendants restraining them from manufacturing or selling either themselves or through any dealer or representative diesel oil engines or parts thereof with the trade mark 'field marshal' and/or any other trade mark identical therewith and all goods falling in cl.7 of the trade and merchandise mark rules. the second rectification application filed by the first respondent,however,was transferred to the intellectual property appellate board. the said application was dismissed. a writ petition was filed there against by the first respondent. a learned single judge of the delhi high court,however,refused to stay the operation of the order of the board dated 27.10.2004.an appeal was preferred there against. the division bench of the high court thereafter while disposing of both the writ petition and the letters patent appeal allowed the writ petition and set aside the order of the board and directed it to adjudicate the dispute on merits. the said order of the division bench is under challenge in this appeal. ARGUMENT appellant's counsel appeared on that date and,inter alia,contended that presently it was the registered owner of the trade mark which was sought to be cancelled. in view of that statement,a submission was made on behalf of the first respondent that it may be permitted to withdraw the petition with liberty to file a fresh petition on the same cause of action. ISSUE whether in the aforementioned facts and circumstances of the case,the application under s.46(1)(b) was maintainable. whether to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned. ANALYSIS the scope of the provisions for removal from register in terms of s.46 and 56 of the act stand on different footings. whereas s.46 had a limited application,s.56 of the act is wider in nature. the act was enacted to provide for the registration and better protection of trademarks and for the prevention of the use of fraudulent marks of merchandise. registration of a trade mark remains valid for seven years. renewal applications are required to be filed on the expiry of seven years. m/s.jain industries got itself registered and obtained periodical renewal thereof as is required under the act. first respondent withdrew the application against m/s.jain industries. the prayer in the application was to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned. 'for the time being' occurring in s.46(1)(b) of the act, two interpretations thereto which are possible are: (1) the said words would denote non-use of the trade mark in relation to the goods by the appellant for a period of five years or longer; and (2) the mark had not been used for a period of five years or longer either by the present proprietor thereof or his predecessor. the registration of a trade mark confers a very valuable right. the person in whose name the trade mark has been registered may take action against any person for passing off the goods as that of the registered owner. it confers an exclusive right of use of the trade mark in relation to the goods in which the trade mark is registered. the same is an assignable right in terms of s.36 of the act,whereas an unregistered trade mark is not. a registered proprietor of a trade mark should not be permitted to circumvent the law of user of the trade mark for a long time by assigning the same from time to time. but then such a case has to be made out. allegation of trafficking is a serious one. it must be proved in presence of the person against whom such allegations are made. at the time of grant of original registration,advertisements are issued and objections are called for. renewal of registration,in a sense,also is not automatic. a person who had been using the said trade mark as a proprietor thereof by user is supposed to keep itself abreast with such applications filed by another either for registration of the trade mark or renewal thereof. the non-user for a long time would disentitle a registered proprietor from renewal of the registration. s.46(1)(b) provides for a special remedy. as a person obtains a right on and from the date of registration and/or renewal thereof,he can ordinarily be deprived of his right unless it is shown that the assignment thereof by his holder was not a bona fide one or had been made by way of camouflage. if the assignee has obtained assignment for bona fide use,he may not be fastened with any liability owing to non-user on the part of his predecessor. in other words,the mistake of the predecessor should not be visited with non-use of the present registered owner. in kabushiki kaisha toshiba v.tosiba appliances co.& ors.[(2008) 8 scale 354 2008 indlaw sc 1395],this court held that they did not find any force in the aforementioned submission. cls.(a) and (b) operate in different fields. sub-s.(3) covers a case falling within cl.(b) and not the cl.(a) thereof. had the intention of the parliament been that sub-s.(3) covers cases falling under cl.(b) and clause (a),having regard to the similarity of the expressions used,there was no reason as to why it could not be stated so explicitly. it was furthermore opined that there may be a case where owing to certain special circumstances,a continuous use is not possible. the trade mark for which registration is obtained is used intermittently. such non-user for a temporary period may be due to any exigency including a bar under a statute,or a policy decision of the government or any action taken against the registrant. prima facie,therefore,appellant has been held to be the registered owner of the trade mark. it is one thing to say that for the purpose of frustrating an application for rectification,the appellant had colluded with its predecessor for the purpose of trafficking by entering into the deed of assignment which is otherwise illegal and bad in law but it is another thing to say that the appellant could be proceeded against alone for non-user of the registered trade mark for a period of more than five years. for the purpose of making out such a case,both the original registrants as also the assignee were required to be impleaded as parties. the counsel appearing on behalf of the appellant did not state that it had waived its right so far as non-impleadment of m/s jain industries was concerned. it only consented for grant of liberty in favour of the first respondent for filing of an application for the self-same cause of action. the question of maintainability of the second suit is absence of the registrant proprietor was not and could not have been the subject matter of consent at that stage. the cause of action which permitted the first respondent to file an application for rectification against m/s.jain industries was non-user thereof by it. its non-user and rectification of the register could not,in the aforementioned situation,have been tagged with the cause of action,if any,against the appellant. the right of a registered trade mark is not lost automatically on the expiry of five years and one month. it does not provide for a 'sun set' law.it has to be adjudicated upon. whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding. the principle of 'purchaser of a property has a duty to make enquiries',therefore,cannot apply in a case of this nature. so long as the right to assign a registered trade mark remains valid,once the same is validly assigned,the assignee derives the same right as that of the assignor in terms of the statute. a title to a trade mark derived on assignment as provided for under the act cannot be equated with a defective title acquired in any other property as admittedly on the date of assignment,the right of the registered trade mark was not extinguished. an assigner can transfer only such right which he possesses. if his title is not extinguished by reason of a provision of a statute for non-user of the trade mark for a period of five years,any assignment made shall be valid. the submission of mr. sudhir chandra. that the appellant was an infringer both of the right of m/s. jain industries as also the first respondent and,thus,its use was not bona fide in a case of this nature cannot be accepted. STATUTE section 46 of the trade and merchandise marks act,1958- removal from register and imposition of limitations on ground of non-use. section 48 of the trade and merchandise marks act,1958 -registered users. section 56 of the trade and merchandise marks act,1958 -power to cancel or vary registration and to rectify the register.

this appeal by special leave is directed against order dated 13 7 2005 passed by the division bench of the bombay high court. dismissing letter patents appeal preferred by the appellant against the order of the learned single judge who dismissed his writ petition and confirmed the orders passed by the state minister for revenue in the proceeding r t s 3402 pra kra 309 l 6 dated 18th october2002. it is the appellant 's case that his father shri nawoosingh panjumal panjwani was a displaced person who migrated from pakistan to india during the period of partition and the appellant 's family while in pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas. after migration the family took shelter at refugee camp of pimpri pune in maharashtra. in view of enactment of displaced persons compensation and rehabilitation act1954 by the union of india the immovable properties left behind by muslims who had migrated to pakistan were acquired and the same was distributed to displaced persons as a compensation pool. accordingly father of the appellant was allotted a land admeasuring 2 acres 5 gunthas bearing revenue survey nos 351 and 1182 situated at village lonavala taluka maval district pune. it has been pleaded by the appellant that survey no 1181 and 1182 are one and the same thing. the facts in brief as narrated in the impugned order are that survey nos 118328 and 351 of lonavala were originally owned by one haji habib tar mohammed janu. the said haji habib tar mohammed janu migrated to pakistan and while going to pakistan he sold his property to one smt. hajrabi haji yusuf on 4 6 1949 however this transaction was cancelled by the collector and custodian of evacuee property on 17 4 1949 as per section 8i of the evacuee properties act and these lands were accordingly entered as evacuee property by the tahsildar maval on 26 10 1949 it appears that these survey numbers were also given c t s no 129130 a130 b and 133. it appears that in cts no 129130 a130 b and 133apart from vacant land there is a bungalow no 52 habib villa. it appears that the regional settlement commissioner placed this property for auction through government auctioner and one gulabbai desaipurchased the said property in auction for a consideration of rs 16750 on 17 5 1956 and accordingly sale certificate was issued by the regional settlement commissioner bombay on behalf of the government. in the said sale certificate the c t s no 129130 a130 b and 133 of village lonavala were mentioned. the area of this cts nos were as under. on the basis of the said sale certificate the mutation entry no 1836 was effected in the village record in favour of gulabai desai and thereby her name was entered in survey nos 1181b and 328 of village lonavala to the extent of 29 30 ares and 70 ares respectively. thereafter gulabai sold cts no 133 admeasuring 33 gunthas on 24 4 1977 to respondent no 3 genu kadu. the said gulabai also gifted her remaining area from this survey numbers to her grandson anil gajanan desai on 15 1 1979who in turn has sold his properties to respondent no 2. prem hasmatraj lalwani in the year 1980. the survey nos 1182 and 351being evacuee properties were allotted to the appellant in the year 1956 later on it was found that the appellant is in possession of more area and therefore the said order was modified on 6 5 1982 and excess area was granted to the appellant on payment of rs 31360 which appellant had paid on 17 5 1982 in government treasury and thereby the deputy collector and assistant settlement commissioner pune granted the excess land to the appellant and thereafter the dispute started between the parties. in the impugned order division bench made it clear that since the dispute between the parties was in respect of the area as to what has been purchased in auction sale by gulabai desai and what is the area allotted to the appellant by the orders of the deputy collector and deputy custodian of evacuee properties the appellant requested the bench not to enter into the merits on this question in this lpa since the parties may prosecute their remedies in the civil court for such adjudication and therefore that aspect was not considered by the high court. however in the facts of the conflicting claims the appellant made grievance to the deputy collector and the deputy custodian of evacuee properties in respect of the mutation made in favour of the respondent gulabai and other respondents and therefore by order dated 18 9 1984 the deputy collector and deputy custodian of evacuee properties pune directed the sub divisional officer haveli sub division to take up the case in revision under section 257 of maharashtra land revenue code and pass necessary orders. in view of these directions the sub divisional officer haveli sub division pune initiated proceeding rts revision 14 of 1984 and by order dated 30 7 1985 cancelled the mutation entry no 1836 which comprises land admeasuring 7897 sq yards and directed necessary corrections in the record as per the observations made in the order. it appears that the said order was taken in appeal by the respondent and the matter was remanded to the sub divisional officer. after remand the sub divisional officer conducted inquiry and again passed an order on 29 10 1987 and confirmed the earlier order. therefore the rts appeal no 128 of 1987 was preferred before the collector which was disposed off by the additional collector on 13 7 1993 by the said order the order of the third sub divisional officer was maintained. however further inquiry as directed by the sdo was to be conducted. since the mutation entry no 1836 was cancelled by above order the talathi gave effect to these orders and effected the mutation entry no 2176 and showed the disputed properties in the name of the collector and deputy custodian of evacuee properties. the directions were issued by the collector to the tahsildar to place the appellant in possession of the property as per the orders of the deputy collector and the deputy custodian of evacuee properties. however instead of giving effect to those orders it appears that the revenue officers at tahsil level effected two mutations viz mutation no 2377 and 2394 by mutation entry no 2377 the name of respondent was again mutated in the record and by the mutation entry no 2394 the name of genu kadu was mutated in the record. since the collector noticed on complaint that the orders of the collector has been bypassed or surpassed by the subordinate revenue officers the collector by order dated 12 7 1999 directed the sdo to take these mutations namely mutation entry no 2377 and 2394 in revision and therefore the sub divisional officer maval division has taken these mutations in revision bearing rts revision no 12 of 1999 the said revision was decided by the sub divisional officer at maval on 28 1 2000 and those mutations were cancelled. being aggrieved by the order passed in the said revision respondent no 2 lalwani preferred rts appeal no 81 of 2000 and the respondent no 3 genu kadu preferred rts appeal no 114 of 2000 both. these rts appeals were heard by the additional collector pune and by order dated 28 5 2001 the addl. collector pune dismissed the said appeals and confirmed the order of the sub divisional officer maval. aggrieved by the said order of the additional collector respondent no 2 preferred rts revision no 330 of 2001 under section 257 of maharashtra land revenue code1966 before the additional commissioner pune division pune. the said revision was decided by the additional commissioner pune by order dated 22 11 2001 and the said revision was dismissed. respondent no 2 challenged this order of the additional commissioner by filing the proceeding rts 3402 pra kra 309 l 6 by way of second revision before the revenue minister for state and the said proceeding was decided by the minister for state on 18 10 2002 the revenue minister allowed the said proceeding and set aside the orders passed by the sub divisional officer maval dated 28 1 2000order dated 28 5 2001 of additional collector pune and of additional commissioner dated 22 11 2001and thus restored the position as reflected by the mutation entries nos 1836 and 2377 and 2394 thus all the entries in favour of the respondents were protected and maintained by the order of the state minister for revenue. appellant challenged the order dated 19 10 2002 passed by the minister by filing a writ petition which was dismissed by learned single judge of the bombay high court. thereafter the appellant filed letters patent appeal which was also dismissed by the division bench holding that when the state minister for revenue entertained the matter he was possessed of jurisdiction under section 257 of the maharashtra land revenue code and therefore the order passed by him under the said authority is within his jurisdiction power and competence. the division bench observed thus. we record our finding. that under section 257 of the maharashtra land revenue code more than one revision is possible. now coming to the facts of the present case the mutation entry no 1836 was in fact certified. however the sub divisional officer has taken the said mutation in revision in rts revision no 14 of 1984 and has set aside the mutation by order dated 30 7 1985 there was appeal as against that order which was remanded. it was again decided by the sub divisional officer on 29 10 1987 and the said mutation was set aside. there was rts appeal no 128 of 1987 which was decided on 13 7 1993 in view of these orders the mutation entry no 1836 was cancelled and mutation entry no 2176 was effected whereby the name of the collector and the deputy collector of the evacuee property was entered into 7 x 12 extracts. it is further found that when the orders of the collector directing to put the petitioner into possession were not obeyed by the subordinate revenue officers and the revenue officers effected the mutation entry no 2377 in favour of the respondent nos 3 gulabai desai and mutation entry no 2394 in favour of the respondent no 5 genu kadu and thereafter for second time the special divisional officer maval has exercised the revisional powers under section 257 and initiated proceeding rts revision 12 of 1999 in respect of the mutation entry no 2377 and 2394 the rts revision 1299 was allowed on 28 1 2000 as against that two rts appeals namely rts appeal no 81 of 2000 and rts appeal no 114 of 2000 were preferred by the respondent. they were decided on 28 5 2001 as against that the rts revision no 330 of 2001 was preferred. the same was dismissed. as against that the rts proceeding bearing no 3402 pra. kra 309 l 6 was preferred before the minister for state. all these proceedings will show that twice the sub divisional officer has exercised the revisional power under section 257 at the directions of the collector namely the rts revision no 14 of 1984 and rts revision no 12 of 1999 it will further reveal that the appeals as against the rts revision no 14 of 1984 was preferred by the parties in view of the provisions of section 247 and 249 sub section 2 it will equally appear that when the orders were passed in revision application no 12 of 1999 before the sub divisional officer in exercise of the powers under section 257 the parties have preferred two rts appeals in view of the provisions of section 247 and 249 sub section 2 not only that thereafter the rts revision application no 330 of 2001 was also preferred before the commissioner and if the view is taken that the second revision is not tenable then in that circumstances since the first order passed in rts revision no 12 of 1999 is a revisional order this second revision before the commissioner being rts revision no 330 of 2001 would not have been tenable. however said revision rts 330 of 2001 is tenable since the appeals as provided under section 247 and 249 intervene in between the revisional orders passed by the sub divisional officer and the commissioner. thus in short we find that the scheme under maharashtra land revenue code is quite different scheme and it permits more than one revision. thus viewed from any angle we find that the state minister for revenue when he entertained the matter state minister for revenue was possessed of jurisdiction under section 257 of the maharashtra land revenue code and therefore the order passed by him under the said authority is within his jurisdiction power and competence. hence the present appeal by special leave. mr huzefa ahmadi learned senior counsel appearing for the appellant mainly attacked the revisional power exercised by the minister concerned in purported exercise of jurisdiction under section 257 of the maharashtra land revenue code. in the alternative learned senior counsel submitted that even if it were to be admitted without prejudice that second revision is maintainable the minister being the revisional authority should not have interfered with the findings recorded by all the six revenue authorities. referring the decision of the bombay high court in the case of sambappa vs state of maharashtra 2002 scc on line bombay 1222learned counsel submitted that when the sub divisional officer additional collector and additional commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries in such a case the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact. section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision. learned counsel referring the revisional jurisdiction of the high court under section 115 of the code of civil procedure tried to impress us that when the power of revision is given to the district judge then the high court can not entertain second revision petition under section 115 of the code. learned counsel relied upon the decision of this court in the case of state of kerala vs k m charia abdulla co air 1965. sc 1585 1964 indlaw sc 353 and hari shankar vs rao girdhari lal chowdhury air 1963 sc 698 1961 indlaw sc 157. ahmadi learned senior counsel further submitted that a request was made to the high court not to enter into the merit of the case and to confine itself to the question whether a second revision was at all maintainable in the light of the ratio in harishankar 's case 1961. indlaw sc 157 supra1962 suppl 1 scr 933. 1961 indlaw sc 157hiralal kapur vs prabhu choudhury1988 2 scc 172 1988 indlaw sc 342 and helper girdharbhai vs saiyed mohmad mirasaheb kadri and others1987 3 scc 538 1987 indlaw sc 28281 learned counsel also drew our attention to the decision of this court in dharampal vs ramshri1993 1 scc 435 1993 indlaw sc 1325 where this court held. that a second revision to the high court under section 482 of the cr. p c was not permitted. lastly mr ahmadi submitted that the second revision would not lie under section 257 of the revenue code since section 259 of the code provides an opportunity to the state government to only correct any final order while exercising power under the provisions of section 257 i e with regard to its legality and propriety. ravindra srivastava learned senior counsel appearing for the respondent state at the very outset submitted that the appellant conceded before the high court not to decide the merit of the case. the only point raised before the high court was with regard to the maintainability of second revision before the state government under section 257 of the revenue code. learned counsel submitted that section 257 expressly confers power of revision on the state government which power is coupled with power of control and superintendence. learned counsel submitted that the commissioner or the additional commissioner is not equal in a rank but subordinate to the state government. learned counsel submitted that the state government is the supreme revenue authority and existence of more than one appeal or revision to an aggrieved party is not per se abhorrent to any legal principle depends upon the statute. srivastava then contended that the high court correctly analysed and appreciated the scheme of the code vis a vis judicial review in revenue matters. learned counsel put heavy reliance on the decision of this court in the case of ishwar singh vs. state of rajasthan and others2005. 2 scc 334 2005 indlaw sc 6 for the proposition that there can be a second revision under the same provision of the statute. the only question that falls for consideration is as to whether a second revision under section 257 is maintainable and that whether the state government exceeds its jurisdiction in entertaining the second revision. before we proceed to decide the aforesaid question we would like to refer the relevant provisions of the maharashtra land revenue code 1966. section 231 defines the revenue officer as under 2 31 revenue officer means every officer of any rank whatsoever appointed under any of the provisions of this code and employed in or about the business of the land revenue or of the surveys assessment accounts or records connected therewith. chapter ii deals with the revenue officers their powers and duties. sections 56 and 7 reads as under 5 chief controlling authority in revenue matters. the chief controlling authority in all matters connected with the land revenue in his division shall vest in the commissioner subject to the superintendence direction and control of the state government. 6 revenue officers in division. the state government shall appoint a commissioner of each division and may appoint in a division an additional commissioner and so many assistant commissioners as may be expedient to assist the commissioner provided that nothing in this section shall preclude the appointment of the same officer as commissioner for two or more divisions. 7 revenue officers in district 1the state government shall appoint a collector for each district including the city of bombay who shall be in charge of the revenue administration there of and a tahsildar for each taluka who shall be the chief officer entrusted with the local revenue administration of a taluka. the state government may appoint one or more additional collectors and in each district including the city of bombay and so many assistant collectors and deputy collectors with such designations such as firstsecondsuper numeraryetc. assistants as may be expressed in the order of their appointmentone or more naib tahsildars in a taluka and one or more additional tahsidars or naib tahsildars therein and such other persons having such designations to assist the revenue officers as it may deem expedient. 3 subject to the general orders of the state government the collector may place any assistant or deputy collector in charge of one more sub divisions of a district or may himself retain charge thereof. such assistant or deputy collector may also be called a sub divisional officer. the collector may appoint to each district as many persons as he thinks fit to be circle officers and circle inspectors to be in charge of a circle and one or more talathis for a saza and one or more kotwals or other village servants for each village or group of villages as he may deem fit. section 11 of the code is worth to be quoted herein. below 11 subordination of officers. 1 all revenue officers shall be subordinate to the state government. 2 unless the state government directs otherwise all revenue officers in a division shall be subordinate to the commissioner and all revenue officers 2in a district including the city of bombay shall be subordinate to the collector. 3unless the state government directs otherwise all other revenue officers including survey officers shall be subordinated the one to the other in such order as the state government may direct. sections 13 and 14 deal with the powers and duties of all revenue officers. from reading of the aforesaid provisions it is manifest that the state government makes appointment of the revenue officers including the commissioner and the chief controlling authorities in the revenue matters. section 5 makes it clear that the chief controlling authority in all matters connected with the land revenue in his division shall vest with the commissioner subject to superintendence directions and control of the state government. section 11 provides that all revenue officers shall be subordinate to the state government. it is therefore clear that in revenue matters the state government is the supreme revenue authority. in the present case we noticed the scheme of the code in the matters of hearing and disposal of appeals revision and review. section 247 deals with the appeal and appellate authorities which reads as under 247 appeal and appellate authorities. in the absence of any express provisions of this code or of any law for the time being in force to the contrary an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column 1 of the schedule e under this code or any other law for the time being in force to the officer specified in column 2 of that schedule whether or not such decision or order may itself have been passed on appeal from the decision of order of the officer specified in column 1 of the said schedule. provided that in no case the number of appeals shall exceed two 2 when on account of promotion of change of designation an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against the appeal shall lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this code. section 248 is also relevant which provides the forum of appeal to the state government. similarly section 249 makes provision of appeal against the review or revision. the schedule preferred to in section 227 mentions the authorities before whom appeal would lie. the schedule appended to the code is as follows schedule e see section 247. section 257 is the relevant provision which deals with the power of state government and of certain revenue and survey officers to call for and examine the records and proceedings of subordinate officers. section 257 reads as under 257 power of state government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers. the state government and any revenue of survey officer not inferior in rank to an assistant or deputy collector or a superintendent of land records in their respective departments may call for and examine the record of any inquiry or the proceedings of any subordinate revenue or survey officer for the purpose of satisfying itself or himself as the case may be as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. a tahsildar a naib tahsildar and a district inspector of land records. may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held. 3 if in any case it shall appear to the state government or any officer referred to in sub section 1 or sub section 2 that any decision or order or proceedings so called for should be modified annulled or reversed it or he may pass such order thereon as it or he deems fit. provided that the state government or such officer shall not vary or reverse any order affecting any question of right between private persons without having to the parties interested notice to appear and to be heard in support of such order. provided further that an assistant of deputy collector shall not himself pass such order in any matter in which a formal inquiry has been held but shall submit the record with his opinion to the collector who shall pall such order thereon as he may deem fit. a bare reading of the aforesaid provision would show that the provision uses the word and for state government but for other revenue officers. it uses the word or. the language and the words used in the said provision suggest that jurisdiction of the state government is concurrent with the jurisdiction of other revenue officers in deciding the revision. hence even if one party goes to the commissioner in revision the state government can still be approached under section 257 for revision. the power of revision exercised by any revenue officer including the commissioner is a proceeding by a subordinate officer and the state government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the revenue officers. further in view of the fact that state government itself appoints the revenue officers including the commissioner under the scheme of the code and all revenue officers are subordinate to the state government as per section 11 of the act and even the chief controlling authority in all matters connected with the land revenue in his division is vested with the commissioner they are subject to the superintendence direction and control of the state government as provided under section 5 of the code. the power of the state government has further been widened by section 259 of the code which reads as under 259 rules as to decisions or orders expressly made final whenever in this code it is provided that a decision or order shall be final or conclusive such provision shall mean that no appeal lies from any such decision or order but it shall be lawful to the state government alone to modify annul or reverse any such decision or order under the provision of section 257. the aforesaid provision makes it clear that even if the decision is considered to be final the state government 's power to call for and examine the record and proceedings of subordinate officers is saved. in other words the state government in exercise of its revisional as well as general power of superintendence and control can call for any record of proceedings and consider the legality and propriety of the orders passed by the revenue officers under section 247 or 257 of the code. from perusal of the entire scheme of the code including section 257it is manifest that the revisional powers are not only exercisable by the state government but also by certain other revenue officers. there is nothing in the code to suggest that if these revisional powers are exercised by a revenue officer who has jurisdiction it can not be further exercised by a superior revenue officer or by the state government. a fair reading of sections 257 and 259 suggests that if revisional powers are exercised by a revenue officer having jurisdiction to do so further revisional power can be exercised by the superior officer or by the state government. a similar question came for consideration before this court in the case of ishwar singh vs 2 scc 334 under the rajasthan cooperative societies act1965 in that ac t by section 128 power was conferred upon the state government and the registrar to call for and examine the records of any enquiry or proceedings of any other matter of any officer subordinate to them for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed by such officer. it was submitted by the counsel that section 128 related to two authorities i e the state government and the registrar. in fact the two authorities are interchangeable. if one authority exercises revisional power the other authority logically can not have exercised such power. hence it was argued that second revision was not maintainable. rejecting the submission this court held 20 sub section 2 of section 124 provides that if the decision or order is made by the registrar appeal lies to the government and if the decision or order is made by any other person or a cooperative society the appeal lies to the registrar. therefore under chapter xiii a clear distinction is made between the state government and the registrar. the test is whether the two authorities with concurrent revisional jurisdiction are equal in rank. it is therefore not correct as contended by learned counsel for the appellant that the two authorities i e the state government and the registrar are interchangeable. the power of the government and the registrar in terms of section 128 excludes matters which are covered by section 125 i e revision by the tribunal. considering the entire scheme of the code and the provisions contained in sections 257 and 259we are of the definite opinion that the minister concerned of the state government can entertain second revision to satisfy the legality and propriety of the order passed by the revenue officer. the division bench of the bombay high court has elaborately discussed the question and passed the impugned order holding that section 257 confers jurisdiction to the state government to entertain its revision against the order passed by any revenue officer either in appeal or in revision. we find no infirmity in the impugned order passed by the high court. hence this appeal has no merit which is accordingly dismissed. before parting with the order we must make it clear that in view of the request made by the appellant before the high court not to enter into the merit of the case since the party may prosecute their remedies in the civil court for adjudication we have not expressed any opinion with regard to the merit of the case of the parties. the parties may prosecute their remedies in civil court in accordance with law. petition dismissed.

FACTS survey nos.118,328 and 351 of lonavala were originally owned by one haji habib tar mohammed janu. the said haji mohammed migrated to pakistan and while going to pakistan,he sold his property to one smt.hajrabi haji yusuf on 4.6.1949. however,this transaction was cancelled by the collector and custodian of evacuee property on 17.4.1949 as per section 8(i) of the evacuee properties act and these lands were accordingly entered as evacuee property by the tahsildar,maval on 26.10.1949. it appears that in cts no.129,130-a,130-b and 133,apart from vacant land there is a bungalow no.52-habib villa. it appears that the regional settlement commissioner placed this property for auction through government auctioner and one gulabbai desai purchased the said property in auction for a consideration of rs.16,750/- on 17.5.1956 and,accordingly,sale certificate was issued by the regional settlement commissioner,bombay on behalf of the government. in the said sale certificate the c.t.s.no 129,130-a,130-b and 133 of village lonavala were mentioned. on the basis of the sale certificate the mutation entry no.1836 was effected in the village record in favour of gulabai desai,and thereby her name was entered in survey nos.118/1b and 328 of village lonavala to the extent of 29.30 acres and 70 acres respectively. thereafter,gulabai sold cts no.133 admeasuring 33 gunthas on 24.4.1977 to respondent no.3 genu kadu. the said gulabai also gifted her remaining area from this survey numbers to her grandson anil gajanan desai on 15.1.1979,who in turn has sold his properties to respondent no.2 -prem hasmatraj lalwani in 1980. the survey nos.118/2 and 351,being evacuee properties,were allotted to the appellant in the year 1956. later on,it was found that the appellant is in possession of more area and,therefore,the said order was modified and excess area was granted to the appellant on payment of rs.31,360/-,which appellant had paid on 17.5.1982 in government treasury and thereby the deputy collector and assistant settlement commissioner,pune granted the excess land to the appellant,and thereafter the dispute started between the parties. being aggrieved by the order passed in the revision,respondent no.2 lalwani preferred rts appeal no.81 of 2000 and the respondent no.3 genu kadu preferred rts appeal no.114 of 2000. both these rts appeals were heard by the additional collector,pune and by order the addl.collector,pune dismissed the said appeals and confirmed the order of the sub divisional officer,maval. aggrieved by the said order of the additional collector,respondent no.2 preferred rts revision no.330 of 2001 under section 257 of maharashtra land revenue code,1966 before the additional commissioner,pune division,pune. the said revision was decided by the additional commissioner,pune and it was dismissed. appellant challenged the order dated 19.10.2002 passed by the minister by filing a writ petition,which was dismissed by learned single judge of the bombay high court. thereafter,the appellant filed letters patent appeal,which was also dismissed by the division bench holding that when the state minister for revenue entertained the matter,he was possessed of jurisdiction under section 257 of the maharashtra land revenue code and,therefore,the order passed by him under the said authority is within his jurisdiction,power and competence. ARGUMENT it is the appellant's case that his father shri nawoosingh panjumal panjwani was a displaced person who migrated from pakistan to india during the period of partition and the appellant's family while in pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas.after migration,the family took shelter at refugee camp of pimpri,pune in maharashtra. in view of enactment of displaced persons (compensation and rehabilitation) act,1954 by the union of india,the immovable properties left behind by muslims who had migrated to pakistan were acquired and the same was distributed to displaced persons as a "compensation pool". referring the decision of the bombay high court in the case of sambappa vs.state of maharashtra [(2002) scc on line,bombay 1222],learned counsel submitted that when the sub-divisional officer,additional collector and additional commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries,in such a case,the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact. section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision. learned counsel referring the revisional jurisdiction of the high court under section 115 of the code of civil procedure tried to impress us that when the power of revision is given to the district judge,then the high court cannot entertain second revision petition under section 115 of the code. ISSUE whether a second revision under section 257 is maintainable and that whether the state government exceeds its jurisdiction in entertaining the second revision? ANALYSIS the state government makes appointment of the revenue officers including the commissioner and the chief controlling authorities in the revenue matters. section 5 makes it clear that the chief controlling authority in all matters connected with the land revenue in his division shall vest with the commissioner,subject to superintendence,directions and control of the state government. section 11 provides that all revenue officers shall be subordinate to the state government. it is,therefore,clear that in revenue matters the state government is the supreme revenue authority. the power of revision exercised by any revenue officer including the commissioner is a proceeding by a subordinate officer and the state government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the revenue officers. state government itself appoints the revenue officers including the commissioner under the scheme of the code and all revenue officers are subordinate to the state government as per section 11 of the act,and even the chief controlling authority in all matters connected with the land revenue in his division is vested with the commissioner,they are subject to the superintendence,direction and control of the state government as provided under section 5 of the code. the state government's power to call for and examine the record and proceedings of subordinate officers is saved. the revisional powers are not only exercisable by the state government but also by certain other revenue officers. there is nothing in the code to suggest that if these revisional powers are exercised by a revenue officer who has jurisdiction,it cannot be further exercised by a superior revenue officer or by the state government. in the case of ishwar singh v. state of rajasthan and others,(2005) 2 scc 334 under the rajasthan cooperative societies act,1965, this court held:- sub-section (2) of section 124 provides that if the decision or order is made by the registrar,appeal lies to the government and if the decision or order is made by any other person,or a cooperative society,the appeal lies to the registrar. therefore,under chapter xiii a clear distinction is made between the state government and the registrar. the test is whether the two authorities with concurrent revisional jurisdiction are equal in rank. it is,therefore,not correct as contended by learned counsel for the appellant that the two authorities i.e.the state government and the registrar are interchangeable. the power of the government and the registrar in terms of section 128 excludes matters which are covered by section 125 i.e. revision by the tribunal. STATUTE section 2(31) of the maharashtra land revenue code 1966 defines the revenue officer as that “revenue officer" means every officer of any rank whatsoever appointed under any of the provisions of this code, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith. chapter ii deals with the revenue officers,their powers and duties. section 5 of the maharashtra land revenue code 1966 - chief controlling authority in revenue matters. section 6 of the maharashtra land revenue code 1966 -revenue officers in division. section 7 of the maharashtra land revenue code 1966 revenue officers in district. section 11 of the maharashtra land revenue code 1966- subordination of officers. sections 13 and 14 of the maharashtra land revenue code 1966 deal with the powers and duties of all revenue officers. section 247 of the maharashtra land revenue code 1966 deals with the appeal and appellate authorities. section 248 of the maharashtra land revenue code 1966 provides for the forum of appeal to the state government. section 249 of the maharashtra land revenue code 1966 makes provision of appeal against the review or revision. section 257 of the maharashtra land revenue code 1966- power of state government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers. section 259 of the maharashtra land revenue code 1966- rules as to decisions or orders expressly made final.

FACTS survey nos.118,328 and 351 of lonavala were originally owned by one haji habib tar mohammed janu. the said haji mohammed migrated to pakistan and while going to pakistan,he sold his property to one smt.hajrabi haji yusuf on 4.6.1949. however,this transaction was cancelled by the collector and custodian of evacuee property on 17.4.1949 as per section 8(i) of the evacuee properties act and these lands were accordingly entered as evacuee property by the tahsildar,maval on 26.10.1949. it appears that these survey numbers were also given c.t.s.no.129,130-a,130-b and 133. it appears that in cts no.129,130-a,130-b and 133,apart from vacant land there is a bungalow no.52-habib villa. it appears that the regional settlement commissioner placed this property for auction through government auctioner and one gulabbai desai purchased the said property in auction for a consideration of rs.16,750/- on 17.5.1956 and,accordingly,sale certificate was issued by the regional settlement commissioner,bombay on behalf of the government. in the said sale certificate the c.t.s.no 129,130-a,130-b and 133 of village lonavala were mentioned. on the basis of the sale certificate the mutation entry no.1836 was effected in the village record in favour of gulabai desai,and thereby her name was entered in survey nos.118/1b and 328 of village lonavala to the extent of 29.30 acres and 70 acres respectively. thereafter,gulabai sold cts no.133 admeasuring 33 gunthas on 24.4.1977 to respondent no.3 genu kadu. the said gulabai also gifted her remaining area from this survey numbers to her grandson anil gajanan desai on 15.1.1979,who in turn has sold his properties to respondent no.2 -prem hasmatraj lalwani in 1980. the survey nos.118/2 and 351,being evacuee properties,were allotted to the appellant in the year 1956. later on,it was found that the appellant is in possession of more area and,therefore,the said order was modified and excess area was granted to the appellant on payment of rs.31,360/-,which appellant had paid on 17.5.1982 in government treasury and thereby the deputy collector and assistant settlement commissioner,pune granted the excess land to the appellant,and thereafter the dispute started between the parties. being aggrieved by the order passed in the revision,respondent no.2 lalwani preferred rts appeal no.81 of 2000 and the respondent no.3 genu kadu preferred rts appeal no.114 of 2000. both these rts appeals were heard by the additional collector,pune and by order the addl.collector,pune dismissed the said appeals and confirmed the order of the sub divisional officer,maval. aggrieved by the said order of the additional collector,respondent no.2 preferred rts revision no.330 of 2001 under section 257 of maharashtra land revenue code,1966 before the additional commissioner,pune division,pune. the said revision was decided by the additional commissioner,pune and it was dismissed. appellant challenged the order dated 19.10.2002 passed by the minister by filing a writ petition,which was dismissed by learned single judge of the bombay high court. thereafter,the appellant filed letters patent appeal,which was also dismissed by the division bench holding that when the state minister for revenue entertained the matter,he was possessed of jurisdiction under section 257 of the maharashtra land revenue code and,therefore,the order passed by him under the said authority is within his jurisdiction,power and competence. ARGUMENT it is the appellant's case that his father shri nawoosingh panjumal panjwani was a displaced person who migrated from pakistan to india during the period of partition and the appellant's family while in pakistan was having agricultural land over there admeasuring 4 acres 10 gunthas.after migration,the family took shelter at refugee camp of pimpri,pune in maharashtra. in view of enactment of displaced persons (compensation and rehabilitation) act,1954 by the union of india,the immovable properties left behind by muslims who had migrated to pakistan were acquired and the same was distributed to displaced persons as a "compensation pool". referring the decision of the bombay high court in the case of sambappa vs.state of maharashtra [(2002) scc on line,bombay 1222],learned counsel submitted that when the sub-divisional officer,additional collector and additional commissioner had concurrently recorded finding in favour of the appellant by observing that the revenue record is not in consonance with the factual aspect and they have directed to correct the revenue entries,in such a case,the second revisional authority exceeded its jurisdiction in entertaining the said application and interfering with the finding of fact. section 257 makes it clear that a revisional authority has to consider only the legality and propriety of the decision. learned counsel referring the revisional jurisdiction of the high court under section 115 of the code of civil procedure tried to impress us that when the power of revision is given to the district judge,then the high court cannot entertain second revision petition under section 115 of the code. ISSUE whether a second revision under section 257 is maintainable and that whether the state government exceeds its jurisdiction in entertaining the second revision? ANALYSIS the state government makes appointment of the revenue officers including the commissioner and the chief controlling authorities in the revenue matters. section 5 makes it clear that the chief controlling authority in all matters connected with the land revenue in his division shall vest with the commissioner,subject to superintendence,directions and control of the state government. section 11 provides that all revenue officers shall be subordinate to the state government. it is,therefore,clear that in revenue matters the state government is the supreme revenue authority. the power of revision exercised by any revenue officer including the commissioner is a proceeding by a subordinate officer and the state government can satisfy itself as to the legality and propriety of any decision including the order passed in revision by the revenue officers. state government itself appoints the revenue officers including the commissioner under the scheme of the code and all revenue officers are subordinate to the state government as per section 11 of the act,and even the chief controlling authority in all matters connected with the land revenue in his division is vested with the commissioner,they are subject to the superintendence,direction and control of the state government as provided under section 5 of the code. the state government's power to call for and examine the record and proceedings of subordinate officers is saved. the revisional powers are not only exercisable by the state government but also by certain other revenue officers. there is nothing in the code to suggest that if these revisional powers are exercised by a revenue officer who has jurisdiction,it cannot be further exercised by a superior revenue officer or by the state government. in the case of ishwar singh v. state of rajasthan and others,(2005) 2 scc 334 under the rajasthan cooperative societies act,1965, this court held:- sub-section (2) of section 124 provides that if the decision or order is made by the registrar,appeal lies to the government and if the decision or order is made by any other person,or a cooperative society,the appeal lies to the registrar. therefore,under chapter xiii a clear distinction is made between the state government and the registrar. the test is whether the two authorities with concurrent revisional jurisdiction are equal in rank. it is,therefore,not correct as contended by learned counsel for the appellant that the two authorities i.e.the state government and the registrar are interchangeable. the power of the government and the registrar in terms of section 128 excludes matters which are covered by section 125 i.e. revision by the tribunal. STATUTE section 2(31) of the maharashtra land revenue code 1966 defines the revenue officer as that “revenue officer" means every officer of any rank whatsoever appointed under any of the provisions of this code, and employed in or about the business of the land revenue or of the surveys, assessment, accounts, or records connected therewith. chapter ii deals with the revenue officers,their powers and duties. section 5 of the maharashtra land revenue code 1966 - chief controlling authority in revenue matters. section 6 of the maharashtra land revenue code 1966 -revenue officers in division. section 7 of the maharashtra land revenue code 1966 revenue officers in district. section 11 of the maharashtra land revenue code 1966- subordination of officers. sections 13 and 14 of the maharashtra land revenue code 1966 deal with the powers and duties of all revenue officers. section 247 of the maharashtra land revenue code 1966 deals with the appeal and appellate authorities. section 248 of the maharashtra land revenue code 1966 provides for the forum of appeal to the state government. section 249 of the maharashtra land revenue code 1966 makes provision of appeal against the review or revision. section 257 of the maharashtra land revenue code 1966- power of state government and of certain revenue and survey officers to call for and examine records and proceedings of subordinate officers. section 259 of the maharashtra land revenue code 1966- rules as to decisions or orders expressly made final.

the main question raised in this appeal by special leave at the instance of state of gujarat and the collector of sabarkantha against the gujarat high court 's judgment and order dated january 30311975 allowing the writ petition of the respondent is whether once the competent authority under s 24 i of the bombay merged territories and areas jagirs abolition. act1953 bombay act. no xxxix of 1954 declares that a particular jagir is a proprietary one a further inquiry under s 37 2 of the bombay land revenue code bombay act. No v of 1879 with a view to determining whether the jagirdar had any rights to mines or mineral products in his jagir granted or recognised under any contract grant or law for the time being in force or by custom or usage is competent. the facts giving rise to the said question are these by hajur order no 116 dated october 271933the respondent maharaj shri amar singji himatsingji was granted daljitgarh jagir comprising of 10 villages mentioned in the said order in jivarak for maintenance by the then ruler of idar by another hajur order no 807 dated january 121934the respondent was given a further grant in jivarak of 3 villages mentioned in that order with effect from october 11933 by yet another hajur order no 964 dated november 21194714 villages including kapoda and isarwada were granted in jivarak to the respondent by the ruler of idar in substitution of the villages mentioned in the previous two orders. according to the respondent by these grants parvanas read together he was given full proprietary rights in the soil of the said villages that is to say it was a proprietary jagir that was granted to him by the then ruler. admittedly on the coming into force of the bombay merged territories and areas jagirs abolition act1953 hereinafter referred to as the act i e with effect from respondent 's daljitgarh jagir stood abolished and all his rights in the jagir villages save as expressly provided by or under the act were extinguished and the respondent became entitled to compensation under s 11 of the act. it appears that for the purpose of implementing the provisions of the act the competent authority collector of district sabarkantha held an inquiry into the question whether the respondent 's jigir was proprietary involving any right or interest in the soil or non proprietary involving mere assignment of land revenue or rent due to government under s 2 4 i of the act and having regard to the documentary and other evidence led before it the competent authority by its order dated september 81959held that the daljitgarh jagir of the respondent was a proprietary jagir. it further appears that pursuant to an order dated november 241959passed by the mamlatdar idar an entry was made on june 181963in the relevant revenue records village form no 6 of one of the villages kapoda comprised in the jagir to the effect that the respondent 's right to take out gravel and stones was recognised but the right relating to excavation of mica had been reserved and retained by the government this entry was only certified on march 301965 according to the respondent since the entries made in the revenue records in respect of his rights to mines and mineral products were not sufficient and proper and though the mamlatdar 's order dated november 241959 was in respect of two villages namely kapoda and isarwada the relevant entry in respect of greval and stones had been made only in regard to village kapoda he by his application dated october 111968requested the collector sabarkantha to issue necessary orders to the mamlatdar idar to make appropriate entries regarding his rights in the minerals in village isarwada. a similar application containing similar request was also made by the respondent to the mamlatdar taluka idar on october 41971 thereupon a notice under s 372 of the bombay land revenue code for the purpose of holding an inquiry into the rights of the respondent to mines and mineral products of the said villages claimed by the respondent wag served upon him but the respondent raised a preliminary objection that such inquiry wag misconceived and incompetent in view of the determination made under s 2 4 i of the act and having regard to the provisions of s 10 of the act his rights to mines and mineral products were expressly saved the collector of sabarkantha appellant no 2 overruled the preliminary objection and by order dated february 231973directed that the inquiry shall proceed and the respondent was directed to produce his evidence in support of his claim on a date that would be fixed and intimated to him. aggrieved by this order passed by the collector on february 231973the respondent preferred a writ petition special civil application no 1224 of 1973 under art 227 of the constitution to the gujarat high court and writ of certiorari quashing the order dated february 231973 and a direction restraining the collector from further proceeding with the inquiry under s 372 of the land revenue code were sought. these reliefs sought by the respondent were resisted by the state of gujarat and the collector the appellants before us principally on the ground that the inquiry under s 372 of the land revenue code into the rights to mines and mineral products in the said villages claimed by the respondent was necessary and proper and could not be said to be concluded by the determination made under s 2 4 1 of the act by the competent authority. the high court negatived the contentions urged by the appellants and took the view that in the determination by the competent authority under s 2 4 i of the act that the respondent 's jagir was a proprietary one there was implicit decision that the respondent was a grantee of the soil which included sub soil entitling him to mines and mineral products and as such a further inquiry by the collector under s 372 of the bombay land revenue code was incompetent and without jurisdiction and therefore the collector 's order dated february 231973 was liable to be quashed. accordingly the high court set aside the collector 's order and further issued an injunction permanently restraining the state of gujarat and the collector from initiating any inquiry under s 372 in respect of the respondents rights to mines and mineral products in the said villages. the appellants seek to challenge the said judgment and order of the gujarat high court in this appeal. learned counsel for the appellants has contended that the high court has adopted an erroneous view of the scope and ambit of the inquiry contemplated under s 24i of the act by the competent authority in as much as under the said provision the competent authority had power merely to decide the question whether the respondents jagir was a proprietary or a non proprietary jagir and had no dower or jurisdiction to determine whether on the appointed date that is on august 11954 when the act came into force the respondent had subsisting rights to mines and minerals products in the jagir villages so as to be saved under s 10 of the act. he urged that it would be for the collector acting under s 372 of the bombay land revenue code to decide the latter question in an inquiry initiated under that provision. according to learned counsel the mere circumstance that the respondent 's jagir was found under s 24. i to be proprietary was not tantamount to the establishment by the respondent of his rights to mines and mineral products in the villages of his jagir for which there must be an actual grant or contract or law or custom or usage recognising such rights and this could only be determined by the collector by holding an inquiry under s 372 of the bombay land revenue code and therefore the high court was clearly in error in coming to the conclusion that the inquiry initiated by the second appellant under s 372 of the bombay land revenue code was incompetent or without jurisdiction. on the other hand learned counsel for the respondent contended that a determination under s 2 4 i of the act that a particular jagir was a proprietary one necessarily implied that the grant was of soil and the grantee was entitled to mines and mineral products which were expressly saved under s 10 of the act and in any event on the facts obtaining in the instant case the competent authority acting under s 2 4 i of the act while coming to the conclusion that the respondent 's jagir was proprietary one bad relied upon the unqualified nature of the grant and also considered the evidence led before it touching upon the several rights such as right to sell fire wood babul trees saltrees timru trees right to sell agriculture land and house sites right to sell stones and gravel right to sell or allow use of land for manufacture of bricks enjoyed by the respondent since the time the grant had been made in his favour by the then ruler and it was on the basis of such evidence that tile competent authority had come to the conclusion that the respondent 's jagir was a proprietary one. he urged that having regard to such determination that was made by the competent authority under s 2 4 i of the act it would be clear that a further inquiry into the respondent 's rights to mines and mineral products particularly gravel and stones under s 372 of the code would be misconceived and incompetent. he pointed out that presumably pursuant to this determination the mamlatdar idar had passed an order on november 241959that the respondent 's right to stones and gravel in the two villages of kapoda and isarwada though not to mica had been recognised by the government and accordingly the necessary entry pertaining to respondent 's right to stones and gravel had been made in the relevant revenue records at least in the case of village kapoda and had been duly certified. he further urged that the two letters addressed by the respondent one to the collector on october 111968 and the other to the mamlatdar on october 41971merely contained a request to make appropriate entries in the revenue records based on the mamlatdar 's order dated november 241959 and therefore the collector could not pronounce upon those letters as containing a claim put forward by the respondent for the first time to mines and mineral products in the said jagir villages to initiate an inquiry under s 372 of the bombay land revenue de. according to the learned counsel for the respondent unless a claim to property or rights over property was made either by the state against any person or by any person against the state there could be no occasion for the collector to held an inquiry contemplated by s 372 of the code. he therefore urged that the high court was right in quashing the collector 's order dated february 231973. having regard to the rival contentions of the parties summarised above it will appear clear that really two questions one general and the other specific in the light of the facts obtaining in the instant case arise for our determination in this appeal. the general question is whether once the competent authority under s 2 4 i of the act declares that the particular jagir is a proprietary one a further inquiry under s 372 of the land revenue code with a view to determining whether the jagirdar had rights to mines and mineral products in such jagir subsisting on the appointed date is competent. the other specific question is whether in the facts of the case and having regard to the nature of evidence considered and the specific finding made by the competent authority while determining the question under s 24. ithe further inquiry initiated by the collector under s 372 was misconceived and uncalled for. dealing with the first question which is of a general character it is clear that the answer thereto depends upon the true scope and ambit of the inquiry under s 2 4 i of the act and to determine the same it will be necessary to consider the scheme and object of the act and in particular the purpose of the said inquiry. the enactment as its preamble will show has been put on the statute book with a view to abolishing jagirs of various kinds in the merged territories and merged areas in the state of bombay and to provide for matters consequential and incidental thereto. s 2 contains the definitions of various expressions some of which are material s 2vi defines the expression jagir as meaning the grant by or recognition as a grant by the ruling authority for the time being before the merger of a village whether such grant is of the soil or an assignment of land revenue or both there is also an inclusive part of definition with which we are not concerned. s 2vii defines jagirdar as meaning a holder of a jagir village and includes his co sharer. s 2xv defines nonproprietary jagir as meaning a jagir which consists of a right in the jagirdar to appropriate as incident of the jagir land revenue or rent due to government from persons holding land in a jagir village but which does not consist of any right or interest in the soil. s 2xviii defines proprietary jagir as meaning a jagir in respect of which the jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil. s 24though it forms part of a definition section contains a substantive provision which is material for our purposes and it runs thus 24. if any question arises. i whether a jagir is proprietary or non proprietary iiwhether any land is ghatked or jiwai or iiiwhetherany person is a permanent holder. the state government shall decide the question and such decision shall be final. provided that the state government may authorise any officer to decide questions arising under any of the subclausesiii and iii and subject to an appeal to the state government his decision shall be final. section 3which contains the main provision dealing with abolition of jagirs provides that notwithstanding anything contained in any usage grant sanad order agreement or any law for the time being in force on and from the appointed date which under s 2 1 i is a date on which the act comes into force which is august 11954all jagirs shall be deemed to have been abolished and save as expressly provided by or under the provisions of this act the right of a jagirdar to recover rent or assessment of land or to levy or recover any kind of tax cess fee charge or any hak and the right of reversion or lapse if any vested in a jagirdar and all other rights of a jagirdar or of any person legally subsisting on the said date in respect of a jagir village as incidents of jagir shall be deemed to have been extinguished. as a consequence of the abolition of jagirs under s 3 all jagir villages became unalienated villages and therefore under s 4 it has been provided that all jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the code and the rules made thereunder and the provisions of the code and the rules relating to unalienated land shall apply to such villages. ss 5 and 6 make provision as to what persons upon abolition of jagirs and conversion of jagir land into unalienated land would be occupants who shall be primarily liable to the state government for payment of land revenue. s 8 declares that all public roads lands paths bridges titches dikes and fences on or besides the same the bed of the sea and of harbours creeks below high water mark and of rivers streams nalaps lakes wells and tanks and all canals and water courses etc situated in jagir village shall vest in the state government and shall be deemed to be the property of the state government and all rights held by such jagirdars in such property shall be deemed to have been extinguished s 10 contains an express saving provision relating to rights to mines and mineral products and it provides that nothing in this act or any other law for the time being in force shall be deemed to affect the rights of any jagirdar subsisting on the appointed date to mines or mineral products in a jagir village granted or recognised under any contract. grant or law for the time being in force or by custom or usage. s 11 1 provides for the quantum of compensation payable to a non proprietary jagirdar on account of abolition of his jagir and extinguishment of his rights while s 112 makes similar provision for quantum of compensation to a proprietary jagirdar on account of the abolition of his jagir and extinguishment of his rights. ss 13 and 14 provide for methods of awarding compensations to jagirdars by the collector and against the awards of the collector under either of these provisions a appeal has been provided at the instance of the aggrieved party to the revenue tribunal under s 16 s 17 provides the procedure for disposal of appeals by the revenue tribunal while s 18 prescribes a period of limitation for preferring such appeals and s 20 gives finality to the award made by the collector subject to appeal to the revenue tribunal. the rest of the sections are if formal character and not material for our purposes. the aforesaid survey of the material provisions of the act will bring out two or three aspects very clearly. in the first place the preamble and s 3 of the act clearly show that the object of the enactment is to abolish jagirs of all kinds in the merged territories and merged areas in the state of bombay and to convert all jagir villages into unalienated villages liable to the payment of land revenue in accordance with the provisions of the bombay land revenue code. secondly compensation is made payable under s 11 of the act to jagirdars whose jagirs and other incidental rights have been extinguished but it will be pertinent to note that no provision has been made for payment of compensation in respect of rights to mines and mineral products in a jagir village obviously because if by the grant in question the jagirdar has not been given any rights to mines and mineral products no compensation would be payable and if there be a grant of mines and mineral products the same have been saved to the jagirdar under s 10 of the act. thirdly the quantum of compensation payable for abolition of jagir and extinguishment of his other rights depends upon what kind of jagir has been abolished whether it is proprietary or non proprietary in other words it is clear that the inquiry into the nature of the jagir under s 2 4 i is for the purpose of determining the quantum of compensation payable to a jagirdar inasmuch as in the case of a non proprietary jagir the jagirdar is entitled to compensation at the rate of three times the amount of land revenue received by or due to him as an incident of jagir during the five years immediately before the appointed date under s 11 1while in the case of a proprietary jagir in respect of land held by a permanent holder the jagirdar is entitled to compensation equivalent to three multiples of the assessment fixed for such land s 113 provides for compensation and computation thereof to a jagirdar having any right or interest in any property referred to in s 8 in such an inquiry ordinarily no determination of any rights of the jagirdar to mines or mineral products in a jagir village will be undertaken for no compensation is payable in respect of any rights to mines and mineral products in a jagir village. there is yet one more aspect emerging from the definition of the expression proprietary jagir which leads to the same inference. proprietary jagir has been defined in s 2xviii to mean a jagir in respect of which the jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil. in other words the competent authority holding an inquiry under s 24 i can come to the conclusion that a particular jagir is proprietary if it finds that the jagirdar under the terms of a grant or agreement is entitled to some rights or interest in the soil other than mines or mineral products. these aspects bring out true scope and ambit of the inquiry under sec 24i and clearly show that the determination of the question whether a jagir is proprietary or nonproprietary does not necessarily involve the determination of the question whether the jagirdar had any rights to mines and mineral products on the appointed date it is true that prima facie the owner of the surface of the land would be entitled to everything beneath the land and ordinarily mines and mineral products would pass with the right to the surface but this would be so in the absence of any reservations made in the grant if there be reservations or qualifications in regard to mines or mineral products in the grant then these would not pass. in this case also notwithstanding the alleged unqualified grant in favour of the respondent the mamladar 's order dated november 241959on which the respondent strongly relies has held that the rights to excavate mica were retained by the state and not granted to the respondent though the material or basis on which it is so held is not available on the record. it is therefore not possible to accept the contention of learned counsel for the respondents that a determination under s 2 4 i of the act to the effect that a particular jagir is a proprietary one necessarily implies that the grantee is entitled to mines and mineral products in the villages comprised in the grant especially when having regard to the definition given in s 2xviii a jagir could be proprietary without a right to mines and mineral products. in other words our answer to the general question raised above would be that even after the competent authority has declared a particular jagir to be a proprietary one under s 24. i of the act a further inquiry under s 372 of the bombay land revenue code into the question whether a jagirdar had any subsisting rights to mines and mineral products in the jagir villages on the appointed date would be competent unless the grant of a right to mines and mineral products or the actual enjoyment thereof in keeping with the grant happens to be the basis of the determination under s 2 4 1 of the act. turning to the other specific question raised by counsel for the respondent before us we are clearly of the view that in the facts and circumstances of the case the inquiry initiated by the collector under s 374 of the bombay land revenue code will have to be regarded as incompetent misconceived and uncalled for. the main valid objection to the said inquiry is that the condition precedent the existence of which canlead to the initiation of such inquiry is absent here. s 371 of the code contains the well known declaratory provision where under all public roads lanes and paths the bridges ditches dikes beds of the sea harbours and creeks below high water mark and of rivers streams nallas lakes and tanks etc and all lands wherever situated which are not the property of individuals are declared to be with all rights in or over the same or appertaining thereto the property of the crown then follows sub s 2 which is material and it runs thus 372. where any property or any right in or over any property is claimed by or on behalf of the crown or by any person as against the crown it shall be lawful for the collector or a survey officer after formal inquiry of which due notice has been given to pass an order deciding the claim. under sub s 3the decision of the collector under sub s 2 is rendered final subject to the result of a suit that is required to be instituted in a civil court within one year of the said. decision on a reading of sub s 2which we have quoted above it will appear clear that laying a claim to a property or any right in or over the property either by the state against an individual or by the individual against the state is a condition precedent to the collector 's power to hold an inquiry contemplated by that provision. in other words before the collector can initiate an inquiry under that provision either the state or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the collector whose decision subject to a civil suit filed within one year is rendered final. the question in the instant case is whether the respondent by making the two applications one dated october 111968 to the collector of sabarkantha and the other dated october 41971to the mamlatdar taluka idar could be said to have put forward or laid a claim to a right to excavate gravel and stone a particular mineral product so as to afford an occasion for the collector to initiate the inquiry. the material on record clearly shows that the respondent could not be said to have done so. admittedly by his previous order dated november 241959the mamlatdar of talukadar had declared that the respondent had been granted all the rights particularly the right to quarry and remove gravel and stones in isarwada and kapoda villages in the year 1947 by the idar stale and that thereafter in the years 1952 and 1953 the jagirdar had taken the produce of stone and that therefore the government could not stop him from taking out gravel and stones but that the rights to excavating mica had been retained by the state further pursuant to this order the appropriate entry had been made in the relevant village records form no 6 of village kapoda on june 181963recognising the respondents right to take out gravel and stones which entry was verified and confirmed on march 301965it was in this situation that the respondent made the aforesaid two applications one to the collector sabarkantha and the other to the mamladar taluka idar whereby relying upon the previous order of the mamlatdar dated november 241959he requested that appropriate entries pertaining to his right to gravel and stones should be similarly made in respect of village isarwada. it is thus clear that by these two applications the respondent had not put forward any claim as such to excavating gravel and stones for the first time but had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the state government previously. that being the position there was no occasion for the collector to initiate the inquiry under s 372 of the code in fact he had no jurisdiction to do so the condition precedent not being satisfied. moreover having regard to the statement made by counsel for the respondent before us it would be unfair to subject the respondent to the further inquiry under s 372 of the code. we may state that counsel for the respondent categorically stated before the court that his client was confining his right to excavating only one type of mineral product namely gravel and stones and that too from only two villages namely kapoda and isarwada comprised in his jagir in regard to which the mamlatdar 's order dated november 241959was quite clear and therefore he urged that the further inquiry under s 372 of the code into that very right was misconceived and uncalled for. we find considerable force in this contention. besides while determining the proprietary nature of the grant under s 241 of the act the competent authority had on evidence led before it alluded among others to the respondent 's right to excavate and sell gravel and stones and enjoyment thereof by the respondent. in these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under s 372 of the code so far as his right to excavating gravel and stones from the two villages of kapoda and isarwada is concerned. if and when he prefers a claim to this particular mineral productfrom other villages comprised in his grant or to the other mines ormineral products in all the villages including isarwada and kapodaan inquiry into such claim under s 372 could be held but even the decision at such inquiry would be subject to adjudication by a civil court in appropriate proceedings for the final pronouncement on such rights must as is clear from the scheme of the bombay land revenue code always rest with the civil court. in this view of the matter we feel that the high court was right in its final conclusion whereby it has quashed the inquiry initiated by the collecor under s 372 of the code and issued the necessary injunction prayed for by the respondent. the appeal is therefore dismissed with costs. appeal dismissed.

FACTS by hajur order the respondent was granted daljitgarh jagir comprising of 10 villages by the then ruler of idar; by another hajur order the respondent was given a further grant in jivarak of 3 villages, by yet another hajur order ,villages were granted in jivarak to the respondent by the ruler of idar in substitution of the villages mentioned in the previous two orders. according to the respondent by these grants read together he was given full proprietary rights in the soil of the said villages. admittedly,on the coming into force of the bombay merged territories and areas (jagirs abolition) act,1953 (hereinafter referred to as "the act") i.e.with effect from respondent's daljitgarh jagir stood abolished and all his rights in the jagir villages,save as expressly provided by or under the act,were extinguished and the respondent became entitled to compensation under s.11 of the act. according to the respondent since the entries made in the revenue records in respect of his rights to mines and mineral products were not sufficient and proper ,he by his application requested the collector to issue necessary orders to the,idar,to make appropriate entries regarding his rights in the minerals in village isarwada. thereupon a notice under s.37(2) of the bombay land revenue code for the purpose of holding an inquiry into the rights of the respondent to mines and mineral products of the said villages claimed by the respondent wag served upon him but the respondent raised a preliminary objection that such inquiry wag misconceived and incompetent in view of the determination made under s.2 (4) (i) of the act and having regard to the provisions of s.10 of the act-his rights,to mines and mineral products were expressly saved. the collector overruled the preliminary objection and directed that the inquiry shall proceed and the respondent was directed to produce his evidence in support of his claim on a fixed date. aggrieved by this order passed by the collector the respondent preferred a writ petition under art.227 of the constitution to the,gujarat high court and writ of certiorari quashing the order and a direction restraining the collector from further proceeding with the inquiry under s.37(2) of the land revenue code were sought. these reliefs sought by the respondent were resisted by the state of gujarat and the collector principally on the ground that the inquiry under s.37(2) of the land revenue code into the rights to mines and mineral products in the said villages claimed by the respondent was necessary and proper and could not be said to-be concluded by the determination made under s.2 (4) (1) of the act by the competent authority. the high court set aside the collector's order and further issued an injunction permanently restraining the state of gujarat and the collector from initiating any inquiry under s.37(2) in respect of the respondents rights to mines and mineral products in the said villages. the appellants seek to challenge the said judgment and order of the gujarat high court in this appeal. ARGUMENT learned counsel for the appellants has contended that the high court has adopted an erroneous view of the scope and ambit of the inquiry contemplated under s.2(4)(i) of the act by the competent authority. according to learned counsel the mere circumstance that the respondent's jagir was found under s.2(4. i) to be proprietary was not tantamount to the establishment by the respondent of his rights to mines and mineral products in the villages of his jagir for which there must be an actual grant or contract or law or custom or usage recognising such rights and this could only be determined by the collector by holding an inquiry under s.37(2) of the bombay land revenue code,and,therefore the high court was clearly in error in coming to the conclusion that the inquiry initiated by the second appellant under s.37(2) of the bombay land revenue code,was incompetent or without jurisdiction. on the other hand,learned counsel for the respondent contended that a determination under s.2 (4) (i) of the act that a particular jagir 'was a proprietary one necessarily implied that the grant was of soil and the grantee was entitled to mines and mineral products which were expressly saved under s.10 of the act and in any event on the facts obtaining in the instant case the competent authority acting under s.2 (4) (i) of the act,while coming to the conclusion that the respondent's jagir was proprietary one,bad relied upon the unqualified nature of the grant and also considered the evidence led before it touching upon the several rights. according to the learned counsel for the respondent unless a claim to property or rights over property was made either by the state against any person or by any person against the state,there could be no occasion for the collector to held an inquiry contemplated by s.37(2) of the code. he,therefore,urged that the high court was right in quashing the collector's order ISSUE the main question raised in this appeal by special leave at the instance of state,of gujarat and the collector against the gujarat high court's judgment allowing the writ petition of the respondent is whether once the competent authority under s.2(4) (i) of the bombay merged territories and areas (jagirs abolition. act,1953 declares that a particular jagir is a proprietary one, a further inquiry under s.37 (2) of the bombay land revenue code with a view to determining whether the jagirdar had any rights to mines or mineral products in his jagir granted or recognised under any contract,grant or law for the time being in force or by custom or usage is competent. the general question is whether once the competent authority under s.2 (4) (i) of the act declares that the particular jagir is a proprietary one a further inquiry under s.37(2) of the land revenue code with a view to determining whether the jagirdar had rights to mines and mineral products in such jagir subsisting on the appointed date is competent. the other specific question is whether in the facts of the case and having regard to the nature of evidence considered and the specific finding made by the competent authority while determining the question under s.2(4. i),the further inquiry initiated by the collector under s.37(2) was misconceived and uncalled for. ANALYSIS dealing with the first question which is of a general character,it is clear that the answer thereto depends upon the true scope and ambit of the inquiry under s.2 (4) (i) of the act and to determine the same it will be necessary to consider the scheme and object of the act and.in particular the purpose of the said inquiry. in the first place the,preamble and s.3 of the act clearly show that the object of the enactment is to abolish jagirs of all kinds in the merged territories and merged areas in the state of bombay and to convert all jagir villages into unalienated villages liable to the payment of land revenue in accordance with the provisions of the bombay land revenue code. secondly,compensation is made payable under s.11 of the act to jagirdars whose jagirs and other incidental rights have been extinguished but it will be pertinent to note that no provision has been made for payment of compensation in respect of rights to mines and mineral products in a jagir village,obviously because if by the grant in question the jagirdar has not been given any rights to mines and mineral products no compensation would be payable and if there be a grant of mines and mineral products the same have been saved "to the jagirdar under s.10 of the act. thirdly,the quantum of compensation payable for abolition of jagir and extinguishment of his other rights depends upon what kind of jagir has been abolished,whether it is proprietary or non-proprietary; in other words it is clear that the inquiry into the nature of the jagir under s.2 (4) (i) is for the purpose of determining the quantum of compensation payable to a jagirdar inasmuch as in the case of.a non-proprietary jagir the jagirdar is entitled to compensation at the rate of three times the amount of land revenue received by or due to him as an incident of jagir during the five years immediately before the appointed date under s.11 (1),while in the case of a proprietary jagir in respect of land held by a permanent holder the jagirdar is entitled to compensation equivalent to three multiples of the assessment fixed for such land; s.11(3) provides for compensation and computation thereof to a jagirdar having any right or interest in any property referred to in s.8.in such an inquiry ordinarily no determination of any rights of the jagirdar to mines or mineral products in a jagir village will be undertaken for' no compensation is payable in respect of any rights to mines and mineral products in a jagir village. there is yet one more aspect emerging from the definition of the expression "proprietary jagir" which leads to the same inference. "proprietary jagir" has been defined in s.2(xviii) to mean a jagir in respect of which the jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil. in other words,the competent authority holding an inquiry under s.2(4) (i) can come to the conclusion that a particular jagir is proprietary if it finds that the jagirdar under the terms of a grant or agreement is entitled to some rights or interest in the soil other than mines or mineral products. these aspects bring out true scope and ambit of the inquiry under sec.2(4)(i) and clearly show that the determination of the question whether a jagir is proprietary or nonproprietary does not necessarily involve the determination of the question whether the jagirdar had any rights to mines and mineral products on the appointed date. it is true that prima facie the owner of the surface of the land would be entitled to everything beneath the land and ordinarily mines and mineral products would pass with the right to the surface but this would be so in the absence of any reservations made in the grant; if there be reservations or qualifications in regard to mines or mineral products,in the grant,then these would not pass. in other words,before the collector can initiate an inquiry under that provision,either the state or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the collector whose decision,subject to a civil suit filed within one year,is rendered final. it is thus clear that by these two applications the respondent had not put forward any claim as such to excavating gravel and stones for the first time' but,had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the state government previously. that being the position,there was no occasion for the collector to initiate the inquiry under s.37(2) of the code-in fact,he had no jurisdiction to do so,the condition precedent not being satisfied. . besides,while determining the proprietary nature of the grant under s.2(4)(1) of the act the competent authority had,on evidence led before it,alluded among others to the respondent's right to excavate and sell gravel and stones and enjoyment thereof by the respondent. in these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under.s.37(2) of the code STATUTE s.2 of the bombay merged territories and areas (jagirs abolition. act,1953 contains the definitions of various expressions some of which are material. as a consequence of the,abolition of jagirs under s.3 all jagir villages became unalienated villages and,therefore,under s.4 it has been provided that all jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the code. s.5 and 6 make provision as to what persons,upon abolition of jagirs and conversion of jagir land into unalienated land would be occupants,who shall be primarily liable to the state government for payment of land revenue. s.10 contains an express saving provision relating to rights to mines and mineral products

FACTS by hajur order the respondent was granted daljitgarh jagir comprising of 10 villages by the then ruler of idar; by another hajur order the respondent was given a further grant in jivarak of 3 villages, by yet another hajur order ,villages were granted in jivarak to the respondent by the ruler of idar in substitution of the villages mentioned in the previous two orders. according to the respondent by these grants read together he was given full proprietary rights in the soil of the said villages. admittedly,on the coming into force of the bombay merged territories and areas (jagirs abolition) act,1953 (hereinafter referred to as "the act") i.e.with effect from respondent's daljitgarh jagir stood abolished and all his rights in the jagir villages,save as expressly provided by or under the act,were extinguished and the respondent became entitled to compensation under s.11 of the act. according to the respondent since the entries made in the revenue records in respect of his rights to mines and mineral products were not sufficient and proper ,he by his application requested the collector to issue necessary orders to the,idar,to make appropriate entries regarding his rights in the minerals in village isarwada. thereupon a notice under s.37(2) of the bombay land revenue code for the purpose of holding an inquiry into the rights of the respondent to mines and mineral products of the said villages claimed by the respondent wag served upon him but the respondent raised a preliminary objection that such inquiry wag misconceived and incompetent in view of the determination made under s.2 (4) (i) of the act and having regard to the provisions of s.10 of the act-his rights,to mines and mineral products were expressly saved. the collector overruled the preliminary objection and directed that the inquiry shall proceed and the respondent was directed to produce his evidence in support of his claim on a fixed date. aggrieved by this order passed by the collector the respondent preferred a writ petition under art.227 of the constitution to the,gujarat high court and writ of certiorari quashing the order and a direction restraining the collector from further proceeding with the inquiry under s.37(2) of the land revenue code were sought. these reliefs sought by the respondent were resisted by the state of gujarat and the collector principally on the ground that the inquiry under s.37(2) of the land revenue code into the rights to mines and mineral products in the said villages claimed by the respondent was necessary and proper and could not be said to-be concluded by the determination made under s.2 (4) (1) of the act by the competent authority. the high court set aside the collector's order and further issued an injunction permanently restraining the state of gujarat and the collector from initiating any inquiry. the appellants seek to challenge the said judgment and order of the gujarat high court in this appeal. ARGUMENT the high court has adopted an erroneous view of the scope and ambit of the inquiry contemplated under s.2(4)(i) of the act by the competent authority. the respondent's jagir was found under s.2(4. i) to be proprietary was not tantamount to the establishment by the respondent of his rights to mines and mineral products in the villages of his jagir for which there must be an actual grant or contract or law or custom or usage recognising such rights and this could only be determined by the collector by holding an inquiry under s.37(2) of the bombay land revenue code,and,therefore the high court was clearly in error in coming to the conclusion that the inquiry initiated by the second appellant under s.37(2) of the bombay land revenue code,was incompetent or without jurisdiction. unless a claim to property or rights over property was made either by the state against any person or by any person against the state,there could be no occasion for the collector to held an inquiry contemplated by s.37(2) of the code. ISSUE the main question raised in this appeal by special leave at the instance of state,of gujarat and the collector against the gujarat high court's judgment allowing the writ petition of the respondent is whether once the competent authority under s.2(4) (i) of the bombay merged territories and areas (jagirs abolition. act,1953 declares that a particular jagir is a proprietary one. the general question is whether once the competent authority under s.2 (4) (i) of the act declares that the particular jagir is a proprietary one a further inquiry under s.37(2) of the land revenue code with a view to determining whether the jagirdar had rights to mines and mineral products in such jagir subsisting on the appointed date is competent. the other specific question is whether in the facts of the case and having regard to the nature of evidence considered and the specific finding made by the competent authority while determining the question under s.2(4. i),the further inquiry initiated by the collector under s.37(2) was misconceived and uncalled for. ANALYSIS dealing with the first question,it is clear that the answer thereto depends upon the true scope and ambit of the inquiry under s.2 (4) (i) of the act and to determine the same it will be necessary to consider the scheme and object of the act and.in particular the purpose of the said inquiry. in the first place the,preamble and s.3 of the act clearly show that the object of the enactment is to abolish jagirs of all kinds in the merged territories and merged areas in the state of bombay and to convert all jagir villages into unalienated villages liable to the payment of land revenue in accordance with the provisions of the bombay land revenue code. secondly,compensation is made payable under s.11 of the act to jagirdars whose jagirs and other incidental rights have been extinguished but it will be pertinent to note that no provision has been made for payment of compensation in respect of rights to mines and mineral products in a jagir village,obviously because if by the grant in question the jagirdar has not been given any rights to mines and mineral products no compensation would be payable and if there be a grant of mines and mineral products the same have been saved "to the jagirdar under s.10 of the act. thirdly,the quantum of compensation payable for abolition of jagir and extinguishment of his other rights depends upon what kind of jagir has been abolished,whether it is proprietary or non-proprietary; in other words it is clear that the inquiry into the nature of the jagir under s.2 (4) (i) is for the purpose of determining the quantum of compensation payable to a jagirdar inasmuch as in the case of.a non-proprietary jagir the jagirdar is entitled to compensation at the rate of three times the amount of land revenue received by or due to him as an incident of jagir during the five years immediately before the appointed date under s.11 (1),while in the case of a proprietary jagir in respect of land held by a permanent holder the jagirdar is entitled to compensation equivalent to three multiples of the assessment fixed for such land; s.11(3) provides for compensation and computation thereof to a jagirdar having any right or interest in any property referred to in s.8.in such an inquiry ordinarily no determination of any rights of the jagirdar to mines or mineral products in a jagir village will be undertaken for' no compensation is payable in respect of any rights to mines and mineral products in a jagir village. there is yet one more aspect emerging from the definition of the expression "proprietary jagir" which leads to the same inference. "proprietary jagir" has been defined in s.2(xviii) to mean a jagir in respect of which the jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil. in other words,the competent authority holding an inquiry under s.2(4) (i) can come to the conclusion that a particular jagir is proprietary if it finds that the jagirdar under the terms of a grant or agreement is entitled to some rights or interest in the soil other than mines or mineral products. it is true that prima facie the owner of the surface of the land would be entitled to everything beneath the land and ordinarily mines and mineral products would pass with the right to the surface but this would be so in the absence of any reservations made in the grant; if there be reservations or qualifications in regard to mines or mineral products,in the grant,then these would not pass. in other words,before the collector can initiate an inquiry under that provision,either the state or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the collector whose decision,subject to a civil suit filed within one year,is rendered final. it is thus clear that by these two applications the respondent had not put forward any claim as such to excavating gravel and stones for the first time' but,had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the state government previously. that being the position,there was no occasion for the collector to initiate the inquiry under s.37(2) of the code-in fact,he had no jurisdiction to do so,the condition precedent not being satisfied. . besides,while determining the proprietary nature of the grant under s.2(4)(1) of the act the competent authority had,on evidence led before it,alluded among others to the respondent's right to excavate and sell gravel and stones and enjoyment thereof by the respondent. in these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under.s.37(2) of the code. STATUTE s.2 of the bombay merged territories and areas (jagirs abolition act,1953) contains the definitions of various expressions some of which are material. as a consequence of the,abolition of jagirs under s.3 all jagir villages became unalienated villages and,therefore,under s.4 it has been provided that all jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the code. s.5 and 6 make provision as to what persons,upon abolition of jagirs and conversion of jagir land into unalienated land would be occupants,who shall be primarily liable to the state government for payment of land revenue. s.10 contains an express saving provision relating to rights to mines and mineral products. s.11 (1) of the bombay merged territories and areas (jagirs abolition act,1953) provides for the quantum of compensation payable to a non-proprietary jagirdar on account of abolition of his jagir and extinguishment of his rights,while s.11(2) makes similar provision for quantum of compensation to a proprietary jagirdar on account of the abolition of 'his jagir and extinguishment of his rights.

this appeal by special leave which is directed against the judgment and order dated april 241974 of the letters patent bench of the high court of judicature at madras reversing the judgment and order dated april 191971 of the single judge of that court passed in writ petition no 3822 of 1969 presented u art 226 of the constitution raises a complex but an interesting question relating to the construction of the phrases maternity benefit for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day occurring in s 51 of the maternity benefits act1961. act liii of 1961 hereinafter referred to as the act which in view of s 21 of the act is the law applicable even to women workers employed in plantations. it appears that in october1967subbammal respondent no 2 herein who is a woman worker employed in mount stuart estate hereinafter referred to as the establishmentwhich is carrying on plantation industry was allowed leave of absence by the establishment on the basis of a notice given by her of her expected delivery which actually took place on december 161967 after her delivery the respondent was paid by her employers on account of maternity benefit an amount equivalent to what she would have earned on the basis of her average daily wage in 72 working days falling within twelve week 's of the maternity period. while calculating the aforesaid amount of maternity benefit the establishment admittedly excluded twelve sundays being wageless holidays which fell during the period of the respondent 's actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day. dissatisfied with this computation the respondent made a representation to her employers claiming maternity benefit for the entire period of twelve weeks under the act i e for 84 days on the plea that a week consisted of seven days. as her demand did not evoke a favourable response the respondent applied to the labour court coimbatore under section 33c2 of the industrial disputes act for redress of her grievance. the claim preferred by the respondent was resisted by the appellant herein who contended that the respondent was admittedly working and was being paid only for six days in a week and that a pregnant woman worker is entitled to maternity benefit for 72 days which are the normal working days in twelve weeks and not for 84 days as no wage is payable for the seventh day of the week i e sunday which is a nonworking wageless holiday. by its order dated february 261969the labour court allowed the claim of the respondent. thereupon the establishment moved the high court at madras u art 226 of the constitution challenging the decision of the labour court. contending that the claim made by the respondent was untenable as normally a worker works only for six days in a week and the maternity benefit had to be computed only for 72 days. as against this the respondent pleaded that the computation had to be made not with reference to the actual number of working days but with reference to total number of days covered by twelve weeks i e 84 days. the single judge of the high court to whom the case was assigned allowed the petition holding that twelve weeks for which maternity benefit is provided for in subs 3 of s 5 of the act must be taken to mean twelve weeks of work and the computation of the benefit had to be made with reference to the actual days on which the woman would have worked but for her inability. aggrieved by this decision the respondent filed an appeal u cl 15 of the letters patent which as already stated was allowed by the letters patent bench of the high court observing that the maternity benefit which the respondent was entitled to receive was for the period of her absence before delivery including the day of delivery and also six weeks thereafter each week consisting of seven days including sundays. dissatisfied with this decision the establishment has already stated come up in appeal to this court by special leave. we have heard mr pai learned counsel for the appellant as also mr bhatt who in view of the default in appearance of respondent no 2 and the importance of the point involved in the case was appointed as amicus cruaie. we place on record our deep appreciation of the valuable assistance rendered to us by both of them. assailing the judgment and order under appeal mr pai has urged that since legislative intent as revealed from the scheme of s 51 of the act is to compensate the woman worker who expects delivery for the loss that her forced absence from work on account of pregnancy and confinement may entail the liability which has to be imposed on her employer can not exceed the amount that she would have earned if she had not been compelled to avail of the maternity leave and since sunday is a non working wageless day the employer can not be made to pay for that day. he has further urged that since u s 5 1 of the act the maternity benefit has to be computed with reference to the period of the workers actual absence thereby meaning absence on days on which there was work excluding sundays and the term week in the context of sub ss 1 and 3 of s 5 of the act is to be under stood as a week of work consisting of six days and in the instant case respondent no 2 was working and earning wages for six days in a week the seventh day being a wageless holiday her claim can not be sustained. in support of his contention. mr pai has referred us to the full bench decision of the kerala high court in malayalam plantations ltd. cochin v. inspector of plantation mundakayam. 1975. i c 848 a i r 1975. ker 86 1974 indlaw ker 91and to convention no 103 concerning maternity protection convention revised1952 adopted by the general conference of the international labour organisation. bhatt has on the other hand urged that the scheme of s 5 of the act clearly indicates that a woman worker who expects delivery had to be paid maternity benefit for all the seven days of the week including sundays falling within the ante natal and post natal periods specified in the section. for a proper determination of the question involved in the appeal it would we think be useful to refer to certain provisions of the act which have a bearing on the subject matter of the controversy before us. s 21 of the act makes the act applicable to every establishment being a factory mine or plantation including any such establishment belonging to government and to every establishment wherein persons are employed for the exhibition of equastrain acrobatic and other performance. sub s 2 of s 2 of the act specifically excludes the applicability of the provisions of the act to any factory or other establishment to which the provisions of the employees state insurance act1948 apply for the time being s 3n of the act defines wages as under 3n wages means all remuneration paid or payable in cash to a woman if the terms of the contract of employment express or implied were fulfilled and includes 1 such cash allowances including dearness allowance and house rent allowance as a woman is for the time being entitled to. 2 incentive bonus and 3 the money value of the concessional supply of food grains and other articles but does not include. i any bonus other than incentive bonus ii over time earnings and any deduction or payment on account of fines iii any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force and iv any gratuity payable on the termination of service. the above definition it would be noted does not restrict the meaning of the term wages to contractual wages but gives the term a composite meaning covering all remunerations in the nature of cash allowances incentive bonus and the money value of the concessional supply of foodgrains and other articles. s 4 of the act which prohibits the employment of or work by woman during certain period lays down 4 employment of or work by woman prohibited during certain period 1 no employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her mis carriage. no woman shall work in any establishment during the six weeks immediately following the day of her delivery or miscarriage. 3 without prejudice to the provisions of section 6no pregnant woman shall on a request being made by her in this behalf be required by her employer to do during the period specified in sub s 4 any which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus or is likely to cause her miscarriage or otherwise to adversely affect her health. the period referred to in sub s 3 shall be a the period of one month immediately preceding the period of six weeks before the date of her expected delivery b any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6. s 5 of the act which confers right to payment of maternity benefit on a woman worker provisions. 5 right to payment of maternity. benefit 1subject to the provisions of this act every woman shall be entitled to and her employer shall be liable for the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day. explanation. for the purpose of this sub section the average daily wage means the average of the woman 's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity or one rupee a day whichever is higher. no woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery. provided that the qualifying period of one hundred and sixty days aforesaid shall not apply to a woman who has immigrated into the state of assam and was pregnant at the time of the immigration. for the purpose of calculating under this sub section the days on which a woman has actually worked in the establishment the days for which she has been laid off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account. the maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks that is to say six weeks up to and including the day of her delivery and six weeks immediately following that day. provided that where a woman dies during this period the maternity benefit shall be payable only for the days up to and including the day of her death. provided further that where a woman having delivered of a child dies during her delivery or during the period of six weeks immediately following the date of her delivery leaving behind in either case the child the employer shall be liable for the maternity benefit for the entire period of six weeks immediately following the day of her delivery but if the child also dies during the said period then for the days upto and including the day of the death of the child. s 6 of the act which deals with notice of claim for maternity benefit and payment thereof is to the following effect 6 notice of claim for maternity benefit and payment thereof. any woman employed in an establishment and entitled to maternity benefit under the provisions of this act may give notice in writing in such form as may be prescribed to her employer stating that her maternity benefit and any other amount to which she may be entitled under this act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit. in the case of a woman who is pregnant such notice shall state the date from which she will be absent from work not being a date earlier than six weeks from the date of her expected delivery. 3 any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. on receipt of the notice the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery. the amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant and the amount due for the subsequent period shall be paid by the employer to the woman within forty eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. 6 the failure to give notice under this section s not disentitle a woman to maternity benefit or any other amount under this act if she is otherwise entitled to such benefit or amount and in any such case an inspector may either of his own motion or on an application made to him by the woman order the payment of such benefit of amount within such period as may be specified in the order. the provisions of s 5 of the act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefit for a maximum period of twelve weeks which is split up into two periods viz prenatal and post natal. the first one i e prenatal or ante natal period is limited to the period of woman 's actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is postnatal compulsory period consists of six weeks immediately following the day of delivery. the benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage. according to the explanation appended to s 51 of the act the average daily wage has to be computed taking into consideration the average of the woman 's wager payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity or one rupee a day whichever is higher. for fixing the average daily wage it has therefore first to be ascertained whether the wages with were paid or were payable to the woman was for time work or for piece work. it has next to be ascertained as to what were the cash wages paid or payable to her in terms of the definition contained in s 3 n of the act for the days on which she worked during the period of three calendar months immediately preceding the date of delivery reckoned according to the british calendar month. the total wages thus worked out are to be divided by the number of days in the aforesaid three calendar months in order to arrive at the average daily wage. after thus finding out the average daily wage the liability of the employer in respect of the maternity benefit has to be calculated in terms of s 5 of the act for both ore natal and post natal period indicated above. the real though difficult question that calls for determination by us is as to what is the connotation of the term week occurring in sub ss 1 and 3 of s 5 of the act and whether the computation of the maternity benefit prescribed by the act for the a foresaid two periods has to be made taking a week as signifying a cycle of seven days including a sunday or a cycle of seven days minus a sunday which is said to be a wageless day as the act does not contain any definition of the word weekit has to be understood in its ordinary dictionary sense. in the shorter oxford english dictionary third editionthe word week has been described as meaning the cycle of seven days recognized in the calendar of the jews and thence adopted in the calendars of christian mohammedan and various other peoples. a space of seven days irrespective of the time from which it is reckoned. seven days as a term for periodical payments of wagerrent or the likeor as a unit of reckoning for time of work or service. in webster 's new world dictionary 1962 editionthe meaning of the word week is given as a period of seven days especially one beginning with sunday and ending with saturday the hours or days of work in a seven day period. in stroud 's judicial dictionary third editionit is stated that 1 though a week usually means any consecutive seven days it will sometimes be interpreted to mean the ordinary notion of a week reckoning from sunday to sunday and 2 probably a week usually means seven clear days. a week according to halsbury 's laws of england. third edi tion volume 37 at p 84 is strictly the time between midnight on saturday and the same hour on the next succeeding saturday but the term is also applied to any period of seven successive days. bearing in mind the above mentioned dictionary or popular meaning of the term. weekwe think that in the context of sub ss 1 and 3 of s 5 of the act the term has to be taken to signify a cycle of seven days including sundays. the language in which the aforesaid sub s s are couched also shows that the legislature intended that computation of maternity benefit is to be made for the entire period of the woman worker 's actual absence i e for all the days including sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding sundays falling within that period for if it were not so the legislature instead of using the words for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day would have used the words for the working days falling within the period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days. again the word period occurring in s 51 of the act is a strong word. it seems to emphasize in our judgment the continuous running of time and recurrence of the cycle of seven days. it has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislation like the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of art 42 of the constitution the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy nurse her child preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the court. the interpretation placed by us on the phraseology of sub ss 1 and 3 of s 5 of the act appears to us to be in conformity not only with the legislative intendment but also with paragraphs 1 and 2 of art 4 of convention no 103 concerning maternity protection convention. revised1952 adopted by the general conference of the international labour organisation which are extracted below for facility of reference art 4. 1 while absent from work on maternity leave in accordance with the provisions of art 3the woman shall be entitled to receive cash and medical benefits. 2 the rates of cash benefit shall be fixed by national laws or regulations so as to ensure benefit sufficient for the full and healthy maintenance of herself and her child in according with a suitable standard of living. thus we are of opinion that computation of maternity benefit has to be made for all the days including sundays and rest days which may be wageless holidays comprised in the actual period of absence of the woman extending upto six weeks preceding and including the day of delivery as also for all the days falling within the six weeks immediately following the day of delivery thereby ensuring that the woman worker gets for the said period not only the amount equalling 100 per cent of the wages which she was previously earning in terms of s 3 n of the act but also the benefit of the wages for all the sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the interests of both the woman worker and her employer. in view of what we have stated above we can not uphold the view of the law expressed by the full bench of kerala high court in malayalam plantations ltd inspector of plantations mundakayam ors 1974 indlaw ker 91 supra. in the result the appeal fails and is hereby dismissed. although costs have to be paid by appellant to respondent no 2 in terms of the court 's order dated october 301975yet in view of the fact that the said respondent has not chosen to appear at the hearing of the case and mr k n bhat has assisted the court as amicus curiae we direct the appellant to pay rs 1000 to mr bhat as his fee. appeal dismissed.

FACTS the respondent is a woman worker employed in mount stuart estate ('the establishment'),which is carrying on plantation industry, was allowed leave of absence by the establishment on the basis of a notice given by her of her expected delivery. after her delivery,the respondent was paid by her employers on account of maternity benefit an amount equivalent to what she would have earned on the basis of her average daily wage in 72 working days falling within twelve week's of the maternity period. while calculating the aforesaid amount of maternity benefit,the establishment admittedly excluded twelve sundays being wageless holidays,which fell during the period of the respondent's actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day. dissatisfied with this computation,the respondent made a representation to her employers claiming maternity benefit for the entire period of twelve weeks under the act.i.e.for 84 days on the plea that a week consisted of seven days. as her demand did not evoke a favourable response,the respondent applied to the labour court,coimbatore,u/s 33c(2) of the industrial disputes act for redress of her grievance. the claim preferred by the respondent was resisted by the appellant herein who contended that the respondent was admittedly working and was being paid only for six days in a week and that a pregnant woman worker is entitled to maternity benefit for 72 days which are the normal working days in twelve weeks and not for 84 days,as no wage is payable for the seventh day of the week i.e.sunday,which is a nonworking wageless holiday. the labour court allowed the claim of the respondent. thereupon the establishment moved the high court at madras u/art.226 of the constitution challenging the,decision of the labour court contending that the claim made by the respondent was untenable as normally a worker works only for six days in a week and the maternity benefit had to be computed only for 72 days. the high court allowed the petition holding that twelve weeks for which maternity benefit is provided for in subs.(3) of s.5 of the act must be taken to mean twelve weeks of work and the computation of the benefit had to be made with reference to the actual days on which the woman would have worked but for her inability. aggrieved by this decision,the respondent filed an appeal to this court. ARGUMENT since u/s.5 (1) of the act,the maternity benefit has to be computed with reference to the period of the workers' actual absence thereby meaning absence on days on which there was work excluding sundays and the term 'week" in the context of 'sub-ss.(1) and (3) of s.5 of the act is to be under stood as a week of work consisting of six days and in the instant case,respondent no.2 was working and earning wages for six days in a week,the seventh day being a wageless holiday,her claim cannot be sustained. in support of his contention.mr.pai has referred us to the full bench decision of the kerala high court in malayalam plantations ltd.cochin v.inspector of plantation mundakayam & ors.,(1975) lab.i.c.848=a.i.r.1975 ker.86 1974 indlaw ker 91,and to convention no.103 concerning maternity protection convention (revised),1952 adopted by the general conference of the international labour organisation. the scheme of s.5 of the act clearly indicates that a woman worker who expects delivery had to be paid maternity benefit for all the seven days of the week including sundays falling within the ante-natal and post-natal periods specified in the section. ISSUE the real question is as to what is the connotation of the term "week" occurring in sub-ss.(1) and (3) of s.5 of the maternity benefits act, 1961 and whether the computation of the maternity benefit prescribed by the act for the a foresaid two periods has to be made taking a "week" as signifying a cycle of seven days including a sunday or a cycle of seven days minus a sunday which is said to be a wageless day, as the act does not contain any definition of the word "week". ANALYSIS the provisions of s.5 of the act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefit for a maximum period of twelve weeks which is split up into two periods viz.prenatal and post-natal. the first one i.e.prenatal or ante-natal period is limited to the period of woman's actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is postnatal compulsory period consists of six weeks immediately following the day of delivery. the benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage. according to the explanation appended to s.5(1) of the act,the average daily wage has to be computed taking into consideration the average of the woman's wager, payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity,or one rupee a day,whichever is higher. for fixing the average daily wage,it has therefore first to be ascertained whether the wages with were paid or were payable to the woman was for 'time work' or for 'piece work'. it has next to be ascertained as to what were the cash wages paid or payable to her in terms of the definition contained in s.3 (n) of the act for the days on which she worked during the period of three-calendar months immediately preceding the date of delivery,reckoned according to the british calendar month. the total wages thus worked out are to be divided by the number of days in the aforesaid three calendar months in order to arrive at the average daily wage. after thus finding out the average daily wage,the liability of the employer in respect of the maternity benefit has to be calculated in terms of s.5 of the act for both ore-natal and post-natal period indicated above. STATUTE s.2(1) of the maternity benefit act is applicable to every establishment being a factory, mine or plantation . section 2(2) of the act specifically excludes the applicability of the provisions of the act to any factory or other establishment to which the provisions of the employees state insurance act,1948 apply for the time being. s.3(n) of the act defines "wages" as under :- "3(n).--wages means all remuneration paid or payable in cash to a woman,if the terms of the contract of employment,express or implied,were fulfilled and includes- (1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to; (2) incentive bonus; and (3) the money value of the concessional supply of food-grains and other articles,but does not include- (i) any bonus other than incentive bonus; (ii) over-time earnings and any deduction or payment on account of fines; (iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and (iv) any gratuity payable on the termination of service". s.5 of the act:-right to payment of maternity benefit.-(1)subject to the provisions of this act,every woman shall be entitled to,and her employer shall be liable for,the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day. s.6 of the act- notice of claim for maternity benefit and payment thereof.

FACTS the respondent is a woman worker employed in mount stuart estate ('the establishment'),which is carrying on plantation industry, was allowed leave of absence by the establishment on the basis of a notice given by her of her expected delivery. after her delivery,the respondent was paid by her employers on account of maternity benefit an amount equivalent to what she would have earned on the basis of her average daily wage in 72 working days falling within twelve week's of the maternity period. while calculating the aforesaid amount of maternity benefit,the establishment admittedly excluded twelve sundays being wageless holidays,which fell during the period of the respondent's actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day. dissatisfied with this computation,the respondent made a representation to her employers claiming maternity benefit for the entire period of twelve weeks under the act.i.e.for 84 days on the plea that a week consisted of seven days. as her demand did not evoke a favourable response,the respondent applied to the labour court,coimbatore,u/s 33c(2) of the industrial disputes act for redress of her grievance. the claim preferred by the respondent was resisted by the appellant herein who contended that the respondent was admittedly working and was being paid only for six days in a week and that a pregnant woman worker is entitled to maternity benefit for 72 days which are the normal working days in twelve weeks and not for 84 days,as no wage is payable for the seventh day of the week i.e.sunday,which is a nonworking wageless holiday. the labour court allowed the claim of the respondent. thereupon the establishment moved the high court at madras u/art.226 of the constitution challenging the,decision of the labour court contending that the claim made by the respondent was untenable as normally a worker works only for six days in a week and the maternity benefit had to be computed only for 72 days. as against this, the respondent pleaded that the computation had to be made not with reference to the actual number of working days but with reference to total number of days covered by twelve weeks i.e.84 days. the high court allowed the petition holding that twelve weeks for which maternity benefit is provided for in subs.(3) of s.5 of the act must be taken to mean twelve weeks of work and the computation of the benefit had to be made with reference to the actual days on which the woman would have worked but for her inability. aggrieved by this decision,the respondent filed an appeal to this court. ARGUMENT since u/s.5 (1) of the act,the maternity benefit has to be computed with reference to the period of the workers' actual absence thereby meaning absence on days on which there was work excluding sundays and the term 'week" in the context of 'sub-ss.(1) and (3) of s.5 of the act is to be under stood as a week of work consisting of six days and in the instant case,respondent no.2 was working and earning wages for six days in a week,the seventh day being a wageless holiday,her claim cannot be sustained. in support of his contention.mr.pai has referred us to the full bench decision of the kerala high court in malayalam plantations ltd.cochin v.inspector of plantation mundakayam & ors.,(1975) lab.i.c.848=a.i.r.1975 ker.86 1974 indlaw ker 91,and to convention no.103 concerning maternity protection convention (revised),1952 adopted by the general conference of the international labour organisation. the scheme of s.5 of the act clearly indicates that a woman worker who expects delivery had to be paid maternity benefit for all the seven days of the week including sundays falling within the ante-natal and post-natal periods specified in the section. ISSUE the real question is as to what is the connotation of the term "week" occurring in sub-ss.(1) and (3) of s.5 of the maternity benefits act, 1961 and whether the computation of the maternity benefit prescribed by the act for the a foresaid two periods has to be made taking a "week" as signifying a cycle of seven days including a sunday or a cycle of seven days minus a sunday which is said to be a wageless day, as the act does not contain any definition of the word "week". ANALYSIS the provisions of s.5 of the act quoted above make it clear that a woman worker who expects a child is entitled to maternity benefit for a maximum period of twelve weeks which is split up into two periods viz.prenatal and post-natal. the first one i.e.prenatal or ante-natal period is limited to the period of woman's actual absence extending upto six weeks immediately preceding and including the day on which her delivery occurs and the second one which is postnatal compulsory period consists of six weeks immediately following the day of delivery. the benefit has to be calculated for the aforesaid two periods on the basis of the average daily wage. according to the explanation appended to s.5(1) of the act,the average daily wage has to be computed taking into consideration the average of the woman's wager, payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity,or one rupee a day,whichever is higher. for fixing the average daily wage,it has therefore first to be ascertained whether the wages with were paid or were payable to the woman was for 'time work' or for 'piece work'. it has next to be ascertained as to what were the cash wages paid or payable to her in terms of the definition contained in s.3 (n) of the act for the days on which she worked during the period of three-calendar months immediately preceding the date of delivery,reckoned according to the british calendar month. the total wages thus worked out are to be divided by the number of days in the aforesaid three calendar months in order to arrive at the average daily wage. after thus finding out the average daily wage,the liability of the employer in respect of the maternity benefit has to be calculated in terms of s.5 of the act for both ore-natal and post-natal period indicated above. STATUTE s.2(1) of the act is applicable to every establishment being a factory, mine or plantation . section 2(2) of the act specifically excludes the applicability of the provisions of the act to any factory or other establishment to which the provisions of the employees state insurance act,1948 apply for the time being. s.3(n) of the act defines "wages" as under :- "3(n).--wages means all remuneration paid or payable in cash to a woman,if the terms of the contract of employment,express or implied,were fulfilled and includes- (1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to; (2) incentive bonus; and (3) the money value of the concessional supply of food-grains and other articles,but does not include- (i) any bonus other than incentive bonus; (ii) over-time earnings and any deduction or payment on account of fines; (iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and (iv) any gratuity payable on the termination of service". s.5 of the act:-right to payment of maternity benefit.-(1)subject to the provisions of this act,every woman shall be entitled to,and her employer shall be liable for,the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day. s.6 of the act- notice of claim for maternity benefit and payment thereof.

this appeal is by special leave against the judgment and decree of the high court of kerala which dismissed an appeal against the judgment and decree of the subordinate court of havelikkara. the appellant had filed a suit on october 24 1942 for the recovery of rs 2 lakhs and interest thereon from the date of suit and for costs originally against the state of travancore now the state of kerala the respondent and three others who however were not made parties in the appeal before the high court. it has alleged in the plaint that the plaintiff appellant was wrongfully dispossessed from 160 acres of land along with the improvements which had been effected by him and as the state had appropriated those improvements without any right or title thereto he claimed the value of those improvements. it was the appellant 's case that he had been in occupation of the said 160 acres of cherikkal land unregistered dry lands in hilly tracts about which and the adjoining lands there was a dispute as to whether the same belonged to a jenmi family known as koodalvalli illom hereinafter called the illom or to the government of the erstwhile travancore state. the appellant 's father and the appellant had occupied these lands made improvement thereon by planting coconut trees arecanut palms peppervines rubber trees jack trees other trees and by constructing bungalow huts wells etc. in the bona fide belief that the lands belonged to the illom. it was stated that according to the practice prevailing in the erstwhile state of travancore the cultivators could enter into unoccupied waste lands belonging to the janmies with the object of cultivating and improving them and as they held the lands under them by paying rent the consent of the jemies to such occupation was implied. this practice it seems was also current in respect of lands belonging to the government before the travancore land conservancy act 4 of 1091 24 7 1916 hereinafter called the act. it is the case of the appellant that even after the act was passed unauthorised occupants of land belonging to the government who had made improvements therein had under the rules made both under the act and the land assignment act a preferential claim over others for getting kuthakapattom or assignment of the property in their possession. it may be mentioned that in respect of the 160 acres of land of the illom which were occupied by the appellant 's father and the appellant there was a dispute between the illom and the travancore state from about 1848. while this dispute was pending it appears the appellant applied to the conservator of forests for registration of the lands in his name but the application was rejected on june 14 1919 stating that the land applied for can not be registered ext. a while the application for registration was pending the dispute between the illom and the state of travancore had reached a stage when the illom had to institute a suit o section No. 126 of 1096. january 1918 in the district court at quilon for a declaration of its title to those properties. in that suit the appellant after his application for registration was rejected sought to get himself impleaded but that application also was rejected. thereafter the suit filed by the illom was dismissed on 28 6 1109 february 10 1934. an appeal against it was dismissed on september 27 1943. it may here be mentioned that while the suit of the illom i e o s No 126 of 1096 m e was pending in the district court quilon the government of travancore had initiated proceedings in ejectment against the appellant by l c case. 112 of 1100 1925 a d as the suit of the illom had been finally disposed of and the title of the illom to the lands was not established the appellant apprehending that he might be ejected in the above l c case filed a suit. o s 156 of 1103 m e 1927 28 a d in the district court at quilon against the respondent to establish his right and title to the said 160 acres and in the adjoining cherikkal lands in his possession. in that suit an injunction was prayed for in respect of 100 acres of the property involved in the suit but the prayer was rejected. against that order a civil miscellaneous appeal No 206 of 1110 m e 1934 35 a d was filed in the high court of travancore. the high court issued a commission for inspecting the properties and the commissioner in his report part 13 of ext. cc set out the improvements made by the appellant on the lands which comprised of a bungalow in which the appellant was residing a number of small houses. a rubbers state and a large number of other valuable trees like jack trees mango trees coconut trees etc. it appears that as there was no injunction restraining his dispossession in l c case. 112 of 11 00 m e an order was passed for dispossessing the appellant on july 24 1939 ext. the appellant pursuant to this order was dispossessed from the lands and possession of these lands was given to the second defendant nair service society ltd in august 1939. thereafter the suit out of which this appeal arises was filed against the government on october 24 1942. the respondent state contended that the appellant encroached on the suit lands that proceedings were taken against him in l c case. 112 of 11 00 m e and he was evicted in due course that the trespass by the appellant was of recent origin that the allegation that the entry was made in the belief that the land belonged to the illom was false that the revenue and forest departments did not harass the appellant but they took steps for dispossessing him only in accordance with the law that the commissioner 's report was not correct in that all the improvements noted by the commissioner were not made by the appellant but by other independent squatters that after due notice an order of forfeiture had been passed in l c case. 112 of 1100 m e and the appellant was therefore not entitled to claim any value for improvements as it was his duty to remove any building before he was evicted. the respondent also averred that it had not taken possession of any crops or movables as stated in the plaint and that the movables found in the building were attached for the realisation of arrears of fine etc. there were other allegations also but it is unnecessary for purposes of this appeal to refer to them. several issues were framed but it is not necessary to refer to them except to say that the suit was decreed only for rs 3000 being the value of the appellant 's bungalow taken possession of by the respondent. the rest of the claim was dismissed. it was observed by the trial court that though there is no specific evidence to show when exactly the possession of the appellant had commenced the evidence however indicated that it must have started close to the year i 100 m e and that in any case the claim of the appellant that possession was from 1030 m e was not true inasmuch as from the year 1067 m e when the act was passed possession without permission was penal and it could not be imagined that the appellant was left in peace for all these long years. the trial court also held that all through these long years there had been a dispute as to the title between the illom and the state and after the suit of the illom was dismissed and the illom 's title was not sustained the allegation that the improvements were effected can not be stated to be bona fide. it pointed out that the plaintiff appellant had applied to get himself impleaded on 0 s No 126 of 1096 m e but his application was rejected and after that suit was dismissed the appellant again applied for registry but that was also rejected. all this according to the trial court would show that the appellant was aware that he was remaining on government lands without title. it was further held that the greater part of the improvements were affected by the appellant after the proceedings in the l c case No 112 of 1100 m e were stayed as such it can not be said that these improvements could have been effected in good faith. with respect to the allegation that an order of forfeiture was not served on the appellant under section 9 of the act the court observed that though the state had in its written statement contended that such an order had been passed no order was produced in evidence and consequently it was conceded by the government pleader that no such order was passed. in the circumstances the question that had to be considered was whether without an order of forfeiture being passed the respondent could forfeit the improvements. on this issue it was held that no notice of forfeiture of trees. need be given under section 9 of the act and therefore no compensation or damages were payable in respect thereof. the high court accepted the finding of the trial court on issue. it observed that the evidence in the case indicated that the possession of the father of the appellant must have commenced close to the year 1100 m e and consequently the claim of the appellant that lie was in possession from 1030 m e can not be true. it then said if the possession commenced only about the year 1100 it certainly can not be under any bona fide claim of title for even on. 12 6 1094 the petitioner knew that the land was government land and had then applied for assignment of the land. accordingly the high court found that at no time the occupation of the land by the appellant was under a bona fide claim of title. the contention of the appellant that the trees which are the subject matter of the appeal should have been forfeited by an order passed under section 9 of the act and in the absence of such. an order his right to the value of those trees had to be adjudged and paid. to him was also negatived as the court held that the words any crop or other product raised on the land occurring in section 9 of the act would not include trees. in its view these words take in what is familiarly known in law as emblements which according to black 's. law dictionary mean such products of the soil as are annually planted served and saved by manual labour as cereals vegetables grass maturing for harvest or harvested etc but not grass on lands used for pasturage. in this view it held that compensation for trees which are to be dealt with under the general law can not be decreed in favour of a mere trespasser who had no rights therein. it was also of the view that the claim for compensation for trees which has to be dealt with under the general law under which a mere trespasser would have no rights to the payment of compensation nor could be. appellant be allowed to remove them after his dispossession. another reason for disallowing the compensation for trees given by the high court was that the position of a trespasser whether he be a mere trespasser or a trespasser under a bona fide claim of title cannot be better than that of a tenant and that if this is correct then the appeal has to be dismissed on the short ground that there is no principle of law or equity which requires the payment of compensation in respect of trees the ownership of which was all along or at any rate from the dale of the trespasser 's dispossession vested in the state. the learned advocate for the appellant has reiterated the submissions made before the trial court and the high court and contends that there is no order forfeiting the improvements as required under section 9 of the act and if section 9 does not apply and there is no right of forfeiture as contemplated under section 9 then the appellant is entitled to compensation under the general law. apart from this contention towards the end of his argument the learned advocate for the appellant sought to make out a fresh case namely that as the appellant was not served with a notice to quit as required under section 9 of the act but was forcibly evicted without giving him an opportunity of cutting and taking away the trees etc. from the lands from which he was evicted he would be entitled to claim compensation for the improvements made by him. it may be stated that the finding that the possession of the appellant commenced after his application for registration was rejected in 1919 and the improvements if any must have been effected only thereafter with full knowledge that the title to the lands was in dispute between the illom and the government is unassailable. we have earlier adverted to ext. a and also to the fact that after the application for registration was rejected the appellant tried to get himself impleaded in the suit filed by the illom against the state which application was also rejected and so the claim that his possession was bona fide or that he was a bona fide trespasser has no validity. this finding is fortified by section 5 of the act which provides that from and after the commencement of the act it shall not be lawful for any person to occupy land which is the property of the government whether poramboke or not without the permission from the government or such officer of the government as may be empowered in that behalf. in view of this specific provision the contravention of which is punishable under section 6 thereof his conduct in applying for registration and for getting himself impleaded in the suit of the illom against the government would show that he knew that the land was government land or land in which the government had a claim. in these circumstances he can not be said to be a bona fide trespasser particularly after he had applied to the government for obtaining a. registration in his name on the basis that it was government land. it is however urged before us that the high court was in error in thinking that the appellant did not occupy the lands as a trespasser with a bona fide claim of title because it was his case that he trespassed upon the land with a bona fide intention to improve the land and as such he can still be considered as a bona fide trespasser entitled to improvements under the general law. before dealing with this aspect we will first consider the question whether trees are included within the meaning of section 9 so as to entitle the appellant to a notice of forfeiture there under. section 9 of the act is in the following terms any person unauthorised occupying any land for which he is liable to pay a fine under section 6 and an assessment or prohibitory assessment under section 7 may be summarily evicted by the division peishkar and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also if not removed by him after such written notice as the division peishkar may deem reasonable be liable to forfeiture. forfeiture under this section shall be disposed of as the division peishkar may direct. an eviction under this section shall be made in the following manner namely by serving a notice on a person reported to be in occupation or his agent requir ing him within such time as the division peishkar may deem reasonable after receipt of the said notice to vacate the land and if such notice is not obeyed by removing or deputing a subordinate to remove any person who may refuse to vacate the same and if the officer removing any such person shall be resisted or obstructed by any person the division peishkar shall hold a summary enquiry into the facts of the case and if satisfied that the resistance or obstruction still continues may issue a warrant for the arrest of the said person and on his appearance may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 176 179 and 181 of the travancore penal code in respect of the same facts. this section provides for two notices to be given one notice is to be given to the person who is in unauthorised occupation of government land to vacate the land within a reasonable time and the other notice is to forfeit any crop or other product raised on the land or to remove any building or other structure erected or anything deposited therein within a reasonable time as may be stated in the notice. it was conceded before the trial court and no attempt was made to establish anything to the contrary before the high court that no notice of forfeiture as required under section 9 was given to the appellant. in these circumstances the question that would arise for determination is whether the trees come within the description of other product raised on the land. it is stated before us that at the time when the appellant was evicted the transfer of property act was not in force. but this is not relevant as what has to be considered is whether trees can be said to be other product raised on the land. the words raised on the land qualify both the crop and other product so the words other product have to be read in the context of the word crop which precedes it. it was pointed out by the learned advocate that the high court was in error in equating other product raised on the land with emblements because the definition of crop in black 's law dictionary does include emblements as such the words other product can not also be treated as emblements and must therefore be given a different meaning which according to him would include trees. no doubt one of the meanings given in the black 's law dictionary does say that in a more restricted sense the word is synonymous with fructus industrials. but the meaning to be ascribed to that word is that it connotes in its larger signification products of the soil that are grown and raised yearly and are gathered during a single season. in this sense the term includes fructus industrials and having regard to the etymology of the word it has been held to mean only products after they have been severed from the soil. the same dictionary gives the meaning of the word product as follows product with reference to property proceeds. yield income receipts return. the products of a farm may include the increase of cattle on the premises. even under this definition product can not mean anything which is attached to the land like trees. it may however include the fruit of the trees. this view of ours is supported by the case of clark and another v gaskarth 8 taunt 431. that was a case of a trespass for breaking and entering the closes of the plaintiffs and tearing up digging up cutting down and carrying away the plaintiff 's trees plants roots and seeds growing on the closes. notice of this trespass was given to the defendant. at the time of the distress the sum of pound 281 6 section was due from the plaintiffs to the defendant for rent in respect of the nursery ground. the question before the court was whether the plaintiffs were entitled to recover against the defendant damages caused to them by cutting down and carrying away the plaintiffs trees. it was contended that the defendant 's action was justified under the statute ii g 2 c 19 section 8 which after enumerating certain crops empowered the landlord to seize as a distress any other product whatsoever which shall be growing on any part of the estate demised and therefore the trees and shrubs in question came within that description. the court rejected the contention that the trees and shrubs could be detrained and held that the word product in the eighth section of the statute did not extend to trees and shrubs growing in a nurseryman 's ground but that it was confined to products of a similar nature. with those specified in that section to all of which the process of becoming ripe and of being cut gathered made and laid up when ripe was incidental. in our view therefore trees are not included within the meaning of other products raised on the land in section 9 of the act and there is therefore no obligation on the government to give notice of forfeiture under that section. it is then contended that even if trees are not included in section 9 and no notice of forfeiture is necessary under the general law even a trespasser on the land whether bona fide or not is entitled to compensation or damages for the improvements made by him on the land. we have already agreed with the trial court and the high court that the appellant was not a bona fide trespasser. but the learned advocate for the appellant submits that it was not his case nor is it under the general law necessary for a person who trespassed on the land to trespass with a claim of bona fide title. according to his submission a person is nevertheless a bona fide trespasser if he enters upon the land with a bona fide intention of improving the land. no authority has been cited for this novel proposition and if accepted it would give validity to a dangerous principle which will condone all acts of deliberate and wrongful trespass because any person desparate enough to trespass on other mans land without any claim of title can always plead that he had a bona fide intention of improving the land whether the owner of that land wants that improvement or not. this vicarious and altruistic exhibition of good intention may even cause damage to the land of an owner who may not want improvements of such a kind as tree plantation. it is true that the maxim of the english law quicquid plantatur solo solo cedit i e whatever is affixed to the soil belongs to the soil is. not applicable in india but that is not to say that a wrongful trespasser can plant trees on someone else 's land and claim a right to those trees after he is evicted. the case of vallabdas narainji v development officer bandra a i r 1929. p c 163 1929 indlaw pc 11 which was cited by the learned counsel for the appellant does not assist him for the privy council did not think it necessary to give a decision on what it termed to be a far reaching contention. that was a case in which the government had taken possession of the lands and had erected certain building on the land before a decision under section 6 of the land acquisition act was made as to the appellant 's property arid it was contended that the appellant should be allowed the value of the land in the state in which it then was i e with buildings on it. it appears that the government had resolved to acquire the land in question and other lands and by arrangement with certain of the sutidars it took possession of such land including a portion which was in the occupation of the appellant. upon such land including a portion in the possession of the appellant they proceeded to erect buildings without the necessary notification under section 6 of the land acquisition act which was not served until november 4 1920. on these findings it was observed that the government were in a position by law at any rate to regularize their possession by such a notification a fact which becomes material when it has to be considered what the nature of the trespass is. both the assistant judge and the high court negatived the claim of the appellant. before the privy council it was contended on behalf of the appellant that in the various cases relied upon there was at least some genuine claim or belief in the party erecting the buildings that he had a title to do so even though he was eventually held to be a trespasser and it was urged that no such claim or belief existed in that case in which it was said the government without any pretence of a right tortuously invaded the appellant 's property and proceeded to deal with it as their own. it is in this context that the respondent 's contention that even if the appellants were considered to be mere trespassers they would still be entitled to the value of the improvements and contest the claim of the appellant was described as already stated as a far reaching contention. the board however agreed with what was apparently the view of both courts in india that under the circumstances of this case as already set forth by the law of india which they appear to have correctly interpreted the government officials were in possession not as mere trespassers but under such a colour of title that the buildings erected by them on the land ought not to be included in the valuation as having become the property of the landowner. this case does not support the contention that a mere trespasser who has deliberately and wrongfully contrary to the provisions of section 5 of the act entered upon another 's land which makes such an act even punishable under section 6 thereof is entitled to compensation for the trees planted by him on the land. in any case as the high court rightly observed the position of a trespasser can not be better than that of a lawful tenant who having lost his possession can not claim compensation or damages for anything erected on the land or any improvements made therein. the appellant 's claim after he was evicted can not on the same parity of reasoning be held to be valid. once the appellant 's counsel was confronted i with this proposition he tried to raise an entirely new point namely that no notice of eviction was given to the appellant and if such a notice had been given to him under section 9 he would have cut the trees and taken them away within the time allowed for him to vacate the lands. in support of this contention he has referred us to the leadings contained in paragraph 3 of the plaint in which it is stated the improvements effected by the plaintiff have a value of rs 2 lakhs as per the accounts shown below. in his helplessness the plaintiff had even applied to government to give him the land in which he had effected improvements on kuthakapattom. but out of the said land 160 acres were taken out of my possession and given to the 2nd defendant even without giving me the opportunity to remove the movable improvements such as cultivation cattle machines utensils houses stocked crops ripe crops etc belonging to me. these averments in the above paragraph do not clearly allege that he was not evicted without notice nor has any allegation been made that he was forcibly evicted from the lands with the help of the police etc. as it has now been contended before us. on the other hand what the plaintiff appellant stated shows that no opportunity was given to him to remove the movable improvements such as cultivation cattle machines utensils houses stocked crops ripe crops etc. which belonged to him. there is nothing stated by him that he had no opportunity to cut trees and take them away. even in paragraph 4 of the plaint where he complains that no notice of forfeiture was given to him he mentions only the items referred to in paragraph 3. it is in this connection he says that no legal procedure had been followed by government for taking them into possession which only implies that it is in respect of the items mentioned in paragraph 3. it is again stated in paragraph 4 that it was irregular on the part of government to take possession of the above items. the respondent did not understand the averments in the plaint as alleging that no notice to quit was given to him is evident from the written statement of the respondent in paragraph where it is stated thus. this defendant submits that after due notice an order of forfeiture has been passed in poramboke case 112 of 11 00 and the plaintiff is therefore not entitled to claim any value of improvements or value of any building. the issues that had been famed by the trial court also do not refer to this aspect. no doubt in the evidence of the plaintiff p w 1 states that he was evicted from the lands without giving him an opportunity to remove the improvements and in cross examination he was asked whether he was not given any notice prior to the dispossession and he said that certainly no notice was received. p w 4 the manager was asked in cross examination whether he had been given any priorinformation or notice about eviction and this witness also said that there was no prior information or notice. while these passages might show that no notice of eviction was given even at that stage there was no application for an issue being framed nor has such an application been made in the appeal before the high court nor even before this court. in it has been held that the appellant was not a mere trespasser and had deliberately entered upon the lands knowing full well that he had no right claim or title to the lands or had in any manner a right to enter the land and has been rightly evicted as a trespasser he can not now be permitted to raise this contention before us. in the view we have taken the appeal has no substance and is accordingly dismissed with no order as to costs but the court fee will be recovered from the appellant. appeal dismissed.

FACTS it was the appellant's case that he had been in occupation of the said 160 acres of cherikkal land about which and the adjoining lands there was a dispute as to whether the same belonged to a jenmi family known as koodalvalli illom--hereinafter called 'the illom or to the government of the erstwhile travancore state. the appellant's father and the appellant had occupied these lands, made improvement thereon by planting coconut trees, arecanut palms, peppervines, rubber-trees, jack trees, other trees, and by constructing bungalow, huts, wells etc. in the bona fide belief that the lands belonged to the illom. it was stated that according to the practice prevailing in the erstwhile state of travancore the cultivators could enter into unoccupied waste lands belonging to the janmies with the object of cultivating and improving them, and as they held the lands under them by paying rent, the consent of the jemies to such occupation was implied. in respect of the 160 acres of land of' the illom which were occupied by the appellant's father and the appellant, there was a dispute between the illom and the travancore state from about 1848. while this dispute was pending it appears the appellant applied to the conservator of forests for registration of the lands in his name, but the application was rejected in 1919 stating that the land applied for cannot be registered. while the application for registration was pending, the dispute between the illom and the state of travancore had reached a stage when the illom had to institute a suit in the district court at quilon for a declaration of its title to those properties. an appeal against it was dismissed. against an appeal was filed in the high court of travancore. the high court issued a commission for inspecting the properties and the commissioner in his report set out the improvements made by the appellant on the lands which comprised of a bungalow in which the appellant was residing, a number of small houses. a rubbers state, and a large number of other valuable trees like jack trees, mango trees, coconut trees etc. it appears that as there was no injunction restraining his dispossession. the appellant, pursuant to this order, was dispossessed from the lands and possession of these lands was given to the second defendant nair service society ltd. in august 1939. thereafter the suit out of which this appeal arises was filed against the government. ARGUMENT there is no order forfeiting the improvements as required under s. 9 of the act, and if s. 9 does not apply and there is no right of forfeiture as contemplated under s. 9, then the appellant is entitled to compensation under the general law. as the appellant was not served with a notice to quit as required under s. 9 of the act but was forcibly evicted without giving him an opportunity of cutting and taking away the trees etc. from the lands from which he was evicted, he would be entitled to claim compensation for the improvements made by him. the appellant did not occupy the lands as a trespasser with a bona fide claim of title because it was his case that he trespassed upon the land with a bona fide intention to improve the land, and as such he can still be considered as a bona fide trespasser entitled to improvements under the general law. even if trees are not included in s. 9 and no notice of forfeiture is necessary, under the general law even a trespasser on the land, whether bona fide or not, is entitled to compensation or damages for the improvements made by him on the land. it was not his case nor is it under the general law necessary for a person who trespassed on the land to trespass with a claim of bona fide title. ISSUE it is the case of the appellant that even, after the act was passed, unauthorised occupants of land belonging to the government who had made improvements therein had, under the rules made both under the act and the land assignment act a preferential claim over others for getting kuthakapattom or assignment of the property in their possession. several issues were framed, but it is not necessary to refer to: them except to say that the suit was decreed only for rs. 3000/being the value of the appellant's bungalow taken possession of by the respondent. ANALYSIS the possession of the appellant ,commenced after his application for registration was rejected in 1919, and the improvements, if any must have been effected only thereafter with full knowledge that the title to the lands was in dispute between the illom and the government, is unassailable. the court had earlier adverted the fact that after the application for registration was ,rejected the appellant tried to get himself impleaded in the suit filed by the illom against the state which application was also rejected and so the claim that his possession was bona fide or that he was a bona fide trespasser has no validity. this finding is fortified by s. 5 of the act which provides that from and after the commencement of the act it shall not be lawful for any person to occupy land which is the property of the government whether poramboke or not without the permission from the government or such officer of the government as may be ,empowered in that behalf. in view of this specific provision the contravention of which is punishable under s. 6 thereof, his conduct in applying for registration and for getting himself impleaded in the suit of the illom against the government, would show that he knew that the land was government land or land in which the government had a claim. the case of clark and another v. gaskarth, 8 taunt 431. trees are not included within the meaning of 'other products raised on the, land' in s. 9 of the act and there is, therefore, no obligation on the government to give notice of forfeiture under that section. the appellant was not a mere trespasser and had deliberately entered upon the lands knowing full well that he had no right, claim or title to the lands or had in any manner a right to enter the land and has been rightly evicted as a trespasser. STATUTE section 9 of the travancore land conservancy act 4 of 109 is in the following terms. any person unauthorised occupying any land for which he is liable to pay a fine under section 6 and an assessment or prohibitory assessment under section 7, may be summarily evicted by the division peishkar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the division peishkar may deem reasonable, be liable to forfeiture. 'forfeiture under this section shall be disposed of as the division peishkar may direct. an eviction under this section shall be made in the following manner, namely, by serving a notice on a person reported to be in occupation or his agent, requiring him, within such time as the division peishkar may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and, if the officer removing any such person shall be resisted or obstructed by any person, the division peishkar shall hold a summary enquiry into the, facts of the case and, if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person, and on his appearance may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance. provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 176, 179 and 181 of the travancore penal code in respect of the same facts.

FACTS it was the appellant's case that he had been in occupation of the said 160 acres of cherikkal land (unregistered dry lands in hilly tracts) about which and the adjoining lands there was a dispute as to whether the same belonged to a jenmi family known as koodalvalli illom--hereinafter called 'the illom or to the government of the erstwhile travancore state. the appellant's father and the appellant had occupied these lands, made improvement thereon by planting coconut trees, arecanut palms, peppervines, rubber-trees, jack trees, other trees, and by constructing bungalow, huts, wells etc. in the bona fide belief that the lands belonged to the illom. it was stated that according to the practice prevailing in the erstwhile state of travancore the cultivators could enter into unoccupied waste lands belonging to the janmies with the object of cultivating and improving them, and as they held the lands under them by paying rent, the consent of the jemies to such occupation was implied. in respect of the 160 acres of land of' the illom which were occupied by the appellant's father and the appellant, there was a dispute between the illom and the travancore state from about 1848. while this dispute was pending it appears the appellant applied to the conservator of forests for registration of the lands in his name, but the application was rejected in 1919 stating that the land applied for cannot be registered. while the application for registration was pending, the dispute between the illom and the state of travancore had reached a stage when the illom had to institute a suit in the district court at quilon for a declaration of its title to those properties. in that suit the appellant, after his application for registration was rejected, sought to get himself impleaded, but that application also was rejected. thereafter the suit filed by the illom was dismissed. an appeal against it was dismissed. against an appeal was filed in the high court of travancore. the high court issued a commission for inspecting the properties and the commissioner in his report set out the improvements made by the appellant on the lands which comprised of a bungalow in which the appellant was residing, a number of small houses. a rubbers state, and a large number of other valuable trees like jack trees, mango trees, coconut trees etc. it appears that as there was no injunction restraining his dispossession. the appellant, pursuant to this order, was dispossessed from the lands and possession of these lands was given to the second defendant nair service society ltd. in august 1939. thereafter the suit out of which this appeal arises was filed against the government. ARGUMENT there is no order forfeiting the improvements as required under s. 9 of the act, and if s. 9 does not apply and there is no right of forfeiture as contemplated under s. 9, then the appellant is entitled to compensation under the general law. as the appellant was not served with a notice to quit as required under s. 9 of the act but was forcibly evicted without giving him an opportunity of cutting and taking away the trees etc. from the lands from which he was evicted, he would be entitled to claim compensation for the improvements made by him. the appellant did not occupy the lands as a trespasser with a bona fide claim of title because it was his case that he trespassed upon the land with a bona fide intention to improve the land, and as such he can still be considered as a bona fide trespasser entitled to improvements under the general law. even if trees are not included in s. 9 and no notice of forfeiture is necessary, under the general law even a trespasser on the land, whether bona fide or not, is entitled to compensation or damages for the improvements made by him on the land. it was not his case nor is it under the general law necessary for a person who trespassed on the land to trespass with a claim of bona fide title. ISSUE it is the case of the appellant that even, after the act was passed, unauthorised occupants of land belonging to the government who had made improvements therein had, under the rules made both under the act and the land assignment act a preferential claim over others for getting kuthakapattom or assignment of the property in their possession. several issues were framed, but it is not necessary to refer to: them except to say that the suit was decreed only for rs. 3000/being the value of the appellant's bungalow taken possession of by the respondent. ANALYSIS the possession of the appellant ,commenced after his application for registration was rejected in 1919, and the improvements, if any must have been effected only thereafter with full knowledge that the title to the lands was in dispute between the illom and the government, is unassailable. the court had earlier adverted the fact that after the application for registration was ,rejected the appellant tried to get himself impleaded in the suit filed by the illom against the state which application was also rejected and so the claim that his possession was bona fide or that he was a bona fide trespasser has no validity. this finding is fortified by s. 5 of the act which provides that from and after the commencement of the act it shall not be lawful for any person to occupy land which is the property of the government whether poramboke or not without the permission from the government or such officer of the government as may be ,empowered in that behalf. in view of this specific provision the contravention of which is punishable under s. 6 thereof, his conduct in applying for registration and for getting himself impleaded in the suit of the illom against the government, would show that he knew that the land was government land or land in which the government had a claim. this view of ours is supported by the case of clark and another v. gaskarth. that was a case of a trespass for breaking and entering the closes of the plaintiffs and tearing up, digging up, cutting down, and carrying away the plaintiff's trees, plants, roots and seeds, growing on the closes. notice of this trespass was given to the defendant. at the time of the distress the sum of pound 281.6 s. was due from the plaintiffs to the defendant for rent in respect of the nursery ground. the question before the court was whether the plaintiffs were entitled to recover against the defendant damages caused to them by cutting down and carrying away the plaintiffs' trees. the court rejected the contention that the trees and shrubs could be detrained and held that the word product' in the eighth section of the statute did not extend to trees and shrubs growing in a nurseryman's ground, but that it was confined to products of a similar nature with those specified in that section, to all of which the process of becoming ripe, and of being cut, gathered, made, and laid up when ripe, was incidental. in our view, therefore, trees are not included within the meaning of 'other products raised on the, land' in s. 9 of the act and there is, therefore, no obligation on the government to give notice of forfeiture under that section. the appellant was not a mere trespasser and had deliberately entered upon the lands knowing full well that he had no right, claim or title to the lands or had in any manner a right to enter the land and has been rightly evicted as a trespasser. STATUTE this practice it seems, was also current in respect of lands belonging to the, government before the travancore land conservancy act 4 of 109. section 9 of the act is in the following terms. any person unauthorised occupying any land for which he is liable to pay a fine under section 6 and an assessment or prohibitory assessment under section 7, may be summarily evicted by the division peishkar, and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the division peishkar may deem reasonable, be liable to forfeiture. 'forfeiture under this section shall be disposed of as the division peishkar may direct. an eviction under this section shall be made in the following manner, namely, by serving a notice on a person reported to be in occupation or his agent, requiring him, within such time as the division peishkar may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and, if the officer removing any such person shall be resisted or obstructed by any person, the division peishkar shall hold a summary enquiry into the, facts of the case and, if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person, and on his appearance may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance. provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 176, 179 and 181 of the travancore penal code in respect of the same facts.

appellant before us was detained u s 3 of the conservation of foreign exchange and prevention of smuggling activities. act1974. for short cofeposa. he is the managing director of a company registered and incorporated under the provisions of the companies act known as m s sundesh springs private limited. it was an exporter and held a valid licence therefor. the company was to export products of alloy steel. upon exporting of alloy steel it was entitled to credits under the duty entitlement pass book depb. scheme introduced by the government of india with an object of encouraging exports. he allegedly misdeclared both the value and description of goods upon procuring fake and false bills through one prabhjot singh. the said prabhjot singh was said to have been operating three firms viz. m s s p industrial corporation m s. aaysons india and m s p j sales corporation ludhiana. it was allegedly found that non alloy steel bars rods etc of value ranging from rs 15 to rs 17 per kg were exported in the guise of alloy steel forgings bars rods etc by declaring their value thereof from rs 110 to rs 150 per kg and the export proceeds over and above the actual price were being routed through hawala channel. the officers of the directorate of revenue intelligence dri searched the factory as well as the residential premises of appellant and that of prabhjot singh. various incriminating documents were recovered. appellant and the said prabhjot singh made statements u s 108 of the customs act. prabhjot singh allegedly admitted to have supplied fake bills to units owned and controlled by appellant on commission basis without actual supply of the goods. it was also found that appellant had declared goods exported as alloy steel whereas after the tests conducted by central revenue control laboratory they were found to be other than alloy steeli e. non alloy. the consul economicconsulate general of india at dubai allegedly confirmed the existence of a parallel set of export invoices. invoices with a higher value were presented before the indian customs authorities with a view to avail depb incentives but in fact invoices with a lower value were presented for clearance. on the aforementioned allegations an order of detention was issued on 5 4 2005 appellant moved for issuance of a writ of habeas corpus before the high court of judicature of punjab and haryana. the said writ petition was dismissed by an order dated 23 11 2005 by a learned single judge. a letters patent appeal concededly which was not maintainable was filed thereagainst which was dismissed by reason of the impugned judgment. although before the high court the principal ground urged on behalf of appellant in questioning the legality or validity of the order of detention was unexplained delay in passing the order of detention which did not find favour with the high court. before us several other grounds viz. non placement of vital material documents before the detaining authority non supply of documents relied on or referred to in the order of detention as also non application of mind on the part of the detaining authority had been raised. in the meantime admittedly the period of detention being over appellant had been set at large. he was released from custody on 17 5 2006. this appeal however has been pressed as a proceeding under the smugglers and foreign exchange manipulators forfeiture of property act1976 for short safemahas been initiated against appellant. we may first deal with the question of unexplained delay. in this regard we may notice the following dates. on 13 10 2003appellant was arrested. he was discharged on bail on 6 1 2004 several inquiries were conducted both inside and outside india. a report in relation to overseas inquiry was received on 12 5 2004 on 25 6 2004 proposal of detention was sent which was approved on 2 12 2004 on. 20 12 2004the authorities of the dri stated that transactions after 11 10 2003 were not under scrutiny. furthermore the authorities of the dri by a letter dated 28 02 2005 requested the bank to defreeze the bank accounts of appellants. the order of detention was passed on 5 4 2005. the learned additional solicitor general who appeared on behalf of respondent has drawn our attention to a long list of dates showing that searches were conducted and statements of a large number of persons had to be recorded. the final order of detention was preceded not only on the basis of raids conducted in various premises recording of statements of a large number of witnesses carrying on intensive inquiries both within india and outside india obtaining test reports from three different laboratories but also the fact that despite notices appellant and his associates did not cooperate with the investigating authorities. they initiated various civil proceedings from time to time obtained various interim orders and thus delay in passing the order of detention can not be said to have not been explained. learned counsel would contend that keeping in view the nature and magnitude of an offence under cofeposa a distinction must be made between an order of detention passed under cofeposa vis a vis other acts as per the law laid down by this court in rajendrakumar natvarlal shah v state of gujarat and others 1988 3 scc 153 1988 indlaw sc 71 and in that view of the matter the high court must be held to have arrived at a correct decision. indisputably delay to some extent stands explained. but we fail to understand as to why despite the fact that the proposal for detention was made on 2 12 2004the order of detention was passed after four months. we must also notice that in the meantime on 20 12 2004the authorities of the dri had clearly stated that transactions after 11 10 2003 were not under the scrutiny stating in our letter mentioned above your office was requested not to issue the depb scripts to m s girnar impex limited and m s siri amar exports only in respect of the pending application if any filed by these parties up to the date of action i e 11 10 2003 as the past exports were under scrutiny being doubtful as per the intelligence received in this office. this office never intended to stop the export incentives occurring to the parties after the date of action i e 11 10 2003 in the civil your office letter. b l 2 misc. am 2003 ldh dated 17 05 2004 is being referred which is not received in this office. you are therefore requested to supply photocopy of the said letter to the bearer of this letter as this letter is required for filing reply to the honourable court. furthermore as noticed hereinbefore the authorities of the dri by a letter dated 28 02 2005 requested the bank to defreeze the bank accounts of appellant. the said documents in our opinion were material. it was therefore difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them. it is no doubt true that if the delay is sufficiently explained the same would not be a ground for quashing an order of detention under cofeposa but as in this case a major part of delay remains unexplained. we may also place on record that sen j in rajendrakumar natvarlal shah 1988 indlaw sc 71 suprawhile laying down various stages of the procedures leading to an order of detention opined that rule as to unexplained delay in taking action is not inflexible and a detention under cofeposa may be considered from a different angle. the question came up for consideration recently in rajinder arora v union of india and others 2006 4 scc 796 2006 indlaw sc 87 wherein it has been held furthermore no explanation whatsoever has been offered by the respondent as to why the order of detention has been issued after such a long time. the said question has also not been examined by the authorities before issuing the order of detention. the question as regard delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this court in t d abdul rahman v state of kerala and others air 1990 sc 225 1989 indlaw sc 205 stating the conspectus of the above decisions can be summarised thus the question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. no hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. it follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. however when there is undue and long delay between the prejudicial activities and the passing of detention order the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. the delay caused in this case in issuing the order of detention has not been explained. in fact no reason in that behalf whatsoever has been assigned at all. delay as is well known at both stages has to be explained. the court is required to consider the question having regard to the overall picture. we may notice that in sk. serajul v state of west bengal 1975 2 scc 78 1974 indlaw sc 475this court opined there was thus delay at both stages and this delay unless satisfactorily explained would throw considerable doubt on the genuineness of the subjective satisfaction of the district magistrate burdwan recited in the order of detention. it would be reasonable to assume that if the district magistrate of burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. in abdul salam alias thiyyan s o thiyyan mohammad detenu no 962general prison trivandrum v union of india and others 1990 3 scc 15 1990 indlaw sc 994 whereupon the learned additional solicitor general has placed strong reliance this court found that there had been potentiality or likelihood of prejudicial activities and thus or mere delay as long as it is explained the court may not strike down the detention. in the instant case we have noticed hereinbefore that the authorities of dri themselves categorically stated that the activities of appellant after 11 10 2003 were not in question and in fact all the bank accounts were defreezed. although learned additional solicitor general may be correct in his submissions that ordinarily we should not exercise our discretionary jurisdiction u art 136 of the constitution of india by allowing appellant to raise new grounds but in our opinion we may have to do so as an order of detention may have to be considered from a different angle. it may be true that the period of detention is over. it may further be true that appellant had remained in detention for the entire period but it is one thing to say that the writ of habeas corpus in this circumstances can not issue but it is another thing to say that an order of detention is required to be quashed so as to enable the detainee to avoid his civil liabilities under safema as also protect his own reputation. in a case of this nature we do not think in view of the admitted facts that we would not permit appellant to raise the said questions. so far as the question of non placement of material documents before the detaining authority is concerned we may notice the following dates i by a letter dated 5 7 2002the authorities of dri stated that appellant stood exonerated for earlier years after detailed examination. by a letter dated 20 12 2004the authorities of dri stated that transactions after 11 10 2003 were not under scrutiny and by letters dated 28 2 2005 and 7 3 2005the bank accounts of appellant were defreezed. by reason of the civil court by orders dated 7 5 2004 and 31 5 2004the bank accounts of m s girnar and shri amar were defreezed. by an order dated 13 8 2004the tribunal ordered release of goods. v by orders dated 31 8 2004 and 28 10 2004the civil judge directed release of documents to appellant. by an order dated 18 11 2004the civil court issued contempt notice to the authorities of dri for non release of documents and the authorities of dri made a statement before the court that the documents are being returned. we have noticed hereinbefore that learned additional solicitor general contended that appellant obstructed the proceedings by initiating various civil litigations. but indisputably those documents involving the civil court proceedings were not placed before the detaining authority. if the same had not been done not only the delay in issuing the order of detention stood unexplained but also thereby the order itself would become vitiated. furthermore the civil court proceedings were over on 19 11 2004. evidently the detaining authority did not take immediate steps to detain appellant. why the documents pertaining to the proceedings of the civil court had not been placed before the detaining authority has not been explained. on their own showing respondents admit that they were relevant documents. the question has been considered by this court in rajinder arora 2006 indlaw sc 87 supra stating admittedly furthermore the status report called for from the customs department has not been taken into consideration by the competent authorities. a division bench of this court in k s nagamuthu v state of tamil nadu ors 2005 9 scale 534 2005 indlaw sc 748 struck down an order of detention on the ground that the relevant material had been withheld from the detaining authority which in that case was a letter of the detenu retracting from confession made by him. in p saravanan v state of t n and others 2001 10 scc 212it was stated when we went through the grounds of detention enumerated by the detaining authority we noticed that there is no escape from the conclusion that the subjective satisfaction arrived at by the detaining authority was the cumulative result of all the grounds mentioned therein. it is difficult for us to say that the detaining authority would have come to the subjective satisfaction solely on the strength of the confession attributed to the petitioner dated 7 11 1999particularly because it was retracted by him. it is possible to presume that the confession made by the co accused sowkath ali would also have contributed to the final opinion that the confession made by the petitioner on 7 11 1999 can safely be relied on. what would have been the position if the detaining authority was apprised of the fact that sowkath ali had retracted his confession is not for us to make a retrospective judgment at this distance of time. in ahamed nassar v state of tamil nadu and others 1999 8 scc 473 1999 indlaw sc 778this court opined the question is not whether the second part of the contents of those letters was relevant or not but whether they were placed before the detaining authority for his consideration. there could be no two opinions on it. it contains the very stand of the detenu of whatever worth. what else would be relevant if not this. it may be that the detaining authority might have come to the same conclusion as the sponsoring authority but its contents are relevant which could not be withheld by the sponsoring authority. the letter dated 19 4 1999 reached the sponsoring authority and reached well within time for it being placed before the detaining authority. there is an obligation cast on the sponsoring authority to place it before the detaining authority which has not been done. even the letter dated 23 4 1999 which reached the secretary concerned at 3 00 p m on 26 4 1999 was much before the formal detention order dated 28 4 1999 the secretary concerned was obliged to place the same before the detaining authority. the respondent authority was not right in not placing it as it contains not only what is already referred to in the bail application dated 1 4 1999 but something more. the statements of appellant and prabhjot singh were noticed by the detaining authority. it had specifically been referred to in extenso in the order of detention. it is however stated that the records were tampered with at the instance of appellant. the self inculpatory statements of appellant and that of prabhjot singh were said to have been taken off the file. respondents contended that on first information report was registered against appellant as also one sepoy narender singh. but the said information report was registered only on 6 4 2005 and not prior to the date of order of detention. in paragraph 36 of the order of detention the detaining authority stated in view of the facts mentioned above i have no hesitation in arriving at the conclusion that you have through your acts of omission and commission indulged in prejudicial activities as narrated above. considering the nature and gravity of the offence the well planned manner in which you have engaged yourself in such prejudicial activities and your role therein as brought out above all of which reflect your high potentiality and propensity to indulge in such prejudicial activities in future i am satisfied that there is a need to prevent you from indulging in such prejudicial activities in future by detention under cofeposa act1974 with a view to preventing you from smuggling goods in future. we have been taken through the order of detention. the statements of appellant and the said prabhjot singh were recorded therein in extenso. recording of such statement must have been made from the xeroxed copies of such documents which were available with the detaining authority. the self inculpatory statements of appellant as also prabhjot singh purported to have been made in terms of s 108 of the customs act were required to be considered before the order of detention could be passed. the same was not done. the original of such documents might not been available with the detaining authority but admittedly the xeroxed copies were. it has not been denied or disputed that even the xeroxed copies of the said documents had not been supplied to the detenue. it may be true that appellant in his representation dated 14 06 2005 requested for showing him the original documents referred to or mentioned in the grounds of detention but then at least the xeroxed copies thereof should have been made available to him. learned additional solicitor general submitted that due to non supply of documents which were not vital or have merely been referred to as incidental the order of detention may not become vitiated as was been held by this court in kamarunnissa v. union of india and another. 1991 1 scc 128 1990 indlaw sc 85 the said decision was rendered in a different fact situation. in the said decision this court stated the law thus if merely an incidental reference is made to some part of the investigation concerning a co accused in the grounds of detention which has no relevance to the case set up against the detenus it is difficult to understand how the detenus could contend that they were denied the right to make an effective representation. it is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the non supply has impaired the detenu 's right to make an effective and purposeful representation. demand of any or every document however irrelevant it may be for the concerned detenu merely on the ground that there is a reference thereto in the grounds of detention cannot vitiate an otherwise legal detention order. no hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the advisory board had impaired or prejudiced his right however slight or insignificant it may be. in the present case except stating that the documents were not supplied before the meeting of the advisory board there is no pleading that it had resulted in the impairment of his right nor could counsel for the petitioners point out any such prejudice. we are therefore of the opinion that the view taken by the bombay high court in this behalf is unassailable. what is therefore relevant was as to whether the documents were material. if the documents were material so as to enable the detenue to make an effective representation which is his constitutional as also statutory right non supply thereof would vitiate the order of detention. it is a trite law that all documents which are not material are not necessary to be supplied. what is necessary to be supplied is the relevant and the material documents but thus all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right u art 225 of the constitution of india. right to make an effective representation is also a statutory right see sunila jain v 2006 3 scc 321 2006 indlaw sc 65. in this case the statements of appellant and prabhjot singh in our opinion were material. they could not have been withheld. if original of the said documents were not available xeroxed copies thereof could have been made available to him. the detaining authority moreover while relying on the said documents in one part of the order of detention could not have stated in another part that he was not relying thereupon. the very fact that he had referred to the said statements in ex tenso is itself a pointer to the fact that he had relied upon the said documents. even in the earlier part of the impugned order of detention i e detaining authority appears to have drawn his own conclusions. in view of our findings aforementioned it is not necessary to consider the contention raised by mr mukul rohtagi that order of detention suffers from non application of mind. the judgment of the high court therefore cannot be sustained. it is set aside accordingly and the order of detention passed against appellant is quashed. the appeal is allowed. no costs. appeal allowed.

FACTS appellant was detained u/s.3 of the conservation of foreign exchange and prevention of smuggling activities. act,1974. for short "cofeposa. he is the managing director of a company,registered and incorporated under the provisions of the companies act,known as m/s. sundesh springs private limited. it was an exporter and held a valid licence therefor. the company was to export products of alloy steel. upon exporting of alloy steel,it was entitled to credits under the duty entitlement pass book (depb. scheme introduced by the government of india with an object of encouraging exports. he allegedly misdeclared both the value and description of goods upon procuring fake and false bills through one prabhjot singh. the said prabhjot singh was said to have been operating three firms,viz. m/s. s.p.industrial corporation,m/s. aaysons (india) and m/s. p.j.sales corporation,ludhiana. it was allegedly found that non-alloy steel,bars,rods,etc.of value ranging from rs.15/-to rs.17/-per kg.were exported in the guise of alloy steel forgings,bars,rods,etc.by declaring their value thereof from rs.110/-to rs.150/-per kg.and the export proceeds over and above the actual price were being routed through hawala channel. the officers of the directorate of revenue intelligence (dri) searched the factory as well as the residential premises of appellant and that of prabhjot singh. various incriminating documents were recovered. appellant and the said prabhjot singh made statements u/s.108 of the customs act. prabhjot singh allegedly admitted to have supplied fake bills to units owned and controlled by appellant on commission basis without actual supply of the goods. it was also found that appellant had declared goods exported as "alloy steel" whereas after the tests conducted by central revenue control laboratory,they were found to be "other than alloy steel",i.e.,non-alloy. ARGUMENT the principal ground urged on behalf of appellant in questioning the legality or validity of the order of detention was unexplained delay in passing the order of detention which did not find favour with the high court. the learned additional solicitor general,who appeared on behalf of respondent has drawn our attention to a long list of dates showing that searches were conducted and statements of a large number of persons had to be recorded. the final order of detention was preceded not only on the basis of raids conducted in various premises,recording of statements of a large number of witnesses,carrying on intensive inquiries both within india and outside india,obtaining test reports from three different laboratories but also the fact that despite notices appellant and his associates did not cooperate with the investigating authorities. they initiated various civil proceedings from time to time,obtained various interim orders and,thus,delay in passing the order of detention cannot be said to have not been explained. learned counsel would contend that keeping in view the nature and magnitude of an offence under cofeposa,a distinction must be made between an order of detention passed under cofeposa vis-a-vis other acts as per the law laid down by this court in rajendrakumar natvarlal shah v. state of gujarat and others [(1988) 3 scc 153 1988 indlaw sc 71] and in that view of the matter the high court must be held to have arrived at a correct decision. ISSUE the question of unexplained delay. ANALYSIS the authorities of the dri by a letter dated 28.02.2005 requested the bank to defreeze the bank accounts of appellant. the said documents,in our opinion,were material. it was,therefore,difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them. it is no doubt true that if the delay is sufficiently explained,the same would not be a ground for quashing an order of detention under cofeposa,but as in this case a major part of delay remains unexplained. delay,as is well known,at both stages has to be explained. the court is required to consider the question having regard to the overall picture. the authorities of dri themselves categorically stated that the activities of appellant after 11.10.2003 were not in question and in fact all the bank accounts were defreezed. although learned additional solicitor general may be correct in his submissions that ordinarily we should not exercise our discretionary jurisdiction u/art.136 of the constitution of india by allowing appellant to raise new grounds but,in the court’s opinion,they have to do so as an order of detention may have to be considered from a different angle. it may be true that the period of detention is over. it may further be true that appellant had remained in detention for the entire period but it is one thing to say that the writ of habeas corpus in this circumstances cannot issue but it is another thing to say that an order of detention is required to be quashed so as to enable the detainee to avoid his civil liabilities under safema as also protect his own reputation. in a case of this nature,we do not think,in view of the admitted facts,that we would not permit appellant to raise the said questions. the statements of appellant and the said prabhjot singh were recorded therein in extenso. recording of such statement must have been made from the xeroxed copies of such documents which were available with the detaining authority. the self-inculpatory statements of appellant as also prabhjot singh purported to have been made in terms of s.108 of the customs act were required to be considered before the order of detention could be passed. the same was not done. the original of such documents might not been available with the detaining authority but admittedly the xeroxed copies were. it has not been denied or disputed that even the xeroxed copies of the said documents had not been supplied to the detenue. it may be true that appellant in his representation dated 14.06.2005 requested for showing him the original documents referred to or mentioned in the grounds of detention but then at least the xeroxed copies thereof should have been made available to him. it is a trite law that all documents which are not material are not necessary to be supplied. what is necessary to be supplied is the relevant and the material documents,but,thus,all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right u/art.22(5) of the constitution of india. right to make an effective representation is also a statutory right.[see sunila jain v. 2006) 3 scc 321 2006 indlaw sc 65. in this case,the statements of appellant and prabhjot singh, ,were material. they could not have been withheld. if original of the said documents were not available,xeroxed copies thereof could have been made available to him. the detaining authority moreover while relying on the said documents in one part of the order of detention could not have stated in another part that he was not relying thereupon. the very fact that he had referred to the said statements in ex tenso is itself a pointer to the fact that he had relied upon the said documents. even in the earlier part of the impugned order of detention,i.e.detaining authority appears to have drawn his own conclusions. STATUTE this appeal,however,has been pressed as a proceeding under the smugglers and foreign exchange manipulators (forfeiture of property) act,1976 (for short "safema"),has been initiated against appellant.

FACTS appellant before us was detained u/s.3 of the conservation of foreign exchange and prevention of smuggling activities act,1974 (for short "cofeposa"). he is the managing director of a company,registered and incorporated under the provisions of the companies act,known as m/s.sundesh springs private limited. it was an exporter and held a valid licence therefor. the company was to export products of alloy steel. upon exporting of alloy steel,it was entitled to credits under the duty entitlement pass book (depb) scheme introduced by the government of india with an object of encouraging exports. he allegedly misdeclared both the value and description of goods upon procuring fake and false bills. it was allegedly found that non-alloy steel,bars,rods,etc.of value ranging from rs.15/-to rs.17/-per kg were exported in the guise of alloy steel forgings,bars,rods,etc.by declaring their value thereof from rs.110/-to rs.150/-per kg and the export proceeds over and above the actual price were being routed through hawala channel. the officers of the directorate of revenue intelligence (dri) searched the factory as well as the residential premises of appellant. various incriminating documents were recovered. appellant made statements u/s.108 of the customs act. prabhjot singh allegedly admitted to have supplied fake bills to units owned and controlled by appellant on commission basis without actual supply of the goods. it was also found that appellant had declared goods exported as "alloy steel" whereas after the tests conducted by central revenue control laboratory,they were found to be "other than alloy steel",i.e.,non-alloy. the consul (economic),consulate general of india at dubai allegedly confirmed the existence of a parallel set of export invoices. invoices with a higher value were presented before the indian customs authorities with a view to avail depb incentives but in fact invoices with a lower value were presented for clearance. ARGUMENT the final order of detention was preceded not only on the basis of raids conducted in various premises,recording of statements of a large number of witnesses,carrying on intensive inquiries both within india and outside india,obtaining test reports from three different laboratories but also the fact that despite notices appellant and his associates did not cooperate with the investigating authorities. they initiated various civil proceedings from time to time,obtained various interim orders and,thus,delay in passing the order of detention cannot be said to have not been explained. keeping in view the nature and magnitude of an offence under cofeposa,a distinction must be made between an order of detention passed under cofeposa vis-a-vis other acts. ISSUE the court dealt with the question of unexplained delay. ANALYSIS non placement of vital/ material documents before the detaining authority,non-supply of documents relied on or referred to in the order of detention as also non-application of mind on the part of the detaining authority had been raised. the court failed to understand as to why despite the fact that the proposal for detention was made,the order of detention was passed after four months. the authorities of the dri by a letter requested the bank to defreeze the bank accounts of appellant. it was,therefore,difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them. it is no doubt true that if the delay is sufficiently explained,the same would not be a ground for quashing an order of detention under cofeposa,but as in this case a major part of delay remains unexplained. in sk.serajul v.state of west bengal [(1975) 2 scc 78 1974 indlaw sc 475],this court opined that there was thus delay at both stages and this delay,unless satisfactorily explained,would throw considerable doubt on the genuineness of the subjective satisfaction of the district magistrate,burdwan recited in the order of detention. it would be reasonable to assume that if the district magistrate of burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner,he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner,and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. appellant had remained in detention for the entire period but it is one thing to say that the writ of habeas corpus in this circumstances cannot issue but it is another thing to say that an order of detention is required to be quashed so as to enable the detainee to avoid his civil liabilities under safema as also protect his own reputation. a division bench of this court in k.s.nagamuthu v.state of tamil nadu & ors.[2005 (9) scale 534 2005 indlaw sc 748] struck down an order of detention on the ground that the relevant material had been withheld from the detaining authority; which in that case was a letter of the detenu retracting from confession made by him. recording of statement of appellant must have been made from the xeroxed copies of such documents which were available with the detaining authority. the self-inculpatory statements of appellant purported to have been made in terms of s.108 of the customs act were required to be considered before the order of detention could be passed. the same was not done. the original of such documents might not been available with the detaining authority but admittedly the xeroxed copies were. it has not been denied or disputed that even the xeroxed copies of the said documents had not been supplied to the detenue. it may be true that appellant in his representation requested for showing him the original documents referred to or mentioned in the grounds of detention but then at least the xeroxed copies thereof should have been made available to him. all documents which are not material are not necessary to be supplied. what is necessary to be supplied is the relevant and the material documents,but,thus,all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right u/art.22(5) of the constitution of india. right to make an effective representation is also a statutory right. the detaining authority moreover while relying on the said documents in one part of the order of detention could not have stated in another part that he was not relying thereupon. the very fact that he had referred to the said statements in ex tenso is itself a pointer to the fact that he had relied upon the said documents. even in the earlier part of the impugned order of detention,i.e.detaining authority appears to have drawn his own conclusions. STATUTE this appeal,however,has been pressed as a proceeding under the smugglers and foreign exchange manipulators (forfeiture of property) act,1976 (for short "safema"),has been initiated against appellant.

accused pathan hussain basha was married to pathan haseena begum now deceased on 23rd june2002 at guntur. it was an arranged marriage. at the time of marriage it was promised that a dowry of rs 25000 besides other formalities would be paid by the side of the wife to the husband. out of this amount a sum of rs 15000 was paid at that time and it was promised that the balance dowry of rs 10000 would be paid in the month of october2002upon which the marriage was performed. the father of the bride could not pay the balance amount within time because he lacked the resources. the accused pathan hussain basha his father pathan khadar basha and mother pathan nazeer abi forced her to get the balance amount of dowry. despite such pressure she was not able to get that money from her family. it is the case of the prosecution that for non payment of dowry the accused persons harassed the deceased and subjected her to cruelty. they even refused to send her to her parental house. this was informed by the deceased to various persons including her relatives and elders. she was unable to bear the cruelty to which she was subjected by the accused persons. on 15th february2003at about 11 a m the deceased committed suicide by hanging herself in the house of the accused. when pathan basheerunnisa lw3 returned from her work the accused sent her out giving her money to bring the soaps upon which she went out and when she came back she found the accused absent and the bride hanging in the house. subsequently lw 3 pathan basheerunnisa sent her grandson pathan inayatullah khan lw 4 to the house of the parents of the deceased to inform them about the incident. when the parents of the deceased came to the house of the accused and found the deceased hanging from the beam with a saree they untied her and took her to the government general hospital guntur hoping that the deceased may be alive. however upon medical examination by the doctor she was declared brought dead. the father of the deceased pathan yasin khan lw 1 and her mother pathan shamshad begum lw 2 were present at that time. lw 1lodged the report which was registered by sri k srinivasarao lw 16the sub inspector of police. the fir was registered under section 304b and section 498a of the indian penal code1860 for short the ipc thereafter investigation was conducted by one shri p devadass lw 17 he inspected the site from where he recovered and seized the saree that had been used for hanging. this was done in the presence of lw 10 and lw 11shaik ibrahim and mohd ghouse respectively. thereupon the body was sent for postmortem examination through constable p venkateswara reddy lw 15 lw 17p devdass also took photographs of the scene 3 lw 13dr. m madhusudana reddy conducted autopsy over the body of the deceased and prepared post mortem certificate giving the cause of death as asphyxia as a result of hanging. on 16th february2003at about 5 p m. investigating officer arrested all the three accused persons. they faced the trial and were convicted by learned sixth additional munsif magistrate guntur for committing an offence under sections 498a and 304b ipc. they were committed to the court of sessions guntur division guntur for such an offence. they faced the trial and the learned sessions judge vide its judgment dated 4th october2004 found them guilty of the said offences and punished them as follows hence a 1 to a 3 are sentenced to undergo r i for three years and further sentenced to pay a fine of rs 1000 each total fine amount rs 3000 offence punishable u s 498 a ipc i d of the fine amount of rs 1000 to undergo si for 9 months. and further a 1 to a 3 are sentenced to undergo imprisonment for life for the offence u s 304 b ipc both the sentences shall run concurrently. the undergone remand period of a 1 to a 3 shall be set off u s 428 cr. p c m o 1 shall be destroyed after expiry of appeal time. the unmarked property if any shall be destroyed after expiry of appeal time. the judgment dated 4th october2004 passed by the learned trial court was challenged in appeal before the high court. the high court of andhra pradesh vide its judgment dated 26th october2006while allowing the appeal in part convicted accused nos 1 and 2 for the aforementioned offences however acquitted accused no 3namely pathan khadar basha. the sentence awarded by the trial court was confirmed. this gave rise to filing of the present appeals. first and the foremost we must consider what is the evidence led by the prosecution to bring home the guilt of accused. accused were charged with offences under sections 498a and 304b of the ipc the fir in the present case was lodged by lw 1who is the father of the deceased. according to this witness on 23rd january2002the marriage of his daughter was solemnised with accused pathan hussain basha and he had accepted to give rs 25000 in marriage. he had given only rs 15000 and had agreed to pay rs 10000 after four months. this witness has further specifically stated that the said accused treated his daughter in a proper manner for about two months. in the marriage he had also given a gold chain a double bed an iron safe and other items. he had called his son in law accused no 1to his house as per custom at that point the accused demanded a ceiling fan. a ceiling fan was lying with the witness and he gave that to his son in law however he protested the same on the ground that the old fan is not acceptable to him and he would like to have a new fan which was bought for rs 650 by the witness and given to his son in law. when he again invited his son in law and the mother in law of his daughter even then he had gifted some presents to them. the accused asked for rs 1000 with a ring for the deceased. the witness could pay only rs 500 upon which the accused refused to take the deceased to the matrimonial home and went away. later on the accused came to fetch deceased. subsequently the motherin law of the deceased again demanded the balance dowry amount of rs 10000 which he could not pay. his daughter after the ramzan festival had informed him that the accused persons were harassing her and were even beating and abusing her. all three accused used to beat her for the remaining amount of dowry. on 15th february2003a boy had come to him and told him that his daughter had died by hanging herself whereupon he went to the house of the accused and found that his daughter was hanged to a wooden beam with a saree and she was dead. the saree was removed she was taken to the hospital where she was reported to have brought dead. the statement of this witness i e lw 1 is corroborated by lw 3 and lw 7. it is stated by lw 3 that she knew all the accused persons as she was residing in the house of the accused and the deceased. according to this witness also in the beginning they were happy however after some time she used to hear some quarrel between the deceased and the accused persons. accused no 2pathan nazeer abi had given her some amount and asked her to go and bring the soaps. after bringing the soaps she went to the house of the accused persons and found that the accused was absent and the deceased was hanging on one side of the room. after seeing this she raised cries and people came to the scene. lw 4pathan inayatullah khan the grandson of lw 3went to the house of the parents of the deceased and informed them about the unfortunate incident. lw 7 stated on oath that he was present at the time of giving of dowry to the accused by the family of the deceased. he confirmed the fact that rs 15000 was given at the time of marriage and rs 10000 was to be given within some time which the father of the deceased failed to provide. according to him the accused persons used to harass the deceased primarily for non payment of the amount of dowry as a result of which she was forced to commit suicide. in fact there is no dispute to the fact that the deceased died of hanging. dr m madhusudana reddy lw 13 who was the associate professor in forensic medicine at guntur medical college performed the post mortem over the body of the deceased. in the medical report lw13he noticed oblique ligature mark of 17 x 2 5 cm present over front and left sides of neck as well as noticed abrasion 1 5 x 1 cm present over lower part of middle of chin. injuries were found to be antemortem in nature and the cause of death was stated to be asphyxia as a result of hanging. lw 14 is a witness to the seizure of the body and she noticed injuries on the body of the deceased. from the above evidence it is clear that the dowry demands were being raised by the accused persons persistently from the family of the deceased and for that they even harassed the deceased by beating and abusing her. she had informed her parents of the ill treatment and the cruelty inflicted on her for non giving of dowry. the period intervening between the marriage and the death of the deceased is very small. they were married in the year 2002 and she committed suicide by hanging on 15th. february2003 the witnesses including lw 1 have stated that for the first few months they were happy but thereafter there were quarrels between the accused and the deceased. accused pathan hussain basha when he had gone to the parental house of the deceased demanded different items like fan ring and rs 1000 in cash and the balance of the agreed dowry amount. since these demands were not satisfied instantaneously he even left the deceased at her parental house. at this stage it will be appropriate for us to examine as to what are the ingredients of an offence punishable under section 304b of the ipc. in the case of biswajit halder alias babu halder and others v state of w b 2008 1 scc 202 2007 indlaw sc 304the court stated the ingredients of this provision as follows 10 the basic ingredients to attract the provisions of section 304 b are as follows. 1 the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances 2 such death should have occurred within seven years of her marriage 3 she must have been subjected to cruelty or harassment by her husband or any relative of her husband and 4 such cruelty or harassment should be for or in connection with demand for dowry. 11 alongside insertion of section 304 b in ipc the legislature also introduced section 113 b of the evidence act which lays down when the question as to whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry the court shall presume that such person had caused the dowry death. 12 explanation appended to section. 113 b lays down that for the purpose of this sectiondowry death shall have the same meaning as in section 304 b of indian penal code. 13 if. section 304 b ipc is read together with section 113 b of the evidence act a comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband the case would squarely come under dowry death and there shall be a presumption against the husband and the relatives. besides examining the ingredients of the provision it would also be necessary for us to examine the meaning and connotation of the expressions dowry deathsoon before her death and in connection with any demand for dowry as appearing in the said section. amongst others lapse of time between the date of marriage and the date of death is also a relevant consideration for the court while examining whether the essential ingredients of the provision are satisfied or not in a given case. in the case of ashok kumar v state of haryana 2010 12 scc 350 2010 indlaw sc 502this court explained these terms in some elucidation and the effect of the deeming fiction appearing in the section as follows 11 the appellant was charged with an offence under section 304 b of the code. this penal section clearly spells out the basic ingredients as well as the matters which are required to be construed strictly and with significance to the cases where death is caused by burns bodily injury or the death occurring otherwise than under normal circumstances in any manner within seven years of a marriage. it is the first criteria which the prosecution must prove. secondly that soon before her death she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for or in connection with any demand for dowry then such a death shall be called dowry death and the husband or the relative as the case may be will be deemed to have caused such a death. the explanation to this section requires that the expression dowry shall have the same meaning as in s 2 of the act. 12 the definition of dowry under s 2 of the act reads as under 2 definition of dowry. in this actdowry means any property or valuable security given or agreed to be given either directly or indirectly a by one party to a marriage to the other party to the marriage or b by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the muslim personal law shariat applies. explanation ii the expression valuable security has the same meaning as in s 30 of the penal code 45 of 1860. from the above definition it is clear thatdowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to another by parents of either party to each other or any other person at before or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the muslim personal law. all the expressions used under this section are of a very wide magnitude. the expressions or any time after marriage and in connection with the marriage of the said parties were introduced by the amending act 63 of 1984 and act 43 of 1986 with effect from 2 101985 and 19 11 1986 respectively. these amendments appear to have been made with the intention to cover all demands at the time before and even after the marriage so far they were in connection with the marriage of the said parties. this clearly shows the intent of the legislature that these expressions are of wide meaning and scope. the expression in connection with the marriage can not be given a restricted or a narrower meaning. the expression in connection with the marriage even in common parlance and on its plain language has to be understood generally. the object being that everything which is offending at any time i e at before or after the marriage would be covered under this definition but the demand of dowry has to be in connection with the marriage and not so customary that it would not attract on the face of it the provisions of this section. at this stage it will be appropriate to refer to certain examples showing what has and has not been treated by the courts as dowry. this court in ran singh v state of haryana2008 4 scc 700 2008 indlaw sc 120 held that the payments which are customary payments for example given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage would not be covered under the expression dowry. again in satvir singh v state of punjab20018 scc 633 2001 indlaw sc 224. this court held that the word dowry should be any property or valuable given or agreed to be given in connection with the marriage. the customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word dowry. this court in madhu sudan malhotra v kishore chand bhandari1988 supp. scc 424 1987 indlaw sc 28308 held that furnishing of a list of ornaments and other household articles such as refrigerator furniture and electrical appliances etc to the parents or guardians of the bride at the time of settlement of the marriage prima facie amounts to demand of dowry within the meaning of s 2 of the act. the definition of dowry is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands was the dictum of this court in state of a p v. raj gopal asawa20044 scc 470 2004 indlaw sc 205. the courts have also taken the view that where the husband had demanded a specific sum from his father in law and upon not being given harassed and tortured the wife and after some days she died such cases would clearly fall within the definition of dowry under the act. s 4 of the act is the penal section and demanding a dowryas defined under s 2 of the act is punishable under this section. as already noticed we need not deliberate on this aspect as the accused before us has neither been charged nor punished for that offence. we have examined the provisions of s 2 of the act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of section 304 b of the code. we have already referred to the provisions of section 304 b of the code and the most significant expression used in the section is soon before her death. in our view the expression soon before her death can not be given a restricted or a narrower meaning. they must be understood in their plain language and with reference to their meaning in common parlance. these are the provisions relating to human behaviour and therefore cannot be given such a narrower meaning which would defeat the very purpose of the provisions of the act of course these are penal provisions and must receive strict construction. but even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the act. further the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other. we are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. this court in tarsem singh v state of punjab2008. 16 scc 155 2008 indlaw sc 1962 held that the legislative object in providing such a radius of time by employing the words soon before her death is to emphasise the idea that her death should in all probabilities has been the aftermath of such cruelty or harassment. in other words there should be a reasonable if not direct nexus between her death and the dowryrelated cruelty or harassment inflicted on her. similar view was expressed by this court in yashoda v state of m p20043 scc 98 2004 indlaw sc 132 where this court stated that determination of the period would depend on the facts and circumstances of a given case. however the expression would normally imply that there has to be reasonable time gap between t he cruelty inflicted and the death in question. if this is so the legislature in its wisdom would have specified any period which would attract the provisions of this section. however there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. for want of any specific period the concept of reasonable period would be applicable. thus the cruelty harassment and demand of dowry should not be so ancient whereafter the couple and the family members have lived happily and that it would result in abuse of the said protection. such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. these matters of course will have to be examined on the facts and circumstances of a given case. the cruelty and harassment by the husband or any relative could be directly relatable to or in connection with any demand for dowry. the expression demand for dowry will have to be construed ejusdem generis to the word immediately preceding this expression. similarlyin connection with the marriage is an expression which has to be given a wider connotation. it is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. these are penal provisions but ultimately these are the social legislations intended to control offences relating to the society as a whole. dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage. the court can not ignore one of the cardinal principles of criminal jurisprudence that a suspect in the indian law is entitled to the protection of art 20 of the constitution of india as well as has a presumption of innocence in his favour. in other words the rule of law requires a person to be innocent till proved guilty. the concept of deeming fiction is hardly applicable to the criminal jurisprudence. in contradistinction to this aspect the legislature has applied the concept of deeming fiction to the provisions of section 304 b where other ingredients of section 304 b are satisfied in that event the husband or all relatives shall be deemed to have caused her death. in other words the offence shall be deemed to have been committed by fiction of law. once the prosecution proves its case with regard to the basic ingredients of section 304 b the court will presume by deemed fiction of law that the husband or the relatives complained of has caused her death. such a presumption can be drawn by the court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304 b of the code. applying these principles to the facts of the present case it is clear that the ingredients of section 304b read with section 498a ipc are completely satisfied in the present case. by a deeming fiction in law the onus shifts on to the accused to prove as to how the deceased died. it is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. the accused did not care to explain as to how the death of his wife occurred. denial can not be treated to be the discharge of onus. onus has to be discharged by leading proper and cogent evidence. it was expected of the accused to explain as to how and why his wife died as well as his conduct immediately prior and subsequent to the death of the deceased. maintaining silence can not be equated to discharge of onus by the accused. in the present case the prosecution by reliable and cogent evidence has established the guilt of the accused. there being no rebuttal thereto there is no occasion to interfere in the judgments of the courts under appeal. the high court acquitted pathan khadar basha the fatherin law of the deceased as there was no direct evidence against him. his acquittal has not been challenged by the state before us thus we are not called upon to discuss this aspect of the matter. accused pathan hussain basha and pathan nazeer abi have rightly been found guilty of the offence by the courts. while we see no reason to differ with the concurrent findings recorded by the trial court and the high court we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence the attendant circumstances the age of the accused and the fact that they have already being in jail for a considerable period the court may take lenient view as far as the quantum of sentence is concerned. the offences having been proved against the accused and keeping in view the attendant circumstances we are of the considered view that ends of justice would be met if the punishment awarded to the appellants is reduced. consequently we award ten years rigorous imprisonment to the appellants. the appeals are partially accepted to the extent afore indicated. appeals partly allowed.

FACTS accused pathan hussain basha,was married to pathan haseena begum (now deceased) in june,2002 at guntur. it was an arranged marriage. at the time of marriage,it was promised that a dowry of rs.25,000/-,besides other formalities,would be paid by the side of the wife to the husband. out of this amount,a sum of rs.15,000/was paid at that time and it was promised that the balance dowry of rs.10,000/would be paid in october,2002,upon which the marriage was performed. the father of the bride could not pay the balance amount within time,because he lacked the resources. the accused pathan hussain basha,his father pathan khadar basha,and mother pathan nazeer abi forced her to get the balance amount of dowry. it is the case of the prosecution that for non-payment of dowry,the accused persons harassed the deceased and subjected her to cruelty. this was informed by the deceased to various persons,including her relatives and elders. she was unable to bear the cruelty to which she was subjected,by the accused persons.on 15th february,2003,the deceased committed suicide by hanging herself in the house of the accused. when pathan basheerunnisa, returned from her work,the accused sent her out giving her money to bring the soaps upon which she went out and when she came back,she found the accused absent and the bride hanging in the house. subsequently, basheerunnisa sent her grandson inayatullah to the house of the parents of the deceased to inform them about the incident. when the parents of the deceased came to the house of the accused and found the deceased hanging from the beam with a saree,they untied her and took her to the government general hospital,guntur hoping that the deceased may be alive. however,upon medical examination by the doctor,she was declared brought dead. the father of the deceased yasin khan and her mother shamshad begum, were present at that time. the fir was registered under section 304b and section 498a of the indian penal code,1860. thereafter,investigation was conducted. he inspected the site from where he recovered and seized the saree that had been used for hanging. the body was sent for postmortem examination,also took photographs of the scene. autopsy was conducted over the body of the deceased and prepared post-mortem certificate giving the cause of death as asphyxia,as a result of hanging.investigating officer arrested all the three accused persons. ANALYSIS accused were charged with offences under sections 498a and 304b of the ipc. the fir in the present case was lodged the father of the deceased. according to this witness,on 23rd january,2002,the marriage of his daughter was solemnised with accused pathan hussain basha and he had accepted to give rs.25,000/in marriage. he had given only rs.15,000/and had agreed to pay rs.10,000/-,after four months. this witness has further specifically stated that the said accused treated his daughter in a proper manner for about two months. in the marriage,he had also given a gold chain,a double bed,an iron safe and other items. the accused asked for rs.1,000/with a ring for the deceased. the witness could pay only rs.500/upon which the accused refused to take the deceased to the matrimonial home and went away. lw-7 confirmed that rs.15,000/was given at the time of marriage and rs.10,000/was to be given within some time,which the father of the deceased failed to provide. according to him,the accused persons used to harass the deceased primarily for non-payment of the amount of dowry,as a result of which,she was forced to commit suicide. the dowry demands were being raised by the accused persons persistently from the family of the deceased and for that they even harassed the deceased,by beating and abusing her. she had informed her parents of the ill-treatment and the cruelty inflicted on her for non-giving of dowry. it was appropriate for the court to examine as to what are the ingredients of an offence punishable under section 304b of the ipc. in the case of biswajit halder alias babu halder and others v.state of w.b.[(2008) 1 scc 202 2007 indlaw sc 304],the court stated the basic ingredients to attract the provisions of section 304-b are (1) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (2) such death should have occurred within seven years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry. for the purpose of section 113-b of the evidence act, 'dowry death' shall have the same meaning as in section 304-b of indian penal code. if section 304-b ipc is read together with section 113-b of the evidence act,a comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband,the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives. where the husband had demanded a specific sum from his father-in-law and upon not being given,harassed and tortured the wife and after some days she died,such cases would clearly fall within the definition of "dowry" under the act.s.4 of the act is the penal section and demanding a "dowry",as defined under s.2 of the act,is punishable under this section. as already noticed,the court need not deliberate on this aspect,as the accused before the court has neither been charged nor punished for that offence. the court examined the provisions of s.2 of the act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of section 304-b of the code. the court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the indian law is entitled to the protection of art.20 of the constitution of india as well as has a presumption of innocence in his favour. in other words,the rule of law requires a person to be innocent till proved guilty. the concept of deeming fiction is hardly applicable to the criminal jurisprudence. in contradistinction to this aspect,the legislature has applied the concept of deeming fiction to the provisions of section 304-b. where other ingredients of section 304-b are satisfied,in that event,the husband or all relatives shall be deemed to have caused her death. in other words,the offence shall be deemed to have been committed by fiction of law. once the prosecution proves its case with regard to the basic ingredients of section 304-b,the court will presume by deemed fiction of law that the husband or the relatives complained of,has caused her death. such a presumption can be drawn by the court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304-b of the code. the ingredients of section 304b read with section 498a ipc are completely satisfied in the present case. the accused did not care to explain as to how the death of his wife occurred. denial cannot be treated to be the discharge of onus. onus has to be discharged by leading proper and cogent evidence. it was expected of the accused to explain as to how and why his wife died,as well as his conduct immediately prior and subsequent to the death of the deceased. maintaining silence cannot be equated to discharge of onus by the accused. in the present case,the prosecution by reliable and cogent evidence has established the guilt of the accused. there being no rebuttal thereto,there is no occasion to interfere in the judgments of the courts under appeal. the offences having been proved against the accused and keeping in view the attendant circumstances,the court was of the considered view that ends of justice would be met,if the punishment awarded to the appellants is reduced.

FACTS accused pathan hussain basha,was married to pathan haseena begum (now deceased) in june,2002 at guntur. it was an arranged marriage. at the time of marriage,it was promised that a dowry of rs.25,000/-,besides other formalities,would be paid by the side of the wife to the husband. out of this amount,a sum of rs.15,000/was paid at that time and it was promised that the balance dowry of rs.10,000/would be paid in october,2002,upon which the marriage was performed. the father of the bride could not pay the balance amount within time,because he lacked the resources. the accused pathan hussain basha,his father pathan khadar basha,and mother pathan nazeer abi forced her to get the balance amount of dowry. it is the case of the prosecution that for non-payment of dowry,the accused persons harassed the deceased and subjected her to cruelty. they even refused to send her to her parental house. this was informed by the deceased to various persons,including her relatives and elders. she was unable to bear the cruelty to which she was subjected,by the accused persons.on 15th february,2003,the deceased committed suicide by hanging herself in the house of the accused. when pathan basheerunnisa, returned from her work,the accused sent her out giving her money to bring the soaps upon which she went out and when she came back,she found the accused absent and the bride hanging in the house. subsequently, basheerunnisa sent her grandson inayatullah to the house of the parents of the deceased to inform them about the incident. when the parents of the deceased came to the house of the accused and found the deceased hanging from the beam with a saree,they untied her and took her to the government general hospital,guntur hoping that the deceased may be alive. however,upon medical examination by the doctor,she was declared brought dead. the father of the deceased yasin khan and her mother shamshad begum, were present at that time. the fir was registered under section 304b and section 498a of the indian penal code,1860. thereafter,investigation was conducted. he inspected the site from where he recovered and seized the saree that had been used for hanging. the body was sent for postmortem examination,also took photographs of the scene. autopsy was conducted over the body of the deceased and prepared post-mortem certificate giving the cause of death as asphyxia,as a result of hanging. investigating officer arrested all the three accused persons. ANALYSIS accused were charged with offences under sections 498a and 304b of the ipc. the fir in the present case was lodged the father of the deceased. according to this witness,on 23rd january,2002,the marriage of his daughter was solemnised with accused pathan hussain basha and he had accepted to give rs.25,000/in marriage. he had given only rs.15,000/and had agreed to pay rs.10,000/-,after four months. this witness has further specifically stated that the said accused treated his daughter in a proper manner for about two months. in the marriage,he had also given a gold chain,a double bed,an iron safe and other items. the accused asked for rs.1,000/with a ring for the deceased. the witness could pay only rs.500/upon which the accused refused to take the deceased to the matrimonial home and went away. lw-7 confirmed that rs.15,000/was given at the time of marriage and rs.10,000/was to be given within some time,which the father of the deceased failed to provide. according to him,the accused persons used to harass the deceased primarily for non-payment of the amount of dowry,as a result of which,she was forced to commit suicide. the dowry demands were being raised by the accused persons persistently from the family of the deceased and for that they even harassed the deceased,by beating and abusing her. she had informed her parents of the ill-treatment and the cruelty inflicted on her for non-giving of dowry. it was appropriate for the court to examine as to what are the ingredients of an offence punishable under section 304b of the ipc. in the case of biswajit halder alias babu halder and others v.state of w.b.[(2008) 1 scc 202 2007 indlaw sc 304],the court stated the basic ingredients to attract the provisions of section 304-b are (1) the death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances; (2) such death should have occurred within seven years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) such cruelty or harassment should be for or in connection with demand for dowry. for the purpose of section 113-b of the evidence act, 'dowry death' shall have the same meaning as in section 304-b of indian penal code. if section 304-b ipc is read together with section 113-b of the evidence act,a comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial home within 7 years from her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband,the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives. "dowry" means any property or valuable security given or agreed to be given either directly or indirectly by one party to another,by parents of either party to each other or any other person at,before,or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the muslim personal law. all the expressions used under this section are of a very wide magnitude. in satvir singh v.state of punjab,(2001)8 scc 633 2001 indlaw sc 224 this court held that the word "dowry" should be any property or valuable given or agreed to be given in connection with the marriage. the customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word "dowry". where the husband had demanded a specific sum from his father-in-law and upon not being given,harassed and tortured the wife and after some days she died,such cases would clearly fall within the definition of "dowry" under the act.s.4 of the act is the penal section and demanding a "dowry",as defined under s.2 of the act,is punishable under this section. as already noticed,the court need not deliberate on this aspect,as the accused before the court has neither been charged nor punished for that offence. the court examined the provisions of s.2 of the act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of section 304-b of the code. the court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the indian law is entitled to the protection of art.20 of the constitution of india as well as has a presumption of innocence in his favour. in other words,the rule of law requires a person to be innocent till proved guilty. the concept of deeming fiction is hardly applicable to the criminal jurisprudence. in contradistinction to this aspect,the legislature has applied the concept of deeming fiction to the provisions of section 304-b. where other ingredients of section 304-b are satisfied,in that event,the husband or all relatives shall be deemed to have caused her death. in other words,the offence shall be deemed to have been committed by fiction of law. once the prosecution proves its case with regard to the basic ingredients of section 304-b,the court will presume by deemed fiction of law that the husband or the relatives complained of,has caused her death. such a presumption can be drawn by the court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304-b of the code. the ingredients of section 304b read with section 498a ipc are completely satisfied in the present case. by a deeming fiction in law,the onus shifts on to the accused to prove as to how the deceased died. it is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. the accused did not care to explain as to how the death of his wife occurred. denial cannot be treated to be the discharge of onus. onus has to be discharged by leading proper and cogent evidence. it was expected of the accused to explain as to how and why his wife died,as well as his conduct immediately prior and subsequent to the death of the deceased. maintaining silence cannot be equated to discharge of onus by the accused. in the present case,the prosecution by reliable and cogent evidence has established the guilt of the accused. there being no rebuttal thereto,there is no occasion to interfere in the judgments of the courts under appeal. the offences having been proved against the accused and keeping in view the attendant circumstances,the court was of the considered view that ends of justice would be met,if the punishment awarded to the appellants is reduced.

one lakshminarayana iyer a hindu brahmin who owned considerable properties in the tirunelveli district died on 13th december 1924 leaving him surviving a widow ranganayaki and a married daughter ramalakshmi. ramalakshmi had married the plaintiff and had a number of children from him. they were all alive in december 1924 when lakshminarayana died. before his death he executed a will on 16th november 1924 the construction of which is in controversy in this appeal. by this will he gave the following directions after my lifetime you the aforesaid ranganayaki amminal my wife shall till your lifetime enjoy the aforesaid entire properties the outstandings due to me the debts payable by me and the chit amounts payable by me. after your lifetime ramalakshmi ammal our daughter and wife of rama ayyar avergal of melagaram village and her heirs shall enjoy them with absolute rights and powers of alienation such as gift exchange and sale from son to grandson and so on for generations. as regards the payment of maintenance to be made to chinnanmal alias lakshmi ammal wife of my late son hariharamayyan my wife ranganayaki ammal shall pay the same as she pleases and obtain a release deed. ranganayaki entered into possession of the properties on the death of her husband. on 21st february 1928 she settled the maintenance claim of lakshmi ammal and obtained a deed of release from her by paying her a sum of rs 3350 in cash and by executing in her favour an agreement stipulating to pay her a sum of rs 240 per annum. ramalakshmi died on 25th april 1938 during the lifetime of the widow. none of her children survived her. on the 24th july 1945 the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for rs 500. on the 18th september 1945 the suit out of which this appeal arises was instituted by the plaintiff the husband and the sole heir of ramalakshmi for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. a prayer was made that the widow be restrained from alienating the other properties in her possession. on the 19th september 1945 an ad interim injunction was issued by the high court restraining the widow from alienating the properties in her possession and forming part of her husband 's estate inspite of this injunction on the 27th september 1945 she executed two deeds of settlement in favour of the other defendants comprising a number of properties. the plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well. it was averred in the plaint that ramalakshmi obtained a vested interest in the suit properties under the will of her father and plaintiff was thus entitled to maintain the suit. the defendants pleaded that the plaintiff had no title to maintain the suit that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and not less than a widow 's estate that the estate given to ramalakshmi under the will was but a contingent one and she having predeceased the widow no interest in the suit properties devolved on the plaintiff. the main issue in the suit was whether the widow took under the will an absolute estate or an estate like the hindu widow 's estate and whether the daughter 's interest therein was in the nature of a contingent remainder or whether she got in the properties a vested interest. the subordinate judge held that the widow took under the will a limited life interest and not an absolute estate or even a widow 's estate under hindu law and that the daughter got there under a vested interest in the properties to which the plaintiff succeeded on her death. in view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would not endure beyond her lifetime. the question as to the validity of the alienations was left undetermined. the unsuccessful defendants preferred an appeal against this decree to the high court of judicature at madras. during the pendency of the appeal the widow died on 14th february 1948. the high court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the construction of the will. leave to appeal to the supreme court was granted and the appeal was admitted on the 27th november 1951. the substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman 's estate under hindu law or merely a limited life estate in the english sense of that expression. it was not contested before us that a hindu can by will create a life estate or successive life estates or any other estate for a limited term provided the donee or the persons taking under it are capable of taking under a deed or will. the decision of the appeal thus turns upon the question whether the testator 's intention was to give to his widow ail ordinary life estate or an estate analogous to that of a hindu widow. at one time it was a moot point whether a hindu widow 's estate could be created by will it being an estate created by law but it is now settled that a hindu can confer by means of a will oil his widow the same estate which she would get by inheritance. the widow in such a case takes as a demise and not as an heir. the court 's primary duty in such cases is to ascertain from the language employed by the testator what were his intentions keeping in view the surrounding circumstances his ordinary notions as a hindu in respect to devolution of his property his family relationships etc. in other words to ascertain his wishes by putting itself so to say in his armchair. considering the will in the light of these principles it seems to us that lakshminarayan iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation gift exchange and sale from generation to generation. he wished to make his daughter a fresh stock of descent so that her issue male or female may have the benefit of his property. they were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. in express terms he conferred on his daughter powers of alienation byway of gift exchange sale but in sharp contrast to this on his widow he conferred no such powers. the direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. though no restraint in express terms was put on her powers of alienation in case of necessity even that limited power was not given to her in express terms. if the testator had before his mind 's eye his daughter and her heirs as the ultimate beneficiaries of his bounty that intention could only be achieved by giving to the widow a limited estate because by conferring a full hindu widow 's estate on her the daughter will only have a mere spes successions under the hindu law which may or may not mature and under the will her interest would only be a contingent one in what was left indisposed of by the widow. it is significant that the testator did not say in the will that the daughter will enjoy only the properties left indisposed of by the widow. the extent of the grant so far as the properties mentioned in the schedule are concerned to the daughter and the widow is the same. just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. they could not enjoy the same properties in the manner directed if the widow had a full hindu widow 's estate and had the power for any purpose to dispose of them and did so. if that was the intention the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. the widow can not be held to have been given a full hindu widow 's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes whether in express terms or by necessary implication. as above pointed out admittedly power of alienation in express terms was not conferred on her. it was argued that such a power was implicit within the acts she was authorized to do that is to say when she was directed to pay the debts and settle the maintenance of ramalakshmi it was implicit within these directions that for these purposes if necessity arose she could alienate the properties. this suggestion in the surrounding circumstances attending the execution of this will can not be sustained. the properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of rs 3350 in cash to the daughter in law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. it is not shown that she alienated a single item of immovable property till the year 1945 a period of over 21 years after the death of her husband excepting one which she alienated in the year 1937 to raise a sum of rs 1000 in order to buy some land. by this transaction she substituted one property by another. for the purpose of her maintenance for payment of debts etc and for settling the claim of the daughter in law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. in this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes can not be raised. in our opinion even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate this power would fall far short of the powers that a hindu widow enjoys under hindu law. under that law she has the power to alienate the estate for the benefit of the soul of the husband for pilgrimage and for the benefit of the estate and for other authorized purposes. it can not be said that a hindu widow can only alienate her husband 's estate for payment of debts to meet maintenance charges and for her own maintenance. she represents the estate in all respects and enjoys very wide power except that she can not alienate except for necessity and her necessities have to be judged on a variety of considerations. we therefore hold that the estate conferred on ranganayaki ammal was more like the limited estate in the english sense of the term than like a full hindu widow 's estate in spite of the directions above mentioned. she had complete control over the income of the property during her lifetime. but she had no power to deal with the corpus of the estate. and it had to be kept intact for the enjoyment of the daughter. though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time. and she thus got an interest in it on the testator 's death. she was given a present right of future enjoyment in the property. according to jarman jarman on wills the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator 's properties on his death. it was strenuously argued by mr k section krishnaswami iyengar that lakshminarayana iyer was a brahmin gentleman presumably versed in the sastras living in a village in the southernmost part of the madras state that his idea of a restricted estate was more likely to be one analogous to a hindu woman 's estate than a life estate a understood in english law wherein the estate is measured by use and not by duration and that if this will was construed in the light of the notions of lakshminarayana iyer it should be held that the widow got under it a hindu widow 's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow. the learned counsel in support of his contention drew our attention to a number of decisions of different high courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions. this rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings. vide sasiman v shib narain 491. a 2 5. however out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them. mr krishnaswami iyengar sought to derive the greatest support for his contention from the decision in ram bahadur v jager. nath prasad 3 pat. l j 199. the will there recited that if a daughter or son was born to the testator during his lifetime such son or daughter would be the owner of all his properties but if there was no son or daughter his niece section would get a bequest of a lakh of rupees and the rest of the movable and immovable properties would remain in possession of his wife until her death and after her these would remain in possession of his niece. the remainder was disposed of in the following words if on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother 's daughter then two thirds of the movable property will belong to the son and one third to the daughter. but as regards the immovable property none shall have the lest right of alienation. they will of course be entitled to enjoy the balance left after payment of rent. this will was construed as conveying an absolute estate to the son and the daughter of the niece. it was remarked that in spite of an express restriction against alienation the estate taken by section the niece was an estate such as a woman ordinarily acquires by inheritance under the hindu law which she holds in a completely representative character but is unable to alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a hindu has in regard to devolution of his property. the provisions contained in this will bear no analogy to those we have to construe. the restraint against alienation was repugnant to both a life estate and a widow estate and was not therefore taken into account. but there were other indications in that will showing that a widow 's estate had been given. the fact that the gift over was a contingent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow 's estate. there is no such indication in the will before us. reliance was next placed on the decision in pavani subbamma v ammala rama naidu 1937. 1 m l j 268. 1936 indlaw mad 236. under the will there dealt with the widow s was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son 's daughter and the daughter 's son respectively. a suit was instituted by the son 's daughter for the recovery of possession of her share in one item of property forming part of the estate which had been sold by section the question for decision in that case was whether section was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. varadachari j held that since in the will the gift over to the grand children was of the entire properties and not a mere gift by way of defeasance it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. this decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned judge proceeded to say in deference to the view taken in maharaja of kolhapur v sundaram iyer 1925 i l r 48 mad 1 it may be possible to create an interest analogous to a woman 's estate in hindu law notwithstanding the addition of a gift over and that the estate taken by section need not necessarily be only a life estate in the english law sense of the term. we do not understand how such passing observations can be helpful in deciding the present case. assuming that it is possible to create a hindu woman 's estate not with standing the addition of a gift over the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration. the following remarks in the privy council decision in nathu ram mahajan v gangayabai 1938. 2 m l j 562 were next cited as the will gave her the right to enjoy the income of the estate during her lifetime it was evidently contemplated that she should as provided by the hindu law in the case of a widow be in possession of the estate. such casual observation made in respect of a will couched in entirely different terms can not afford much assistance in the decision of the case. in vasantharao ammannamma v venkata kodanda rao pantalu 1939. indlaw mad 621 1940. m l j 188 the next case cited a hindu testator who was a retired subordinate judge provided by his will as follows out of the aforestated ancestral lands the oneninth share to which i am entitled shall be enjoyed after my death by my wife till her death and after her death it shall pass to section son of my second elder brother deceased. my self acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. thereafter they shall pass to my grandson through my daughter. the will was construed as giving the self acquired properties ultimately to the grandsons and the estate of the daughter was likened to an estate which she would take under the law of inheritance that is a limited estate analogous to a widow 's estate. at page 193 of the report it was observed as follows the question therefore arises did he intend to confer only a life estate or a daughter 's estate. it seems to us that he meant to give a daughter 's estate rather than a life estate. he omits the words during her life with reference to the disposition in favour of the daughter. the words pass to my daughter would rather indicate that in the ordinary course of devolution the estate should pass to her that is the daughter and then to the grandsons. the words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons but on the other hand what he says is that through his daughter the estate shall pass to his grandsons. either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate through her it should pass to the grandsons in the ordinary course of devolution. if it was the daughter 's estate that was intended to be conferred there can be no question that the estate taken by the grandsons is not a vested interest. this line of reasoning which appealed to the learned judges is not of much he to us here as the language hi this will is quite different. if the same line of reasoning is adopted here the decision of the case would go against the client of mr k section k iyengar because in the will in this case the widow 's estate is delimited by the words till your lifetime. reliance was next placed on maharaja of kolhapur v sundaram iyer 1925 i l r 48 mad. that was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. there it was said that the widows of sivaji raja got the gift of a life estate very much resembling the ordinary estate of a hindu widow and with all the incidents of a widow 's estate except the liability to be divested but nevertheless a life estate rather than an estate of inheritance. these remarks do not throw much light on the point before us. the last decision referred to was the decision of the privy council in mahomed shumsool v shewukram 1874 indlaw pc 12 1874 75 2 i a 7 there a hindu inhabitant of bihar by a document of a testamentary character declared his daughter who had two daughters as his heir and after her two daughters together with their children were declared heirs and malik. one daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son the respondent in that case. in a suit by the respondent against his grandmother the daughter of the testator for a declaratory order preserving unmolested his future right and title to the said lands it was held that the daughter took an estate subject to her daughters succeeding her. in this judgment the following observations were emphasized as relevant to this enquiry it has been contended that these latter expressions qualify the generality of the former expressions and that the will taken as a whole must be construed as intimating the intention of the testator that mst. rani dhun kaur should not take an absolute estate but that she should be succeeded in her estate by her two daughters. in other words that she should take an estate very much like the ordinary estate of a hindu widow. in construing the will of a hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of hindus with respect to the devolution of property. it may be assumed that a hindu generally desires that an estate especially an ancestral estate shall be retained in his family and it may be assumed that a hindu knows that as a general rule at all events women do not take absolute estates of inheritance which they are enabled to alienate. these observations are unexceptionable but it may also be pointed out that it is open to a hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a hindu widow 's estate which she would otherwise get by inheritance. generally speaking there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. the question in every case can not be determined merely on the theory that every hindu thinks only about a hindu widow 's estate and no more. what is given must be gathered from the language of the will in the light of the surrounding circumstances. the learned counsel for the respondent followed the line adopted by mr krishnaswami iyengar. he also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour. in the first instance he placed reliance on a decision of the madras high court in ratna chetty v narayana swami chetty 19i4 26 m l j 616. there the testator made a will in favour of his wife providing inter alia. all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and mutha arunachala chetty nephew and my wife should live together amicably as of one family. if the two could not agree and live together amicably my wife would pay rs 4000 and separate him. and then my wife would enjoy all the remaining properties with absolute rights. if both of them would live together amicably muthu arunachala chetty himself would enjoy the properties which remain after the death of the widow. it was held upon the construction of the will that the nephew who lived amicably with the widow till his death had a vested interest at testator 's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. this decision only decides that case and is not very relevant in this enquiry. reference was also made to the decision of their lordships of the privy council in mst. bhagwati devi v chowdry bholonath thakur 1874 75 2 i a 256. this was a case of a gift inter vivos. the gift to mst. chunderbutti his wife was in these terms the remaining milkiut and minhai estates together with the amount of ready money articles slaves and all household furniture i have placed in the possession of mst. chunderbutti thakurain my wife to be enjoyed during her lifetime in order that she may hold possession of all the properties and milkiut possessed by me the declarant during her lifetime and by the payment of government revenue appropriate the profits derived therefrom but that she should not by any means transfer the milkiut estates and the slaves that after the death of my aforesaid wife the milkiut and household furniture shall devolve on girdhari thakur my karta adopted son. the subordinate judge held that chunderbutti got an estate for life with the power to appropriate profits and girdhari got a vested remainder on her death. the high court took a different view and held that chunderbutti took the estate in her character as a hindu widow. the privy council on this will held as follows their lordships do not feel justified upon mere conjecture of what might probably have been intended in so interpreting it as materially to change the nature of the estate taken by chunderbutti. if she took the estate only of a hindu widow one consequence no doubt would be that she would be unable to alienate the profits or that at all events whatever she purchased out of them would be an increment to her husband 's estate and the plaintiffs would be entitled to recover possession of all such property real and personal. but on the other hand she would have certain rights as a hindu widow for example she would have the right under certain circumstances if the estate were insufficient to defray the funeral expenses or her maintenance to alienate it altogether. she certainly would have the power of selling her own estate and it would further follow that girdhari would not be possessed in any sense of a vested remainder but merely of a contingent one. it would also follow that she would completely represent the estate and under certain circumstances the statute of limitations might run against the heirs to the estate whoever they might be. their lordships see no sufficient reason for importing into this document words which would carry with them all these consequences and they agree with the subordinate judge in construing it according to its plain meaning. these observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. this will was couched in different language than the will in the present case. there was a clear prohibition forbidding the widow to make any transfers of the milkiuit estates and the slaves. reference was also made to a decision of the bombay high court in lallu v jagmohan 1898 i l r 22 bom. the will there ran as follows. when i die my wife named suraj is owner of that property. and my wife has powers to do in the same way as i have absolute powers to do when i am present and in case of my wife 's death my daughter mahalaxmi is owner of the said property after that. it was held that suraj took only a life estate under the will with remainder over to mahalaxmi after her death and the bequest to mahalaxmi was not contingent on her surviving suraj but that she took a vested remainder which upon her death passed to her heirs. after considering the rival contentions of the parties we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. both the learned counsel eventually conceded that the language used in the will was consistent with the testator 's intention of conferring a life estate in the english sense as well as with the intention of conferring a hindu widow 's estate. it was however urged by mr rajah iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow that circumstance negatived the view that the testator intended to confer upon his widow a hindu widow 's estate as she would get in case of intestacy. he also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow 's estate till your lifetime and of the omission from therein of words such as nialik etc while describing the widow 's estate. mr krisbnaswami lyengar on the other hand contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them suggested a contrary intention and that the daughter 's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow and this connoted according to the notions of hindus a full hindu widow 's estate. in our judgment there is force in the contention of mr rajah iyer for reasons already stated and in the result therefore we dismiss this appeal with costs. appeal dismissed.

FACTS lakshminarayana iyer, a hindu brahmin in the tirunelveli district, died leaving him a surviving widow ranganayaki, and a married daughter ramalakshmi. ramalakshmi had married the plaintiff and had a number of children from him. they were all alive in december, 1924, when lakshminarayana died. by this will he gave the following directions "after my lifetime, you, the aforesaid ranganayaki amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties , enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. after your lifetime ramalakshmi ammal, our daughter and wife of rama ayyar avergal of melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. as regards the payment of maintenance to be made to chinnanmal alias lakshmi ammal, wife of my late son hariharamayyan, my wife ranganayaki ammal shall pay the same as she pleases, and obtain a release deed". ranganayaki entered into possession of the properties on the death of her husband. she settled the maintenance claim of lakshmi ammal and obtained a deed of release from her. ramalakshmi died during the lifetime of the widow. the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant. on the 18th september, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. a prayer was made that the widow be restrained from alienating the other properties in her possession. an ad interim injunction was issued by the high court restraining the widow from alienating the properties in her possession and forming part of her husband's estate. inspite of this injunction, she executed two deeds of settlement in favour of the other defendants comprising a number of properties. the main issue in the suit was whether the widow took under the will an absolute estate or an estate like the hindu widow's estate and whether the daughter's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest. ARGUMENT it was urged by mr. rajah iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance negatived the view that the testator intended to confer upon his widow a hindu widow's estate as she would get in case of intestacy. he also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow's estate " till your lifetime " and of the omission from therein of words such as nialik etc., while describing the widow's estate. mr. krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of hindus a full hindu widow's estate. ISSUE the construction of will is in controversy in this appeal. the substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman's estate under hindu law or merely a limited life estate in the english sense of that expression ANALYSIS the decision of the appeal turns upon the question whether the testator's intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a hindu widow. at one time it was a moot point whether a hindu widow's estate could be created by will, it being an estate created by law, but it is now settled that a hindu can confer by means of a will oil his widow the same estate which she would get by inheritance. the court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a hindu in respect to devolution of his property, his family relationships etc. considering the will in the light of these principles, it seems that lakshminarayan iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. he wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. they were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. if not, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. the widow cannot be held to have been given a full hindu widow's estate under the will unless power of alienation in express terms was not conferred on her. the properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. she represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations. though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death in ram bahadur v. jager nath prasad 3 pat. l. j. 199., will was construed as conveying an absolute estate to the son and the daughter of the niece. it was remarked that in spite of an express restriction against alienation, the estate taken by s. (the niece) was an estate such as a woman ordinarily acquires by inheritance under the hindu law which she holds in a completely representative character but is unable to alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a hindu has in regard to devolution of his property. in pavani subbamma v. ammala rama naidu (1937) 1 m.l.j. 268. 1936 ind law mad 236 the question for decision in that case was whether widow was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. varadachari j. held that since in the will the gift over to the grand-children was of the entire properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. what is given must be gathered from the language of the will in the light of the surrounding circumstances. the language used in the will was consistent with the testator's intention of conferring a life estate in the english sense as well as with the intention of conferring a hindu widow's estate.

FACTS lakshminarayana iyer, a hindu brahmin in the tirunelveli district, died leaving him a surviving widow ranganayaki, and a married daughter ramalakshmi. ramalakshmi had married the plaintiff and had a number of children from him. they were all alive in december, 1924, when lakshminarayana died. by this will he gave the following directions “ after my lifetime, you, the aforesaid ranganayaki amminal, my wife, shall till your lifetime, enjoy the aforesaid entire properties , enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me. after your lifetime ramalakshmi ammal, our daughter and wife of rama ayyar avergal of melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to grandson and so on for generations. as regards the payment of maintenance to be made to chinnanmal alias lakshmi ammal, wife of my late son hariharamayyan, my wife ranganayaki ammal shall pay the same as she pleases, and obtain a release deed". ranganayaki entered into possession of the properties on the death of her husband. she settled the maintenance claim of lakshmi ammal and obtained a deed of release from her. ramalakshmi died during the lifetime of the widow. the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant. on the 18th september, 1945, the suit out of which this appeal arises was instituted by the plaintiff, the husband and the sole heir of ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. a prayer was made that the widow be restrained from alienating the other properties in her possession. an ad interim injunction was issued by the high court restraining the widow from alienating the properties in her possession and forming part of her husband's estate. inspite of this injunction, she executed two deeds of settlement in favour of the other defendants comprising a number of properties. the main issue in the suit was whether- the widow took under the will an absolute estate or an estate like the hindu widow's estate and whether the daughter's interest therein was in the nature of a contingent remainder, or whether she got in the properties a vested interest. ARGUMENT as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance negatived the view that the testator intended to confer upon his widow a hindu widow's estate as she would get in case of intestacy. he also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow's estate " till your lifetime " and of the omission from therein of words such as nialik etc., while describing the widow's estate. the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of hindus a full hindu widow's estate. ISSUE the substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman's estate under hindu law or merely a limited life estate in the english sense of that expression. ANALYSIS the decision of the appeal turns upon the question whether the testator's intention was to give to his widow ail ordinary life, estate or an estate analogous to that of a hindu widow. the court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a hindu in respect to devolution of his property, his family relationships etc. considering the will in the light of these principles, it seems that lakshminarayan iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. he wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. they were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. if not, the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. the widow cannot be held to have been given a full hindu widow's estate under the will unless power of alienation in express terms was not conferred on her. the properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. she represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations. though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got an interest in it on the testator's death. in ram bahadur v. jager nath prasad 3 pat. l. j. 199., will was construed as conveying an absolute estate to the son and the daughter of the niece. it was remarked that in spite of an express restriction against alienation, the estate taken by s. (the niece) was an estate such as a woman ordinarily acquires by inheritance under the hindu law which she holds in a completely representative character but is unable to alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a hindu has in regard to devolution of his property. in pavani subbamma v. ammala rama naidu (1937) 1 m.l.j. 268. 1936 ind law mad 236 the question for decision in that case was whether widow was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. varadachari j. held that since in the will the gift over to the grand-children was of the entire properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. in vasantharao ammannamma v. venkata kodanda rao pantalu 1939 indlaw mad 621 (1940) m.l.j. 188, the next case cited, a hindu testator who was a retired subordinate judge provided by his will as follows: "out, of the aforestated ancestral lands, the oneninth share to which i am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to s. son of my second elder brother deceased. his self-acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. thereafter they shall pass to my grandson through my daughter." generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. what is given must be gathered from the language of the will in the light of the surrounding circumstances. the language used in the will was consistent with the testator's intention of conferring a life estate in the english sense as well as with the intention of conferring a hindu widow's estate.

whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 131e of the bombay rents hotel and lodging house rates control act1947. hereinafter called the rent act is the question involved in this appeal by special leave from the judgment and order of the high court of gujarat dated 21st of august1979. in order to decide this question it is necessary to decide the scope and ambit of section 292 of the rent act. to decide this facts must be referred to. the appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other one of which is involved in this appeal. the respondent is the landlord of the two premises and these were situated at raikhad ward ahmedabad. the respondent had alleged in the two suits that the appellant was his tenant in the suit premises which were leased out to him and before him his father for conducting the business in the name of ahmedabad fine. weaving works and according to the terms of tenancy suit premises were leased for manufacturing cloth in the name of ahmedabad fine. weaving works. the respondent had further alleged that the appellant no 1 had closed the business and he was not using the said premises for the purpose for which it was let to him. it was the case of the appellant that in respect of the suit premises he was carrying on his business with respondents. nos 24 and 5 in the name of respondent no 2m s. bharat neon signs hereinafter referred to as respondent no 2. we are concerned in this appeal with only one of the premises which was involved in suit no 553 of 1969 it is not in dispute and it never was that the premises was being used by bharat neon signs firm being the defendant no 2 in the original suit. at the time of the institution of the suit the defendants nos 2 to 5 were admittedly the partners. the present appellant who was the original defendant no 1 claimed to be a partner. the main controversy was whether the appellant had sublet the premises to defendant no 2bharat neon signs or whether he being a partner of the said firm had permitted the said firm to use the premises in question. it is clear from the evidence on record that the partnership firm had undergone metamorphosis from time to time and again ever since the year 1960 the firm bharat neon signs first originated on 4th of october1960 as many as six persons were named in the partnership firm on or about 4th of october1960 and they had executed a deed of partnership on 13th of october1960 which is exhibit 114 on the record. the said partnership deed records six persons who were to run the business in manufacturing and selling bharat neon signs tubes. however the document is silent as to where the business was started. on or about 24th of october1960. another partnership deed being exhibit 69 came to be executed among the six persons and the father of the appellant girdharlal. the document is exhibit 69 and is signed by the father of the appellant and the appellant himself also. it may be mentioned that the partnership deed exhibit 114 was executed by six persons and at that stage the appellant or his father were not partners in the firm. but thereafter when the partnership deed exhibit 69 was executed the appellant and his father joined the firm with an agreement to share profits only and their share was fixed at 0 03 paise in a rupee. there is a third partnership deed exhibit 70 which showed that the deceased tenant girdharlal had died on 1st of february1961 and so by the remaining seven partners with same terms and conditions a new partnership deed being exhibit 70 was executed on 22nd. september1961 at this time the share of the appellant was fixed at 0 03 paise in a rupee to share the profits only. in 1965 some partners retired and the remaining four partners executed a fresh partnership deed exhibit 117 on 1st. april1965 this last partnership deed was executed by the appellant and original defendants. nos 34 and 5. the main question in issue in this appeal as well as before the high court in revision was whether there was a genuine partnership at the appellant was a partner. it is true that since after 4th of october1960 the partnership firm was carrying on business in the premises in question. it is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy. for this proposition see the decision of the gujarat high court in the case of mehta jagjivan vanechand v doshi vanechand harakhchand and others. a i r 1972 gujarat 6 1970 indlaw guj 68 thakkar j of the gujarat high court as the learned judge then was held that the mere fact that a tenant entered into a partnership and allowed the premises being used for the benefit of partnership does not constitute assignment or subletting in favour of the partnership firm entitling a landlord to recover possession. this view is now concluded by the decision of this court in madras bangalore transport co west v inder singh and others1986 3 s c c 62 1986. indlaw sc 748. the trial court in the instant appeal held that there was subletting. it accordingly decreed the suit for possession instituted by the landlord. the suit inter alia was filed by the landlord on the ground of subletting. there was an appeal before the court of small causes bombay and by judgment and order delivered by the court of small causes bombay on 18th of august1977it was held that the learned trial judge had erred in passing a decree for possession on the ground of subletting change of user and breach of terms of tenancy. in the premises the appeal was allowed. it may be mentioned that the respondent no 1 is the landlord of two premises which were quite adjacent as mentioned before. the respondent plaintiff had alleged in both the suits that the appellant was his tenant in the suit premises which were leased to him for conducting his business in the name of ahmedabad fine. weaving works and according to the terms of tenancy suit the suit premises were leased for manufacturing cloth in the name of ahmedabad fine weaving works. the landlord had alleged that the appellant had closed that business and he was not using the premises in question for the purpose for which it was let to him. it was further alleged by the landlord that the appellant had unlawfully sublet the major part of the premises in question of both the suits to defendant nos 2 to 5 in the original suit and these defendants were running business in partnership for manufacturing of neon signs in the name of bharat neon signs. it was further alleged that the appellant had also unlawfully sublet one room of the suit premises to defendant no 6 in suit no 553 of 1969 who was residing in that room. for the purpose of the suit no 553 of 1969 with which the appeal is concerned it is relevant to state that the appellant had raised the contention that ahmedabad fine weaving works was not the tenant of the suit premies but the suit premises was tenanted by the father of the appellant girdharlal chimalal in 1938 and he was the original tenant of the premises and appellant subsequently joined the business of his father as a partner and the name of the partnership firm was ahmedabad fine weaving works. he has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with defendants nos 2 to 5 somewhere in 1961 to prepare neon signs and the defendants nos 2 to 5 were his partners and doing business in the suit premises. he contended further that the suit premises was with him and the defendants nos 2 to 5 had not acquired any tenancy rights in the suit premises. it is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in city civil court. it may be mentioned that by the time the revision petition came to be decided by the high court the suit had been decreed in his favour directing a dissolution of the said partnership and directing taking of the accounts. there was an appeal filed from that decree and that appeal was also dismissed and disposed of affirming the decree for the dissolution of the partnership inter se between the parties being the partners of the said firm. these facts were accepted that there was a partnership. as mentioned hereinbefore the learned trial judge consolidated both the suits and in the instant suit being no 553 of 1969 with which this appeal is concerned it was held by the learned trial judge that there was unlawful subletting. there was a decree for possession. this was set aside in appeal. the appellate court so far as the material for the present appeal is concerned held that there was no subletting and there was only carrying on of the business in partnership with defendants nos 2 to 5 in the name of bharat neon signs. therefore the first question that had to be decided by the appellate court being the court of small causes bombay and if a revision lay before the high court was whether there was any genuine partnership. the partnership deeds were there the appellant was not to share in the losses. the court of small causes came to the conclusion on an analysis of the evidence before it and the terms of the three partnership deeds referred to hereinbefore that there was a genuine partnership in law which was acted upon. the high court in revision reversed that finding. the first question therefore is whether the high court could do so in the facts of this case and secondly whether the high court was right in so doing. whether there was a partnership or not may in certain cases be a mixed question of law and fact in the sense that whether the ingredients of partnership as embodied in the law of partnership were there in a particular case or not must be judged in the light of the principles applicable to partnership. the first question therefore is what is a partnership. that has to be found in section 4 of the indian partnership act1932it says partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all emphasis supplied. section 6 of the said act reiterates that in determining whether a group of persons is or is not a firm or whether a person is or is not a partner in a firm regard shall be had to the real relation between the parties as shown by all relevant facts taken together. the following important elements must be there in order to establish partnership1 there must be an agreement entered into by all parties concerned2. the agreement must be to share profits of business and 3 the business must be carried on by all or any of the persons concerned acting for all. the partnership deeds were there entitling the petitioner to share in the partnership. it is true that in the partnership deeds the bank accounts were not to be operated by the appellant and further that irrespective of the profit. the clause of the partnership deed provided that there should be a fixed percentage of profit to be given to the partner appellant no 1 the appellant was not to share the losses. but there is nothing illegal about it. the appellant was to bring his asset being the tenancy of the premises in question for the user of the partnership. all these tests were borne in mind by the court of small causes bombay in the appeal from the decision of the learned trial judge. the appellate court had considered the partnership deeds. one point was emphasised by mr mehta learned counsel appearing for the respondents that the original first partnership deed did not mention the appellant or his father as a partner. it was in the second partnership deed that the appellant and his father joined the firm. the firm started as emphasised by mr mehta on 4th of october1960 and it was only on the 24th of october1960 the second partnership deed was executed. therefore it was emphasised that there was a gap of time when there was user by the partnership firm of the premises in question when the appellant was not a member of the firm. it was emphasised that this aspect was not considered by the court of small causes and the high court therefore was justified in interfering with the findings of the court of small causes. we are unable to agree. these deeds were there the partners were crossexamined there was no specific evidence as to from what date the firm started functioning from the particular premises in question. secondly it was emphasised by mr mehta that the partnership deed was a camouflage. it is evident from the sales tax registration and other registration certificates and licences under the shops and establishments act that the partnership was registered in the name of the appellant and the appellant was also indicated as a partner. it was so in the income tax returns and assessments. therefore it was submitted that the court of small causes committed an error of law resulting in miscarriage of justice. it was submitted by mr mehta that once it was accepted that the partnership deed was a mere camouflage the other subsequent acts and conducts were merely ancillary and were put in a formal way. but the question is from the three deeds itself which were examined in detail by the court of small causes and which were re examined by the high court could it be said unequivocally that there was no partnership. the deeds gave the appellant the right to share the profits and made him agent for certain limited purposes of the firm and there was evidence that the partnership deeds were acted upon. there was evidence of suit of dissolution of the partnership where none of the partners took the plea that it was a false or a fictitious document. though the decree in the dissolution suit was not binding in these proceedings inter se between the parties as partners it is a piece of evidence which can not be wholly ignored. all these factors were present before the court of small causes. these were reappraised by the high court. mehta. that in the partnership deed which is not necessary to recite the terms the petitioner was completely excluded in operating the bank accounts etc. there is nothing inherently illegal or improbable making a provision of such a type. in the eye of law such a clause is really non sequitur or neutral proving neither the existence nor non existence of a genuine firm. the first partnership deed which is exhibit 114 is dated 13th october1960 it recited that the partnership firm should be presently started at ahmedabad and the same should later be started in another city. in this the appellant was not a partner. exhibit 69 at page 136 of volume ii of the paper book is a partnership deed wherein girdharlal the father of the appellant no 1 and the appellant no 1 joined as partners. it recited that the partnership started from 4th of october1960 at ahmedabad. it was registered in the name of 7th and 8th partners girdharlal who was the appellant and his father. it was recited that the work of the partnership would be done by the parties of the fourth fifth sixth seventh and eighth as per advice and instructions of the first second and third. all the work had been done by some of the partners of which appellants were not parties and that they had to do the said work as per instructions of the other partners. clauses 6 and 7 of the said partnership deed recited inter alia as follows 6 the year of accounts of our partnership shall be aso vadi 30th day i e diwali and the first account year is decided to be the aso vadi 30th day of samvat year 2017 while settling accounts at the close of the year33 amount from the sum which may remain as net profit after deducting all expenditures viz interest discount rent of the shop rent of the godown insurance brokerage travelling telegrams postage salaries of employees etc shall be carried to reserve fund and thereafter in the sum that remains as net profit the shares of us the partners have been fixed as under 7 while settling accounts at the close of the year if the sum less than rs 1500 falls to the 0 03 shares of the partners of the seventh and eighth parts the amount falling short has to be debited towards the head of expenditure and rs 1500 fifteen hundred only have to be paid in full to each of them two and in those circumstances or if there be loss the parties of the seventh or eighth parts have not been held liable therefore and in the year or losses it has been decided to pay rs 1500 fifteen hundred only to each of them after debiting the same towards the head of expenditure and in the year of losses nothing has to be carried to the reserve fund and the loss has to be borne by us to parties first to sixth parts in the following proportion 8 clause 8 empowered the operating of the bank accounts by partners other than the appellant and his father. we find intrinsically nothing improbable. it is embodied in the deeds the functioning of the partnership. the third partnership which is dated 22nd of september1961 also indicates as parties of sixth part the name of the appellant. the relevant portion of the partnership deed reads as follows to wit the parties of the first to sixth parts out of us deceased khristi girdharbhai chimanlal and shah virchand keshavji had jointly started the business of manufacturing and selling neon signs tubes in partnership in ahmedabad from 4 10 1960in the name and style of bharat neon signs. however on account of the death of khristi girdharbhai chimanlal on 1 2 61 and other reasons the said partnership was dissolved from 8 9 61 thereafter we the parties from the first to seventh part have after purchasing at its cost price all the debts and dues goods stock etc together with goodwill of the dissolved partnership started manufacturing and selling of neon signs tubes in partnership from 9 9 61 we the parties of all the seven parts execute the deed of the said partnership to day. i e 22 9 61 the terms and conditions. thereof are as under. 1 the entire work of our partnership has to be carried out in the name of bharat neon signs. 2 the work to be carried out by our partnership is of manufacturing and selling neon signs tubes and of obtaining orders therefore. 3 whatever moneys that may be required to be invested in our partnership are to be invested by the parties of the first second third fourth and seventh parts out of us and the interest at the rate of 712 per cent per annum has to be paid for the moneys that may be invested in this partnership. we are of the opinion that these were evidence that these terms were acted upon. there was nothing intrinsically wrong in law in constituting a partnership in the manner it was done. it was contended by mr mehta that there was no agency reading the partnership deeds as we have read that conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership. this is also not inconsistent with treating the rent of the firm in the context of the total expenditure of the firm. in any event all these factors were considered by the court of small causes bearing in mind the correct legal principles. the high court on a reappraisal of these very evidence came to the conclusion that the partnerships were camouflages and were not acted upon and in fact and in reality the partnership firm was a sub tenant of the appellant herein. the question is can the high court do so in law. the power of the high court to revise the order is contained in section 292 of the bombay rent act as applicable at the relevant time to gujarat the said provision reads as follows 292. no further appeal shall lie against any decision in appeal under sub section 1 but the high court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit. the ambit and power of revision generally and in particular with respect to the provisions with which we are concerned have from time to time come up for consideration by this court. this court in hari shankar v rao girdhari lal chowdhury1962 1 suppl. scr 933 1961 indlaw sc 157 had to consider section 351 of the delhi ajmer rent corntrol act1952. the said section reads as follows 351. the high court may at any time call for the record of any case under this act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit. it was held in the majority judgment by hidayatuiiah j as the learned chief justice then was that though section 35 of the delhi and ajmer rent control act was worded in general terms but it did not create a right to have the case re heard. this court emphasised that the distinction between an appeal and revision is a real one. a right to appeal carries with it right of re heating on law as well as fact. unless the statute conferring the right to appeal limits the re hearing in some way. the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law. the expression according to law in section 35 of the said act referred to the decision as a whole and was not to be equated to errors of law or of fact simpliciter. this court was of the view that what the high court could see is that there has been no miscarriage of justice and that the decision was according to law in the sense mentioned. kapur j who delivered a separate judgment however observed that the power under section 351 of the said act of interference by the high court is not restricted to a proper trial according to law or error in regard to onus of proof or proper opportunity of being heard. it is very much wider than that when in the opinion of the high court the decision is erroneous on the question of law which affects the merits of the case or decision was manifestly unjust the high court is entitled to interfere. the revisional authority could ensure that there was no miscarriage of justice and the principles of law have been correctly borne in mind the facts had been properly comprehended in that light. if that was done in a particular case then the fact that the revisional authority or the high court might have arrived to a different conclusion is irrelevant. this view had also been expressed in the decision of this court in puranchand v motilal1963. supp 2 s c r 906 1962 indlaw sc 455. this principle was reiterated in krishnawati v hans raj1974 2 s c r 524 1973 indlaw sc 208 which was dealing with section 392 of the delhi rent control act1958 in second appeal. it was observed that under section 392 of the said act the high court could interfere in second appeal only if there was a substantial question of law. in that case the question whether the appellant was legally married no finding was necessary in the eviction suit. it was sufficient for the rent court to proceed on the finding that the appellant and s were living together as husband and wife whether they were legally married or not. it was further held that whether there was subletting was not a mixed question of law and fact. in phiroze bamanji desai v chandrakant m patel ors 1974 3 scr 267 1974 indlaw sc 282 the question involved was whether there was reasonable and bona fide requirement of premises for personal use and occupation as also the question of greater hardship under the bombay rent act and the ambit and scope of the power of section 293 of the said act with which we are concerned came up for consideration. bhagwati j as. the learned chief justice then was referred with approval the observations of hidayatullah j referred to hereinbefore in hari shankar 's case. 1961 indlaw sc 157 supra bhagwati j observed that the ambit of section 351 of the delhi ajmer rent control act which fell for consideration in hari shanker 's case 1961 indlaw sc 157 supra was the same as section 293 of the bombay rent act and therefore he expressed the opinion that the high court could interfere only if there was miscarriage of justice due to mistake of law. we must take note of a decision in the case of m s kasturbhai ramchand panchal brothers and others v firm of mohanlal nathubhai and others air 1969 gujarat 110 1967 indlaw guj 57upon which the high court had placed great reliance in the judgment under appeal. there the learned judge relying on section 292 of the said act held that the revisional power with which the high court was vested under section 292 was not merely in the nature of jurisdictional control. it extended to corrections of all errors which would make the decision contrary to law. the legislature the learned judge felt further empowered high court in its revisional jurisdiction to pass such order with respect thereto as it thought fit. the power according to the learned judge was of the widest amplitude to pass such orders as the court thought fit in order to do complete justice. he dealt with the human problem under section 132 of bombay rent act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opinion that the court should have such wide field. the jurisdiction of high court is to correct all errors of law going to the root of the decision which would in such cases include even perverse findings of facts perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. in this view in our opinion the ambit of the power was expressed in rather wide amplitude. as we read the power the high court must ensure that the principles of law have been correctly borne in mind. secondly the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. it must be such a decision which no reasonable man could have arrived at. lastly such a decision does not lead to a miscarriage of justice. we must however guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the court of small causes has taken a particular view. if a possible view has been taken the high court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view. the fact that the high court would have taken a different view is wholly irrelevant. judged by that standard we are of the opinion that the high court in this case had exceeded its jurisdiction. in the case of punamchandra revashankar joshi v ramjibhai maganlal gujarat law reporter. 1966the gujarat high court after dealing with the gujarat amendment act xviii of 1965 observed that the legislature has not intended to equate the ambit of the power with the one exercised in an appeal. the authority vested in the high court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further. the amending provision therefore only related to procedure and not to any rights of the parties. this court in the case of bhai chand ratanshi v laxmishanker tribhavan1982 1 rent control journal 2421981. indlaw sc 244 observed that where lower courts applied their minds properly in deciding a matter under section 132 of the bombay rent act the high court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence under section 292 of the act as substituted by the gujarat act 18 of 1965 this court reiterated that although the high court had wider power than that which could be exercised under section 115 of c p c yet its revisional power could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. the high court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence. in the instant case the basic question is whether keeping in background the partnership deeds referred to hereinbefore and the facts that came to light was there partnership or not. sharing of profits and contributing to losses were not the only elements in a partnership existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact depending upon the varying circumstances in different cases. this view was reiterated by chief justice beaumont in chimanram motilal and another v jayantilal chhaganlal and another a i r 1939 bombay 410 1939 indlaw mum 155 ramaswami j in mohammed musa sahib dead and others v n k mohammed ghouse sahib and another a i r 1959. madras 379 1958 indlaw mad 820 observed that whether the relation of partnership between two or more persons does or does not exit must depend on the real intention and contract of the parties and not merely on their expressed intention. he also referred to section 4 of the partnership act about the principles of partnership namely1 there must be agreement entered into by all the persons concerned 2 the agreement must be to share the profits of a business and 3 the business must be carried on by all or any of the persons concerned acting for all. in the instant case judged by the aforesaid principles it is possible to hold that there was a partnership of which the appellant was a partner. the court of small causes considered these principles evaluated the evidence and held that there was in fact and in law a partnership. such a view was not an impossible one or a perverse one. if that was so there was nothing that could be clone about such a view within the ambit and scope of the power of section 292 of the rent act. we may mention that in gundalapalli rangamannar chetty v desu rangiah and others a i r 1954. madras 182subba rao j as the learned chief justice then was held that there can not be a subletting unless the lessee parted with legal possession. the mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub lease. in the light of the aforesaid principles and the facts that have emerged we are of the opinion that the high court exceeded its jurisdiction under section 292 of the rent act. we are further of the opinion that the court of small causes was right in the view it took. and it was a possible view to take. in the result the appeal is allowed and the judgment and order of the gujarat high court dated 21st of august1979 are set aside. the order and judgment of the court of small causes ahmedabad dated 18th of august1977 are restored. the suit for possession is accordingly dismissed. the appellant herein is entitled to the costs throughout. appeal allowed. appeal allowed.

FACTS the appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other,one of which is involved in this appeal. the respondent who is the landlord of the two premises leased out to the appelllant and father, for conducting the business in the name of ahmedabad fine. the appellant no.1 had closed the business and he was not using the said premises for the purpose for which it was let to him. it was the case of the appellant that in respect of the suit premises he was carrying on his business with respondents. nos.2,4 and 5 in the name of respondent no.2,m/s. bharat neon signs. the main controversy was whether the appellant had sublet the premises to defendant no.2,bharat neon signs or whether he being a partner of the said firm had permitted the said firm to use the premises in question. partnership deed records six persons who were to run the business in manufacturing and selling bharat neon signs tubes. on or about 24th of october,1960. another partnership deed being exhibit-69 came to be executed among the six persons and the father of the appellant girdharlal ARGUMENT he has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with defendants nos.2 to 5 somewhere in 1961 to prepare neon signs and the defendants nos.2 to 5 were his partners and doing business in the suit premises. he contended further that the suit premises was with him and the defendants nos.2 to 5 had not acquired any tenancy rights in the suit premises. it is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in city civil court. it was contended by mr. mehta that there was no agency; reading the partnership deeds as we have read that conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership. ISSUE whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 13(1)(e) of the bombay rents,hotel and lodging house rates control act,1947. hereinafter called the 'rent act') is' the question involved in this appeal by special leave from the judgment and order of the high court of gujarat dated 21st of august,1979. the main question in issue in this appeal as well as before the high court in revision was whether there was a genuine partnership at the appellant was a partner. ANALYSIS the partnership deed exhibit-114 was executed by six persons and at that stage the appellant or his father were not partners in the firm. but thereafter when the partnership deed exhibit-69 was executed the appellant and his father joined the firm with an agreement to share profits only and their share was fixed at 0.03 paise in a rupee. there is a third partnership deed exhibit-70 which showed that the deceased tenant girdharlal had died on 1st of february,1961 and so by the remaining seven partners with same terms and conditions,a new partnership deed being exhibit-70 was executed on 22nd. september,1961.at this time the share of the appellant was fixed at 0.03 paise in a rupee to share the profits only. it is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy. for this proposition see the decision of the gujarat high court in the case of mehta jagjivan vanechand v. doshi vanechand harakhchand and others. a.i.r.1972 gujarat 6 1970 indlaw guj 68. section 4 of the indian partnership act,1932,it says "partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all" the terms and conditions in the partnership deed are as under. 1) the entire work of our partnership has to be carried out in the name of "bharat neon signs. 2) the work to be carried out by our partnership is of manufacturing and selling neon signs tubes and of obtaining orders therefore. 3) whatever moneys that may be required to be invested in our partnership,are to be invested by the parties of the first,second,third,fourth and seventh parts out of us and the interest at the rate of 71/2 per cent per annum has to be paid for the moneys that may be invested in this partnership. we are of the opinion that these were evidence that these terms were acted upon. there was nothing intrinsically wrong in law in constituting a partnership in the manner it was done. a right to appeal carries with it right of re-heating on law as well as fact. unless the statute conferring the right to appeal limits the re-hearing in some way. the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law. the jurisdiction of high court is to correct all errors of law going to the root of the decision which would,in such cases,include even perverse findings of facts,perverse in the sense that no reasonable person,acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. in this view in our opinion the ambit of the power was expressed in rather wide amplitude. as we read the power,the high court must ensure that the principles of law have been correctly borne in mind. secondly,the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. it must be such a decision which no reasonable man could have arrived at. lastly,such a decision does not lead to a miscarriage of justice. we must,however,guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the court of small causes has taken a particular view. if a possible view has been taken,the high court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view. the fact that the high court would have taken a different view is wholly irrelevant. the authority vested in the high court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further. the amending provision,therefore,only related to procedure and not to any rights of the parties. sharing of profits and contributing to losses were not the only elements in a partnership,existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact,depending upon the varying circumstances in different cases. this view was reiterated by chief justice beaumont,in chimanram motilal and another v. jayantilal chhaganlal and another,a.i.r.1939 bombay 410 1939 indlaw mum 155.ramaswami,j.in mohammed musa sahib (dead) and others v. n.k.mohammed ghouse sahib and another,a.i.r.1959. madras 379 1958 indlaw mad 820 observed that whether the relation of partnership between two or more persons does or does not exit must depend on the real intention and contract of the parties and not merely on their expressed intention in the instant case judged by the aforesaid principles of section 4 of partnership act,it is possible to hold that there was a partnership of which the appellant was a partner. the court of small causes considered these principles,evaluated the evidence and held that there was in fact and in law a partnership. such a view was not an impossible one or a perverse one. if that was so,there was nothing that could be clone about such a view,within the ambit and scope of the power of section 29(2) of the rent act. STATUTE the power of the high court to revise the order is contained in section 29(2) of the bombay rent act as applicable at the relevant time to gujarat

FACTS the appellant claimed to be the tenant in respect of the two premises which are quite adjacent to each other,one of which is involved in this appeal. the respondent who is the landlord of the two premises leased out to the appelllant and father, for conducting the business in the name of ahmedabad fine. the appellant no.1 had closed the business and he was not using the said premises for the purpose for which it was let to him. it was the case of the appellant that in respect of the suit premises he was carrying on his business with respondents. nos.2,4 and 5 in the name of respondent no.2,m/s. bharat neon signs. the main controversy was whether the appellant had sublet the premises to defendant no.2,bharat neon signs or whether he being a partner of the said firm had permitted the said firm to use the premises in question. partnership deed records six persons who were to run the business in manufacturing and selling bharat neon signs tubes. on or about 24th of october,1960. another partnership deed being exhibit-69 came to be executed among the six persons and the father of the appellant girdharlal. the landlord had alleged that the appellant had closed that business and he was not using the premises in question for the purpose for which it was let to him. it was further alleged by the landlord that the appellant had unlawfully sublet the major part of the premises in question of both the suits to defendant nos.2 to 5 in the original suit and these defendants were running business in partnership for manufacturing of neon signs in the name of bharat neon signs. ARGUMENT he has stated further that the suit premises were to be used for business and he could use it for any business and he joined in partnership with defendants nos.2 to 5 somewhere in 1961 to prepare neon signs and the defendants nos.2 to 5 were his partners and doing business in the suit premises. the suit premises was with him and the defendants nos.2 to 5 had not acquired any tenancy rights in the suit premises. it is further stated that he had filed a civil suit to dissolve the partnership and to take account and his suit was pending in city civil court. there was no agency, reading the partnership deeds as we have read that conclusion does not emanate from position appearing debiting the fixed amount payable to the appellant in the expenses account which also is not inconsistent with partnership. ISSUE whether the appellant herein and his father had sublet the premises in question in or about 1960 in terms of section 13(1)(e) of the bombay rents,hotel and lodging house rates control act,1947 (hereinafter called the 'rent act') is the question involved in this appeal by special leave from the judgment and order of the high court of gujarat dated 21st of august,1979. ANALYSIS the partnership deed exhibit-114 was executed by six persons and at that stage the appellant or his father were not partners in the firm. but thereafter when the partnership deed exhibit-69 was executed the appellant and his father joined the firm with an agreement to share profits only and their share was fixed at 0.03 paise in a rupee. there is a third partnership deed exhibit-70 which showed that the deceased tenant girdharlal had died on 1st of february,1961 and so by the remaining seven partners with same terms and conditions,a new partnership deed being exhibit-70 was executed on 22nd. september,1961.at this time the share of the appellant was fixed at 0.03 paise in a rupee to share the profits only. it is well settled that if there was such a partnership firm of which the appellant was a partner as a tenant the same would not amount to subletting leading to the forfeiture of the tenancy. section 4 of the indian partnership act,1932,it says "partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all" the terms and conditions in the partnership deed are as under: 1) the entire work of our partnership has to be carried out in the name of "bharat neon signs. 2) the work to be carried out by our partnership is of manufacturing and selling neon signs tubes and of obtaining orders therefore. 3) whatever moneys that may be required to be invested in our partnership,are to be invested by the parties of the first,second,third,fourth and seventh parts out of us and the interest at the rate of 71/2 per cent per annum has to be paid for the moneys that may be invested in this partnership. the court was of the opinion that these were evidence that these terms were acted upon. a right to appeal carries with it right of re-heating on law as well as fact. unless the statute conferring the right to appeal limits the re-hearing in some way. the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law. the jurisdiction of high court is to correct all errors of law going to the root of the decision which would,in such cases,include even perverse findings of facts,perverse in the sense that no reasonable person,acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. in this view in our opinion the ambit of the power was expressed in rather wide amplitude. the high court must ensure that the principles of law have been correctly borne in mind. secondly,the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. it must be such a decision which no reasonable man could have arrived at. lastly,such a decision does not lead to a miscarriage of justice. if a possible view has been taken,the high court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view. the fact that the high court would have taken a different view is wholly irrelevant. the authority vested in the high court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further. the amending provision,therefore,only related to procedure and not to any rights of the parties. sharing of profits and contributing to losses were not the only elements in a partnership,existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact,depending upon the varying circumstances in different cases. this view was reiterated by chief justice beaumont,in chimanram motilal and another v. jayantilal chhaganlal and another,a.i.r.1939 bombay 410 1939 indlaw mum 155.ramaswami,j.in mohammed musa sahib (dead) and others v. n.k.mohammed ghouse sahib and another,a.i.r.1959. madras 379 1958 indlaw mad 820 observed that whether the relation of partnership between two or more persons does or does not exit must depend on the real intention and contract of the parties and not merely on their expressed intention in the instant case judged by the aforesaid principles of section 4 of partnership act,it is possible to hold that there was a partnership of which the appellant was a partner. the court of small causes considered these principles,evaluated the evidence and held that there was in fact and in law a partnership. such a view was not an impossible one or a perverse one. if that was so,there was nothing that could be clone about such a view,within the ambit and scope of the power of section 29(2) of the rent act. STATUTE section 29(2) of the bombay rents act states that no further appeal shall lie against any decision in appeal under sub-section (1) but the high court may,for the purpose of satisfying itself that any such decision in appeal was according to law,call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.

we have heard learned counsel on both sides. the admitted facts are that the respondents through their agents had registered trade mark raleigh and other trade marks 12 marks under the indian merchandise marks act1889 4 of 1989 and the trade marks act1940 5 of 1940 the trade and merchandise marks act1958 43 of 1958 for short the act which came into force with effect from october 31958 has repealed the predecessor act and now the act is in operation. the respondents entered into an agreement with sudhir kumar sen on november 31948 to render technical know how to the indian company to be formed which would manufacture bicycles and market them under raleigh 's indian trade marks. pursuant thereto a company called sen raleigh limited came into existence which manufactured cycles with technical assistance by the respondents raleigh industries of u k and marketed the bicycles with a brand name and trade marks belonging to the respondents. on april 241954sen. raleigh was recorded as permitted users of the trade marks. by agreement dated december 291962sen raleigh and the respondents agreed that sen raleigh was registered user for further period up to 1976 sen raleigh was taken over by the government of india on september 81975 under the idr act and the government took over the management of sen raleigh limited. the agreement dated december 291962 was modified and the respondents were given option to terminate the agreement. an agreement dated december 201976 was entered into between the appellant as registered user and the respondent in respect of 12 trade marks for a period of 5 years. on march 281978joint application by sen raleigh and the appellant duly signed by the respondent as proprietor and sen raleigh limited as registered user came to be made before the registrar of trade marks. on october 241980sen raleigh was nationalized and got vested in the appellant corporation by publication of the notification under idr act. on march 51982the respondent wrote a letter to the appellant that in the absence of a new agreement they were instructing their advocate to prevent the appellant by restraint proceedings to use the trade mark effective from april 11982. on march 241982the appellant made an application under sections 3246 and 56 of the act against the respondents in the high court of calcutta in suit no 26692 pleading inter alia that the respondents had failed to provide technical assistance by passing the technical know how to sen raleigh after november 11976 neither the appellant nor sen raleigh were registered users of the trade mark after november 11976. u s 482 of the act up to the date of one month before filing that rectification application. a continuous period of 5 years or longer had passed and the trade mark had not been bona fide used by the respondent. having regard to the extended nature of non user of the concerned trade mark after november 11976any further use of the said trade marks by the respondents was likely to deceive and cause confusion to the trade and public alike in india etc. simultaneously an application for registration of three trade marks an their favour was filed by the appellant on march 251982. by proceedings dated june 131984the registrar of trade marks informed the appellant that the registered user 's applications were abandoned since the appellant failed to comply with the statutory requirements. the learned single judge dismissed the application by his judgment dated september 131990 holding inter alia that any proprietor mentioned in s 461b of the act extends to bona fide user other than registered users. special circumstances as a defense were available to the respondent for non user even after 1979the supply technical know how by the respondent was not totally absent. after termination of the collaboration and user agreement between the appellant and the respondents it was likely to cause confusion and deception amongst the trade and public. the conduct of the respondents was not violative of s 32b and c the court in those circumstances declined to rectify the trade mark and strike it off from the register of trade marks. on appeal the division bench in appeal no 1391 confirmed the same holding that on and from october 251980the respondent had allowed and permitted the appellant to manufacture bicycles etc according its specifications and to pass off the goods under their trade marks. though the collaboration and registered user agreements stood expired from october 311981no agreement came to be executes nor continued to use the specifications on technical know how. there is no specific bar for an unregistered lincesee to use registered trade mark so long as there is a connection in the course of trade between the licenser and the lincesee. the appellant was unable to prove that there had been no such user of the trade mark for a continuous period of 61 months or longer and the lack of bona fide intention the expression by any registered proprietors in s 461b should not be restricted to user by proprietor or registered user who should also include bona fide or authorized users the legislature did not intend to register proprietor to be deprived of their property at the instance of user whose use is unregistered. the expression therefore should not be restricted to user by the proprietor himself or any registered user but should also take into account bona fide authorized user. non registration of the user agreement by sen raleigh and the appellant was due to the default of the latter. the appellant had not taken any steps to withdraw registered user applications and as such should not be permitted to take such a contradictory stand of applying for rectification at the same time. the power u s 46 is discretionary. in view of the appellant 's conduct it was taking advantage of its own wrong. the discretion therefore was not to be extended in favour of the appellant. thus this appeal by special leave. shri raju ramchandran learned senior counsel for the appellant raised three fold contentions. it is his pivotal contention that undisputedly when the respondent was not in urge of trade mark as a registered proprietor or its agent sen raleigh as permitted user for a period of 5 years immediately preceding the date of the application u s 46 for removal of the trade mark from the register there was no bona fide user thereof in relation to those goods by the proprietor himself. the respondents admittedly did not use the same. the appellant can not be said to be either the proprietor of the trade mark since 1976since the agreement lapsed or permitted user the high court therefore was wrong in holding that 5 years period had not lapsed. the harmonious construction should be put up in such a way that s 482 and s 466 by of the act could be permitted to have their full play in their operational structure. the construction put up by the high court renders sub s 2 of s 48 otiose or surplus age which interpretation is impermissible. it is contended that the registered user must be understood to be the user by the proprietor or authorized user registered under section 48 the period of 5 years should be computed from that date of expiry of registered user. the division bench therefore was wrong in its conclusion that the appellant has failed to establish it. on the other hand it is for the respondent to prove the same. he further contended that the special circumstances enumerated in sub s 3 of s 46 must be such that the respondents had intended to use the registered trade mark. for over a long period the trade mark was not used by the respondents as its registered proprietor. the respondents did not prove that they were prevented to use the same for 5 years or more preceding the date of the application. the burden is on tile respondents to prove that non user was due to special circumstance of the trade and not due to some other cause which would have operated whether special circumstances had arisen or not since the respondents were not using the trade mark since april 201954the plea of special circumstances is not available to the respondents. the division bench or the learned single judge did not record any finding as to the period up to which the bicycles could be imported into india and the period during which the ban was imposed but for which the respondent had an intention to import bicycles but were prevented to do so due to the ban. in the absence of such a findings the high court was wrong in law in refusing to rectify the trade mark and striking it off the register. the court while exercising its discretion u s 46 should look into not only commercial interest of the parties but also public interest. in normal circumstances when it is established that the trade mark was not used either by the registered proprietor or the permitted user the public interest of supply of the quality of the goods marketed by the appellant should be taken into factual consideration for removal of the trade mark from the register. shri ashok desai learned senior counsel for respondents resisted the contentions. according to the learned counsel the respondents have collaboration agreement with sen raleigh which was taken over by the government under idr act and the appellant came to manufacture with the technical know how supplied by the respondents the raleigh bicycles under the trade mark registered by the respondents in the register of the registrar under the act. the appellant was using the same as an agent. the operation of s 482 must be construed in such a way that the bona fide user even by a non registered user so long as there exist a rational connection between the proprietor of the trade mark and passes off the goods in the market manufactured by the appellant is construed to be a bona fide user for and on behalf of the registered proprietor namely the respondents. admitted position is that the respondent being the registered proprietor until it is proved that its trade mark was not used to pass off the goods manufactured by the appellant and that the appellant had discontinued the user and 5 years lapsed thereafter the non use of the trade mark continues thereafter the rectification application u s 46 1b would be ordered. in view of the prohibition to import bicycles the respondent was prevented to use the trade mark but by collaboration agreement it was continuing to use the trade mark by the permitted user. the special circumstance is that the appellant filed an application for registration u s 481 and continued it till it was abandoned. it would also be considered as a special circumstance for non user. the discretion exercised by the court must be judged in the light of the facts and circumstances the appellant having used the trade mark it does not lie in the mouth of the appellant to contend that he is not a permitted user or a bona fide user of the trade mark. in view of the diverse contentions the question arises whether the high court was right in refusing to rectify and strike off the trade marks of the respondents from the register of trade marks. s 461b reads as under. 46 removal from register and imposition of limitations on ground of non use 1. subject to the provisions of section 47a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a high court or to the registrar by any person aggrieved on the ground either a xxx xxx xxx xxx b that up to a date of one month before the date of the application a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being. sub s 3 envisages that an application shall not be entitled to rely for the purpose of clause b of sub s 1 or for purpose of sub s 2 on any non use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates. s 48 provides for registered users which reads thus 48 registered users 1 subject to the provisions of section 49a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trade mark is registered otherwise than as a defensive trade mark but the central government may by rules made in this behalf provide that no application for registration as such shall be entertained unless the agreement between the parties complies with the conditions laid down in the rules for preventing trafficking in trade marks 2 permitted use of a trade mark shall be deemed to be use by the proprietor thereof and shall be used by a person the proprietor for the purpose of s 46 or for any other purpose for which such use is material under this act or any other law. it would thus be apparent that subject to section 46for a registered trade mark up to date within one month before the date of making application for rectification for a continuous period of 5 years or longer if registered trade mark had not been use during that period there was no bona fide user in relation to those goods by the proprietor thereof for the time being. the trade mark should be taken off and struck out form the register of trade marks in respect of any goods in respect of which the trade mark is registered sub s 3 enables the registered proprietor to show special circumstances for the non use of the trade mark due to which circumstances in the trade he could not use the trade mark for the above period and not with any intention to abandon the use of trade mark or not to use the trade mark in relation to good to which the application for rectification relates. sub s 2 of s 48 give defence to permitted user in relation to a registered trade mark. it means the use of the trade mark by a registered user of the trade mark in relation to good with which he is connected in the course of trade and in respect of which the trade mark remains registered for the time being and for which he is registered as a registered user and which complies with any conditions or restrictions to which the registration of the trade marks is subjected to. s 48 1 envisages that subject to the provisions of section 49a person other than the registered proprietor of a trade mark may be registered as a registered user thereof in respect of any or all of the goods in respect of which the trade mark is registered otherwise than as defensive trade mark. the permitted use of trade mark shall be deemed to be used by the proprietor thereof and shall be deemed no to be used by a person other than the proprietor for the purpose of s 46 or for any other purpose for which such use is material under the act or any other law. the central government is empowered to prevent trafficking in trade mark. it would therefore be clear that a permitted use of the trade mark should be done under sub s 1 of section 48 it. should be either by the registered proprietor of the trade mark or a person other than the registered proprietor registered u s 481 to use the trade mark by operation of sub section 2 an un registered person u s 481 or a person who did not register u s 1 of s 48 shall not be deemed to be a registered user for the purpose of s 46 or any other law. the high court recorded a finding and it is not disputed across the bar that the appellant had entered into an agreement with sen raleigh which was a permitted user and used the trade mark till november 11976 and thereafter by registered user agreement dated december 201976 used trade mark for a period of 5 years. it is not in dispute that till date of filing of the application the appellant used the trade mark in passing off the bicycles under the trade mark of the respondent. the question therefore is whether the appellant must be deemed to be bona fide user of the trade mark though there was no agreement nor was it registered as permitted user u s 481. on admitted position and in the facts and circumstances we are of the view that the appellant was a ago user of the trade mark of the respondent in passing off the bicycles under the trade mark of the respondent who admittedly is a registered proprietor. it is true as held by this court that to get a trade mark registered without any intention to use it in relation to any goods but merely to make money out of it by selling it to others the right to use it as a commodity would be trafficking in that trade mark. it requires to be prevented and prohibited. the court would not lend assistance to such registered proprietors of the trade mark. there must be real trade connection between the proprietor of the trade and licensee of the goods and the intention to use the trade mark must exist at the date of the application for registration of trade mark and such intention must be genuine and bona fide and continue to subsist in order to disprove the charge of trafficking in trade mark. it is a question of fact in every case. the question is whether the trade connection exists to dispel the charge of trafficking in the trade mark. this question was considered by this court in american home products corporation vs mac laboratories pvt ltd and anr 1985 indlaw sc 464 and they need no reiteration. it is seen that preceding the nationalization of the cycle manufacturing industry under the idr act the respondent had a collaboration agreement with sen raliegh who was a registered user under section 48 from him the appellant came to succeed by statutory operation. it was therefore not a case of getting the trade mark registered under the predecessor act and continuing under the act for trafficking of the trade mark. it is true that u s 431 either the registered proprietor or a permitted person is required to register as permitted user. the benefit of s 46 would be available during the period for which the agreement registered and user continued in furtherance thereof. it appears that even an unregistered licensee so long as there is unbroken connection in the course of the trade between the licensor and the passing off lincesee 's goods under the trade mark there would be sufficient connection in the course of the trade between the proprietor and bona fide user of the trade mark by unregistered user. it must therefore be held that though the deemed presumption under sub s 2 of s 48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user the connecting link of passing off the goods between the licensor 's trade mark and the lincesee should bona fide be with the permission or consent which may be express or implied by long course of dealings. it would connect the registered proprietor and the user of the trade mark by the unregistered lincesee. the appellant must be presumed by course of conduct that he is a bona fide user for the purpose of s 461b. in k r beri and co vs. the metal godds mfg. co pvt limited and anr. air 1980 delhi 299 1980 indlaw del 180the division bench construed s 482 and held that an unregistered user of the trade mark even with the consent of the proprietor can not be construed to be a registered user u s 481 and such construction renders sub s 2 of s 48 surplus age or otios which is impermissible by statutory construction. we have given anxious consideration to the reasoning therein. on strict interpretation the view of the division bench may be correct but it is not correct to hold that by a bona fide user of an unregistered user when connection between the proprietor of the trade mark and the permitted user in relation to passing off the goods under the trade mark are proved it does not render sub section 2 of s 48 surplus age or otios. it is true that the burden flies on the registered proprietor of the trade mark to establish the exceptions provided under s 463 equally the applicant for rectification also prima facie shows non user for the relevant period. then the burden shifts to the proprietor of the trade mark to affirmatively prove the special circumstances for non user of trade mark. it must be shown that the non use of the trade mark is due to special circumstances of the trade and not due to some other cause which would have operated whether the special circumstances had arisen off not. although the special circumstances of trade taken by themselves would have prevented the use of the trade mark. if the non user was in fact due to some other circumstances and would have occured whether the circumstances had followed or not subs 3 would not apply. it must therefore be duty of the registered proprietor to show what non user was strictly due to the special circumstances of trade and not of any intention on the part of the registered proprietor not to use the trade mark during the relevant period. though there was a ban on impart of the raleigh cycles manufactured outside india and passed off under the registered mark of the respondents as a registered proprietor the circumstances do not attracted sub section 3 of s 46 to relieve the respondents to establish non user but on the facts of this case we have the admitted position that sen raleigh admittedly was a registered user through which the appellant had bona fide used the registered trade mark of the registered proprietor there is no discontinuance or non use of the trade mark by the respondent to establish the special circumstances in this case. it is also not necessary to go into the question whether the application filed by the appellant u s 481 and its pendency would be a special circumstance in favour of the respondent. suffice it to hold that subs 3 of s 46. is not attracted to the facts in this case. the question then is whether the discretion has been properly exercised by both the division bench as well the single judge in refusing to take off the trade mark from the register by striking off trade mark from the register of the registrar of trade marks. it is true that while exercising discretion the court u s 46 of the act should take into consideration not only commercial interest of the parties but also public interest in para 21 82 at page 386 of the law of trade marks and passing off by p narayanan 4th ed it is stated that the court or the registrar has discretion in granting or refusing an application for rectification. ordinarily however the mark will be expunged taken off when the factual circumstances necessary for the removal are established unless it is shown that the case comes within the exceptions provided in the sub section 3 the high court refused to exercise the discretion to strike off the trade mark from the register. it is seen that the appellant had not abandoned at any point of time the use of the trade mark of the respondent registered proprietor till filing of the application. though the appellant has not used the trade mark by itself since 1954 and after the expiry of the permitted use by sen raleigh until the notice was issued by the respondent directing the appellant not to use the trade mark the appellant came to use the same in passing off bicycles manufactured by it under trade mark of the respondent. it is not relevant for the purpose of s 461b whether the bicycles were manufactured with the assistance of technical know how passed on by sen raleigh or the permitted user. suffice it to state that the appellant as a fact had used the trade mark of the respondent in passing off the bicycles manufactured by it. the high court in our view declined for good reasons to rectify the trade mark under section act b of the act. we are also not persuaded to take a different view from that of the high court. in these circumstances we are of the view that the high court has properly exercised its discretion and refused to rectify and strike off the trade mark from the register of trade marks of the registrar. the appeal is accordingly dismissed but in the circumstances without costs.

FACTS the respondents through their agents had registered trade mark "raleigh" and other trade marks (12 marks) under the indian merchandise marks act,1889 (4 of 1989) and the trade marks act,1940 (5 of 1940). the trade and merchandise marks act,1958 (43 of 1958) (for short,the 'act) which came into force with effect from october 3,1958 has repealed the predecessor act and now the act is in operation. the respondents entered into an agreement with sudhir kumar sen on november 3,1948 to render technical know-how to the indian company to be formed which would manufacture bicycles and market them under raleigh's indian trade marks. pursuant thereto,a company called sen raleigh limited came into existence which manufactured cycles with technical assistance by the respondents-raleigh industries of u.k.and marketed the bicycles with a brand name and trade marks belonging to the respondents. on april 24,1954,sen. raleigh was recorded as permitted users of the trade marks. by agreement dated december 29,1962,sen raleigh and the respondents agreed that sen raleigh was registered user for further period up to 1976. sen raleigh was taken over by the government of india on september 8,1975 under the idr act and the government took over the management of sen raleigh limited. the agreement dated december 29,1962 was modified and the respondents were given option to terminate the agreement. an agreement dated december 20,1976 was entered into between the appellant,as registered user and the respondent in respect of 12 trade marks for a period of 5 years. on march 28,1978,joint application by sen raleigh and the appellant duly signed by the respondent as proprietor and sen raleigh limited as registered user came to be made before the registrar of trade marks. on october 24,1980,sen raleigh was nationalized and got vested in the appellant-corporation by publication of the notification under idr act. on march 5,1982,the respondent wrote a letter to the appellant that in the absence of a new agreement they were instructing their advocate to prevent the appellant by restraint proceedings to use the trade mark effective from april 1,1982. on march 24,1982,the appellant made an application under sections 32,46 and 56 of the act against the respondents in the high court of calcutta in suit no.266/92 pleading,inter alia,that the respondents had failed to provide technical assistance by passing the technical know-how to sen raleigh after november 1,1976. the learned single judge dismissed the application by his judgment dated september 13,1990 holding,inter alia,that any proprietor mentioned in s.46(1)(b) of the act extends to bona fide user other than registered users. on appeal,the division bench in appeal no.13/91 confirmed the same holding. thus,this appeal by special leave. ARGUMENT learned senior counsel for the appellant,raised three-fold contentions. it is his pivotal contention that undisputedly when the respondent was not in urge of trade mark as "a registered proprietor" or its agent sen raleigh as permitted user" for a period of 5 years immediately preceding the date of the application u/s.46 for removal of the trade mark from the register,there was no bona fide user thereof in relation to those goods by the proprietor himself. the respondents admittedly did not use the same. the appellant cannot be said to be either the proprietor of the trade mark since 1976,since the agreement lapsed or permitted user-. he further contended that the special circumstances enumerated in sub-s.(3) of s.46 must be such that the respondents had intended to use the registered trade mark. for over a long period,the trade mark was not used by the respondents as its registered proprietor. the respondents did not prove that they were prevented to use the same for 5 years or more preceding the date of the application. the burden is on tile respondents to prove that non-user was due to special circumstance of the trade and not due to some other cause which would have operated whether special circumstances had arisen or not since the respondents were not using the trade mark since april 20,1954,the plea of special circumstances is not available to the respondents. learned senior counsel for respondents,resisted the contentions. according to the learned counsel,the respondents have collaboration agreement with sen raleigh which was taken over by the government under idr act and the appellant came to manufacture,with the technical know-how supplied by the respondents,the raleigh bicycles under the trade mark registered by the respondents in the register of the registrar under the act. the appellant was using the same as an agent. the operation of s.48(2) must be construed in such a way that the bona fide user even by a non-registered user,so long as there exist a rational connection between the proprietor of the trade mark and passes off the goods in the market manufactured by the appellant,is construed to be a bona fide user for and on behalf of the registered proprietor,namely,the respondents. ISSUE whether the high court was right in refusing to rectify and strike off the trade marks of the respondents from the register of trade marks. whether the appellant must be deemed to be bona fide user of the trade mark,though there was no agreement nor was it registered as permitted user u/s.48(1). ANALYSIS subject to section 46,for a registered trade mark up to date within one month before the date of making application for rectification for a continuous period of 5 years or longer if registered trade mark had not been use during that period,there was no bona fide user in relation to those goods by the proprietor thereof for the time being. a permitted use of the trade mark should be done under sub-s.(1) of section 48. it should be either by the registered proprietor of the trade mark or a person other than the registered proprietor registered u/s.48(1) to use the trade mark by operation of sub-section (2).an un-registered person u/s.48(1) or a person who did not register u/s.(1) of s.48 shall not be deemed to be a registered user for the purpose of s.46 or any other law. the high court recorded a finding and it is not disputed across the bar,that the appellant had entered into an agreement with sen raleigh which was a permitted user and used the trade mark till november 1,1976 and thereafter by registered user agreement dated december 20,1976 used trade mark for a period of 5 years. it is not in dispute that till date of filing of the application,the appellant used the trade mark in passing off the bicycles under the trade mark of the respondent. to get a trade mark registered without any intention to use it in relation to any goods but merely to make money out of it by selling it to others,the right to use it as a commodity would be trafficking in that trade mark. it requires to be prevented and prohibited. the court would not lend assistance to such registered proprietors of the trade mark. there must be real trade connection between the proprietor of the trade and licensee of the goods and the intention to use the trade mark must exist at the date of the application for registration of trade mark and such intention must be genuine and bona fide and continue to subsist in order to disprove the charge of trafficking in trade mark. it is a question of fact in every case. the question is: whether the trade connection exists to dispel the charge of trafficking in the trade mark. though the deemed presumption under sub-s.(2) of s.48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user,the connecting link of passing off the goods between the licensor's trade mark and the lincesee should bona fide be with the permission or consent which may be express or implied by long course of dealings. it would connect the registered proprietor and the user of the trade mark by the unregistered lincesee. the appellant must be presumed by course of conduct that he is a bona fide user for the purpose of s.46(1)(b. the high court has properly exercised its discretion and refused to rectify and strike off the trade mark,from the register of trade marks of the registrar. STATUTE s.46(1)(b) of the trade and merchandise marks act,1958 reads as under. 46.removal from register and imposition of limitations on ground of non-use.-(1. subject to the provisions of section 47,a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a high court or to the registrar by any person aggrieved on the ground either - (a) xxx xxx xxx xxx (b) that up to a date of one month before the date of the application,a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being. s.48 provides for registered users which reads thus: '48.registered users.-(1) subject to the provisions of section 49,a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trade mark is registered otherwise than as a defensive trade mark; but the central government may,by rules made in this behalf,provide that no application for registration as such shall be entertained unless the agreement between the parties complies with the conditions laid down in the rules for preventing trafficking in trade marks.(2) permitted use of a trade mark shall be deemed to be use by the proprietor thereof.and shall be used by a person the proprietor.for the purpose of s.46 or for any other purpose for which such use is material under this act or any other law.

FACTS the respondents through their agents had registered trade mark "raleigh" and other trade marks (12 marks) under the indian merchandise marks act,1889 and the trade marks act,1940. the trade and merchandise marks act,1958 which came into force with effect from october 3,1958 has repealed the predecessor act and now the act is in operation. the respondents entered into an agreement with sudhir kumar sen on november 3,1948 to render technical know-how to the indian company to be formed which would manufacture bicycles and market them under raleigh's indian trade marks. pursuant thereto,a company called sen raleigh limited came into existence which manufactured cycles with technical assistance by the respondents-raleigh industries of u.k.and marketed the bicycles with a brand name and trade marks belonging to the respondents. sen raleigh was taken over by the government of india on september 8,1975 under the idr act and the government took over the management of sen raleigh limited. the agreement was modified and the respondents were given option to terminate the agreement. an agreement dated december 20,1976 was entered into between the appellant,as registered user and the respondent in respect of 12 trade marks for a period of 5 years. on march 28,1978,joint application by sen raleigh and the appellant duly signed by the respondent as proprietor and sen raleigh limited as registered user came to be made before the registrar of trade marks. on october 24,1980,sen raleigh was nationalized and got vested in the appellant-corporation by publication of the notification under idr act. on march 5,1982,the respondent wrote a letter to the appellant that in the absence of a new agreement they were instructing their advocate to prevent the appellant by restraint proceedings to use the trade mark effective from april 1,1982. on march 24,1982,the appellant made an application under sections 32,46 and 56 of the act against the respondents in the high court of calcutta pleading,inter alia,that the respondents had failed to provide technical assistance by passing the technical know-how to sen raleigh after november 1,1976. the learned single judge dismissed the application by his judgment dated september 13,1990 holding,inter alia,that any proprietor mentioned in s.46(1)(b) of the act extends to bona fide user other than registered users. ARGUMENT it is his pivotal contention that undisputedly when the respondent was not in urge of trade mark as "a registered proprietor" or its agent sen raleigh as permitted user" for a period of 5 years immediately preceding the date of the application u/s.46 for removal of the trade mark from the register,there was no bona fide user thereof in relation to those goods by the proprietor himself. the respondents admittedly did not use the same. the special circumstances enumerated in sub-s.(3) of s.46 must be such that the respondents had intended to use the registered trade mark. for over a long period,the trade mark was not used by the respondents as its registered proprietor. the respondents did not prove that they were prevented to use the same for 5 years or more preceding the date of the application. the burden is on tile respondents to prove that non-user was due to special circumstance of the trade and not due to some other cause which would have operated whether special circumstances had arisen or not since the respondents were not using the trade mark since april 20,1954,the plea of special circumstances is not available to the respondents. the respondents have collaboration agreement with sen raleigh which was taken over by the government under idr act and the appellant came to manufacture,with the technical know-how supplied by the respondents,the raleigh bicycles under the trade mark registered by the respondents in the register of the registrar under the act. the operation of s.48(2) must be construed in such a way that the bona fide user even by a non-registered user,so long as there exist a rational connection between the proprietor of the trade mark and passes off the goods in the market manufactured by the appellant,is construed to be a bona fide user for and on behalf of the registered proprietor,namely,the respondents. ISSUE whether the high court was right in refusing to rectify and strike off the trademarks of the respondents from the register of trade marks. whether the appellant must be deemed to be bona fide user of the trade mark,though there was no agreement nor was it registered as permitted user u/s.48(1). ANALYSIS subject to section 46,for a registered trade mark up to date within one month before the date of making application for rectification for a continuous period of 5 years or longer if registered trade mark had not been use during that period,there was no bona fide user in relation to those goods by the proprietor thereof for the time being. a permitted use of the trade mark should be done under sub-s.(1) of section 48. it should be either by the registered proprietor of the trade mark or a person other than the registered proprietor registered u/s.48(1) to use the trade mark by operation of sub-section (2).an un-registered person u/s.48(1) or a person who did not register u/s.(1) of s.48 shall not be deemed to be a registered user for the purpose of s.46 or any other law. it is not in dispute that till date of filing of the application,the appellant used the trade mark in passing off the bicycles under the trade mark of the respondent. to get a trade mark registered without any intention to use it in relation to any goods but merely to make money out of it by selling it to others,the right to use it as a commodity would be trafficking in that trade mark. it requires to be prevented and prohibited. the court would not lend assistance to such registered proprietors of the trade mark. there must be real trade connection between the proprietor of the trade and licensee of the goods and the intention to use the trade mark must exist at the date of the application for registration of trade mark and such intention must be genuine and bona fide and continue to subsist in order to disprove the charge of trafficking in trade mark. the question is: whether the trade connection exists to dispel the charge of trafficking in the trade mark. though the deemed presumption under sub-s.(2) of s.48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user,the connecting link of passing off the goods between the licensor's trade mark and the lincesee should bona fide be with the permission or consent which may be express or implied by long course of dealings. it would connect the registered proprietor and the user of the trade mark by the unregistered lincesee. the appellant must be presumed by course of conduct that he is a bona fide user for the purpose of s.46(1)(b. STATUTE s.46(1)(b) of the trade and merchandise marks act,1958 reads as under. 46.removal from register and imposition of limitations on ground of non-use- subject to the provisions of section 47,a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a high court or to the registrar by any person aggrieved on the ground either - (a) xxx xxx xxx xxx (b) that up to a date of one month before the date of the application,a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being. section 48 of trade and merchandise marks act,1958- registered users. (1) subject to the provisions of section 49,a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trade mark is registered otherwise than as a defensive trade mark; but the central government may,by rules made in this behalf,provide that no application for registration as such shall be entertained unless the agreement between the parties complies with the conditions laid down in the rules for preventing trafficking in trademarks. (2) permitted use of a trade mark shall be deemed to be use by the proprietor thereof.and shall be used by a person the proprietor for the purpose of s.46 or for any other purpose for which such use is material under this act or any other law.

these appeals are directed against a judgment and order dated 17 october 2003 passed by the special court constituted under the special courts trial of offences relating to transactions in securities. act 1992 for short the act in misc. application nos. 41 of 1999 4 of 2001 265 266 and 275 of 2003. background facts. the appellants herein who are related to one harshad section mehta since deceased purchased nine residential flats in a building called madhuli apartments in worli area of mumbai. the family of the appellants consists of four brothers their wives children and their widowed mother. the eldest among them harshad section mehta has since expired. the said nine flats it is said were merged and redesigned for joint living of the entire family. the appellants herein and the said. late harshad mehta were persons notified in terms of the act which was enacted to provide for the establishment of a special court for the trial of offences relating to transactions in securities and for matters connected therewith. in terms of the provisions of the act along with late harshad mehta the custodian had notified 29 entities in terms of section 3 of the act comprising three of his younger brothers wife of late harshad mehta wives of two of his younger brothers and other corporate entities a partnership firm and three hufs. however out of the said 29 entitles only late harshad mehta and two of his younger brothers were cited as accused in various criminal cases filed against them. the properties of late harshad mehta and the appellants herein being notified persons stood attached in terms of the provisions of the act. proceedings before the special court. before the learned special court the parties herein filed several applications which can be sub divided in three categories as would be noticed shortly hereinafter. it is not in dispute that the learned special court on or about 3 august 1993 issued directions in various proceedings before it appointing auditors to prepare and audit the books of accounts of all notified persons for the period 1 april 1990 and 8 june 1992 i e the date of the notification. three firms of chartered accountants were appointed to prepare statement of accounts and liabilities of each of the appellants herein. a chartered accountants firm was appointed by the learned special judge by an order dated 17 september 2003 to represent all notified entities in the family of late harshad mehta for the purpose of ascertaining their tax liabilities. we may at this juncture notice the nature of the applications filed by the parties herein before the learned special court i on 26 april 1999 the custodian filed an application being misc. application No 41 of 1999 seeking permission of the special court for sale of residential premises commonly known as madhuli of eight notified entities. a misc. application being 4 of 2001 was filed by the custodian praying for the sale of commercial premises. the appellants herein filed several misc. applications praying for lifting of attachment on their residential premises on the ground that the same had been purchased much prior to 1 april 1991 and the same had no nexus with any illegal transactions in securities. alternatively it was prayed that since their asset base was greater than genuine liabilities the said residential premises should be released from attachment. impugned judgment. by reason of the impugned order dated 17 october 2003 the learned special judge allowed misc. applications nos. 4 of 2001 and 41 of 1999. the misc. applications filed by the appellants herein for release of the residential flats as well as the commercial premises from attachment were dismissed. it was directed in case all adult members of the family of late shri harshad metha who are presently occupying the abovereferred flats file an undertaking in this court within a period of four weeks from today undertaking to vacate the flat occupied by them and hand over peaceful possession thereof to the custodian within a period of four weeks from the date on which the custodian sends them communication asking them to vacate the flats on sale of the flats being sanctioned by the court. the custodian shall permit the members of family of late shri harshad mehta to occupy the flats during the time that the process of the sale of the flats goes on. in case no such undertakings are filed by the adult members as directed above within the aforesaid period the custodian shall stand appointed as receiver of the flats which are described in exh. 8 and exh. 8 1 to misc. petition No 41 of 1999. contentions of the parties appellants 9. mr mahesh jethmalani learned senior counsel appearing on behalf of the appellants in assailing the said judgment of the learned special court inter alia raised the following contentions i some of the entities having their asset base much more than actual liability the impugned judgments are unsustainable. there was no occasion for the custodian to club all the notified entities in one block so as to be termed as harshad mehta group andor to club their assets and liabilities jointly. although in relation to a body corporate incorporated and registered under the indian companies act the doctrine of lifting the corporate veil would be applicable but the same can not be applied in case of individuals. ii having regard to the fact that only three entitles out of eight were involved in the offences the liability of harshad mehta could not have been clubbed for the purpose of directing attachment and consequent sale of the properties which exclusively belong to them. the liabilities of harshad mehta who was a sui generis could have been recovered from the properties held and possessed by him or from the companies floated by him but not from the individual entities at least two of whom being medical practitioners have their income from other sources. the books of accounts and other documents on the basis whereof the auditor 's report had been made having not been allowed to be inspected by the appellants herein on the plea that they had the knowledge thereabout the same could not have been taken into consideration for the purpose of passing of the impugned order or otherwise. v the appellants having preferred appeals against the income tax orders of assessment passed by the authority and the same having been set aside no liability to pay income tax by the appellants as of now being existing the residential properties could not have been sold. vi drawing our attention to a representative chart showing the discrepancies in the accounts of mrs deepika a mehta as shown in a affidavit by the custodian b books of accounts maintained by the appellants and c auditor 's report it was submitted that the auditor 's report could not have been relied upon. a copy of the auditor 's report having only been supplied during pendency of these appeals the learned special judge committed a serious error in passing the impugned judgment relying on or on the basis thereof. respondents. mr ashok h desai learned senior counsel appearing on behalf of the custodian on the other hand would inter alia submit. iin view of the decision of this court in l s synthetics ltd v fairgrowth financial services ltd and another 2004 11 scc 456 2004 indlaw sc 715 all properties belonging to the notified persons being subject to automatic attachment could be applied for discharge of the joint liabilities of the harshad mehta group in terms of section 11 of the act. iithe applications for de notification filed by the appellants herein having been withdrawn the contention raised by the appellants that they are not liable in terms of the provisions of the act are not open to question particularly in view of the fact that no application for de notification could be filed subsequently as they had become barred by limitation. iiithe order of assessment under the income tax act having become final and binding as on the date when the orders of assessment were passed and thus mere filing of appeals were not sufficient for raising a contention that the taxes did not become due. reliance in this behalf has been placed on b c dalal 2005 indlaw sc 1826 v custodian. civil appeal No 2795 of 2004 and the kedarnath jute mfg. co ltd v the commissioner of income tax. central calcutta 1972 3 scc 252 1971 indlaw sc 841. ivthe appellants herein apart from the corporate entity which is a front company of late harshad mehta have received large loans advances and credits from the harshad mehta group and there had been intermingling of the assets to the tune of crores of rupees they can not escape their liabilities under the act. the affidavit filed by the appellants herein before the special court clearly shows that the liabilities exceed the assets in all cases. even in the case of dr pratima mehta wherein some excesses has been shown if the interest is calculated for the last over 13 years of the amount received the liabilities would exceed the assets. v the assets and liabilities of each of the entities having been audited by the chartered accountants it is evident from the reports that in all cases liabilities exceed the assets. vithe decretal amount against the harshad mehta group also would exceed rs 4339 crores and thus the assets held by the appellants are wholly insufficient to meet the liabilities. viifurthermore the appellants are also unable to maintain their residential properties as the custodian had to pay a sum of rs 1 06 crores towards the maintenance of the said residential properties. the assets of the harshad mehta group are valued at rs 972 crores apart from the income tax dues whereas the aggregate amount of income tax dues exceed rs 13800 crores. viiidr. hitesh mehta and dr pratima mehta who are medical practitioners by profession having affirmed affidavits admitting that the share broking and investment businesses which were part of family businesses were undertaken and conducted by late harshad mehta and they had no knowledge thereabout nor were they involved therewith. they at this stage can not be permitted to turn round and contend that they have nothing to do with the liabilities of late harshad mehta. ixthe sale of commercial property had never been seriously contested by the appellants and in fact the contention of the appellants herein before the special court was that if the commercial properties were sold there would be no need to sell the residential properties. even before this court the sale of commercial properties had not been questioned. a large number of commercial properties having already been sold and third party rights having been created this court should not interfere with the impugned judgment. the act. the statement of objects and reasons for enacting the act reads as under 1 in the course of the investigations by the reserve bank of india large scale irregularities and malpractices were noticed in transactions in both the government and other securities indulged in by some brokers in collusion with the employees of various banks and financial institutions. the said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. 2 to deal with the situation and in particular to ensure speedy recovery of the huge amount involved to punish the guilty and restore confidence in and maintain the basic integrity and credibility of the banks and financial institutions the special court trial of offences relating to transactions in securities ordinance 1992 was promulgated on the 6th june 1992. the ordinance provides for the establishment of a special court with a sitting judge of a high court for speedy trial of offences relating to transactions in securities and disposal of properties attached. it also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders. section 3 of the act provides for appointment and functions of the custodian. sub s 2 of section 3 postulates that the custodian may on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the 1st day of april 1991 and on and before 6th june 1992 the statutory period notify the name of such person in the official gazette. 3 of section 3 contains a non obstante clause providing that on and from the date of notification under sub section 2 any property movable or immovable or both belonging to any person notified under that sub section shall stand attached simultaneously with the issue of the notification and such attached properties may be dealt with by the custodian in such manner as the special court may direct. in the ordinance which preceded the act there was no provision for giving post facto hearing to a notified person for cancellation of notification but such a provision has been made in the act as would appear from section 42 thereof 1 of section 4 of the act reads as under contracts entered into fraudulently may be cancelled if the custodian is satisfied after such inquiry as he may think fit that any contract or agreement entered into at any time after the 1st day of april 1991 and on and before the 6th june 1992 in relation to any property of the person notified under sub s 2 of section 3 has been entered into fraudulently or to defeat the provisions of this act he may cancel such contract or agreement and on such cancellation such property shall stand attached under this act. provided that no contract or agreement shall be cancelled except after giving to the parties to the contract or agreement a reasonable opportunity of being heard. 2 of section 4 however provides for a hearing as regard correctness or otherwise of the notification notifying a person in this behalf in the event an appropriate application therefor is filed within 30 days of the issuance of such notification. section 5 provides for establishment of the special court. section 7 confers exclusive jurisdiction upon the special court. any prosecution in respect of any offence referred to in sub s 2 of section 3 pending in any court is required to be transferred to the special court. section 9 provides for the procedure and powers of the special court. section 9 a which was inserted by act 24 of 1994 with effect from 25th january 1994 confers all such jurisdiction powers and authority as were exercisable immediately before such commencement by any civil court in relation to the matter specified therein. section 11 of the act reads as under discharge of liabilities. notwithstanding anything contained in the code and any other law for the time being in force the special court may make such order as it may deem fit directing the custodian for the disposal of the property under attachment. the following liabilities shall be paid or discharged in full as far as may be in the order as under a all revenues taxes cesses and rates due from the persons notified by the custodian under sub s 2 of section 3 to the central government or any state government or any local authority b all amounts due from the person so notified by the custodian to any bank or financial institution or mutual fund and c any other liability as may be specified by the special court from time to time. analysis of the statutory. provisions. the act provides for stringent measures. it was enacted for dealing with an extra ordinary situation in the sense that any person who was involved in any offence relating to transaction of any security may be notified whereupon all his properties stand attached. the provision contained in the act being stringent in nature the purport and intent thereof must be ascertained having regard to the purpose and object it seeks to achieve. the right of a person notified to file an application or to raise a defence that he is not liable in terms of the provisions of the act or in any event the properties attached should not be sold in discharge of the liabilities can be taken at the initial stage by filing an application in terms of sub s 2 of section 4 of the act. but at the stage when liabilities are required to be discharged the notified person may inter alia raise a contention inter alia for the purpose of establishing that the properties held and possessed by them are sufficient to meet their liabilities. in terms of the provisions of the act the special court had been conferred a very wide power. recedents as regard scope of the act. constitutionality and or interpretation of the act came up for consideration before this court in harshad shantilal. mehta 1998. indlaw sc 732 v custodian and others 1998 5 scc 1 wherein the following questions were framed what is meant by revenues taxes cesses and rates due. does the word due refer merely to the liability to pay such taxes etc or does it refer to a liability which has crystallised into a legally ascertained sum immediately payable. do the taxes in cl. a of section 112 refer only to taxes relating to a specific period or to all taxes due from the notified person. at what point of time should the taxes have become due. does the special court have any discretion relating to the extent of payments to be made under section 112a from out of the attached funds property. whether taxes include penalty or interest. whether the special court has the power to absolve a notified person from payment of penalty or interest for a period subsequent to the date of his notification section in the alternative is a notified person liable to payment of penalty or interest arising from his inability to pay taxes after his notification. as regard question No 1 it was held in the present case the words taxes due occur in a section dealing with distribution of property. at this stage the taxes due have to be actually paid out. therefore the phrase taxes due can not refer merely to a liability created by the charging section to pay the tax under the relevant law. it must refer to an ascertained liability for payment of taxes quantified in accordance with law. in other words taxes as assessed which are presently payable by the notified person are taxes which have to be taken into account under section 112a while distributing the property of the notified person. taxes which are not legally assessed or assessments which have not become final and binding on the assessee are not covered under section 112a because unless it is an ascertained and quantified liability disbursement can not be made. in the context of section 112 therefore the taxes due refer to taxes as finally assessed. in regard to question No 2 it was opined every kind of tax liability of the notified person for any other period is not covered by section 112a although the liability may continue to be the liability of the notified person. such tax liability may be discharged either under the directions of the special court under section 112c or the taxing authority may recover the same from any subsequently acquired property of a notified person vide tejkumar balakrishna ruia v a k menon 1996 indlaw sc 2403 or in any other manner from the notified person in accordance with law. the priority however which is given under section 112a to such tax liability only covers such liability for the period 1 4 1991 to 6 6 1992. in respect of the question No 3 it was opined that the date of distribution arrives when the special court completes the examination of claims under section 9 a and if on that date any tax liability for the statutory period is legally assessed and the assessment is final and binding on a notified person that liability would be considered for payment section 111a. subject to what follows. so far as question No 4 is concerned this court despite upholding the contention of the custodian that no question of any reopening of tax assessments before the special court would arise and the liability of the notified person to pay the tax will have to be determined under the machinery provided by the relevant tax law observed but the special court can decide how much of that liability will be discharged out of the funds in the hands of the custodian. this is because the tax liability of a notified person having priority under section 112a is only tax liability pertaining to the statutory period. secondly payment in full may or may not be made by the special court depending upon various circumstances. the special court can for this purpose examine whether there is any fraud collusion or miscarriage of justice in assessment proceedings. the assessee who is before the special court is a person liable to be charged with an offence relating to transactions in securities. he may not in these circumstances explain transactions before the income tax authorities in case his position is prejudicially affected in defending criminal charges. then on account of his property being attached he may not be in a position to deposit the tax assessed or file appeals or further proceedings under the relevant tax law which he could have otherwise done. where the assessment is based on proper material and pertains to the statutory period the special court may not reduce the tax claimed and pay it out in full. but if the assessment is a best judgment assessment the special court may examine whether for example the income which is so assessed to tax bears comparison to the amounts attached by the custodian or whether the taxes so assessed are grossly disproportionate to the properties of the assessee in the hands of the custodian applying the wednesbury principle of proportionality. the special court may in these cases scale down the tax liability to be paid out of the funds in the hands of the custodian. in regard to question No 5 this court agreed with the finding of the special court that neither penalty nor interest can be considered as tax under section 112a of the act. so far question No 6 is concerned it was held that the remedy of a notified person who is assessed to penalty or interest after the notified period would be entitled to move the appropriate authority under the taxing statute stating if it is open to him under the relevant taxing statute to contend that he was unable to pay his taxes on account of the attachment of all his properties under the special court act and that there is a valid reason why penalty or interest should not be imposed upon him after the date of notification the authorities concerned under the taxing statute can take notice of these circumstances in accordance with law for the purpose of deciding whether penalty or interest can be imposed on the notified person. the special court is required to consider this question only from the point of view of distributing any part of the surplus assets in the hands of the custodian after the discharge of liabilities sections 112a and 112b. the special court has full discretion under section 112c to decide whether such claim for penalty or interest should be paid out of any surplus funds in the hands of the custodian. we must however notice that reliance was sought to be placed on the said judgment wherein reference was made to a bombay high court judgment in hitesh shantilal mehta v union of india. 1992 3 bom cr 716 1992 indlaw mum 6066 wherein it was held if the person approaches the special court and makes out for example a case that the property which is attached has no nexus of any sort with the illegal dealings in securities belonging to banks and financial institutions during the relevant period andor that there are no claims or liabilities which have to be satisfied by attachment and sale of such property in our view the special court would have the power to direct the custodian to release such property from attachment. but the said observation was held to be not laying down a law by a 3 judge bench of this court in l s synthetics ltd v fairgrowth financial services ltd and another 2004 11 scc 456 2004 indlaw sc 715 holding i. a notified party has the requisite locus to bring the fact to the notice of the special court that certain sum is owing and due to him from a third party whereupon a proceeding can be initiated for recovery thereof by the custodian and consequent application thereof in discharge of the liability of the notified person. ii sub s. 3 of section 3 should be literally construed and so construed all properties belonging to the notified person shall be subject to attachment which may consequently be applied for discharge of his liabilities in terms of section 11 of the said act. the provisions of the limitation act 1963 have no application in relation to the proceedings under the said act. the ratio of the said decision as regard applicability of the limitation act was further considered by a division bench of this court in fairgrowth investments ltd v custodian 2004 11 scc 472 2004 indlaw sc 868 wherein it was held that section 5 of the limitation act will have no application in relation to an application falling under sub s 2 of section 4 of the act stating it is enough for the purpose of this appeal to hold that section 292 of the limitation act 1963 does not apply to proceedings under section 42 of the special court trial of offences relating to transactions in securities act 1992. since the appellant 's petition of objection had been filed much beyond the period prescribed under that section the special court was right in rejecting the petition in limine. the appeal is accordingly dismissed but without any order as to costs. the appellants herein are notified persons in terms of the provisions of the act. therefore all the properties belonging to them stand attached. such attachment being automatic no finding was required to be arrived at that the same had been acquired either during the notified period or the appellants were involved in offences in transactions in securities. in tejkumar balakrishna ruia v a k menon and another 1997 9 scc 123 1996 indlaw sc 2403 this court held in our view the terms of sub s 3 of section 3 are clear. by reason thereof the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. the words on and from the date of notification indicate the point of time at which the attachment takes effect this is reiterated by the words shall stand attached simultaneously with the issue of the notification. this also indicates that no separate notification or order in regard to the attachment is necessary. neither the words on and from the date of notification nor the word property lead to the conclusion that what is attached is not only that property which the notified person owned or was possessed of on the date of the notification but also all such property as he might acquire at any time thereafter. the intention to attach property which did not belong to the notified person on the date of the notification but which he might acquire later would had it been there have been clearly expressed and sub s 3 would have stated that such property would stand attached the moment it was acquired by the notified person. the act would also have made provision for a subsistence allowance or the like for the notified person. it seems to us that to give to section 33 the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional for it would deprive the notified person so long as he remained a notified person from earning a livelihood. even to say that such interpretation would reduce a notified person to beggary would not be accurate because the alms that he received being his property would stand attached. the apprehension expressed by the special court does not appear to be well founded if what a notified person obtains by way of purported income or gift or inheritance is really his own money such money would upon establishment of the fact stand attached automatically under the provisions of section 33. in any event it is for parliament to enact a law that meets all contingencies. the courts must interpret the law as it reads. while a purposive interpretation is permissible where two interpretations are possible the purposive interpretation must be such as preserves the constitutionality of the provision. it has further been held that the property be shares dividends and bonus and rights shares would also be attached property. issues. iwhether the appellants being not involved in offences in transactions in securities could have been proceeded against in terms of the provisions of the act. iiwhether individual liabilities of the appellants ought to have been separately considered by the special court as not a part of harshad mehta group. iiiwhether the tax liabilities could not have been held to be due as the order of assessments did not become final and binding. ivwhether the commercial properties could have been sold in auction. vwhether the residential properties should have been released from attachment. before adverting to the questions raised herein we may notice that both the parties have raised several contentions before us which have not precisely been raised before the learned special judge. several subsequent events have also been brought to our notice. the parties have also filed several charts before us showing individual assets and liabilities. it has as noticed hereinbefore further been contended that various best judgment assessment passed by the assessing authority against some of the appellants have been set aside in appeal and the matters are pending reassessment before the assessing authority. the appellants case is that the individual and corporate appellants other than harshad mehta ashwin mehta and sudhir mehta filed applications within the prescribed period before the special court praying for their de notifications. however by an order dated 14 july 2000 the said applications were permitted to be withdrawn with a permission to re file the same. it is not in dispute that the said applications are pending for consideration before the special court. they have not been heard. what would be the effect of the jurisdictional question as regard maintainability of the said application being barred by limitation would indisputably fall for consideration before the special court. we therefore as at present advised refrain ourselves from adverting to the said question. the question however before us is as to whether any contention which may not have a direct bearing with the question as to whether the special court could entertain their applications for de notifications could be raised by way of defence. it is no doubt true that the law of limitation bars a remedy but not a right. see bombay dyeing manufacturing co ltd v the state of bombay and others air 1958 sc 338 savitra khandu beradi v nagar agricultural sale and purchase co operative society ltd ahmednagar and others. air 1957 bom 178 1957 indlaw mum 110 and hari raj singh v sanchalak panchayat. raj u p govt. lucknow and others. air 1968 all 246 1967 indlaw all 16 but as observed hereinbefore. it would not be proper for us to consider as to whether such a remedy being not available in terms of section 42 of the act can still be determined if raised by way of defence. in l s synthetics ltd 2004 indlaw sc 715 supra this court observed a statute of limitation bars a remedy and not a right. although a remedy is barred a defence can be raised. in construing a special statute providing for limitation consideration of plea of hardship is irrelevant. a special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. the intent and purport of parliament enacting the said act furthermore must be given its full effect. we are therefore of the opinion that the provisions of the limitation act have no application so far as directions required to be issued by the special court relating to the disposal of attached property are concerned. although we do not intend to enter into the correctness or otherwise of the said contention of the appellants at this stage however there can not be any doubt whatsoever that they being notified persons all their properties would be deemed to be automatically attached as a consequent thereto. for the said purpose it is not necessary that they should be accused of commission of an offence as such. the contention of the appellants to the effect that their properties should have been attached only towards the liabilities incurred by the parties in respect of the transactions made during the statutory period can not be accepted as all the appellants being notified the attachment of the assets would be automatic. l s synthetics ltd 2004 indlaw sc 715 supra. however the contention of the appellants that the properties held by them otherwise are sufficient to meet their liabilities was required to be gone into as in our considered opinion there can not be a any dispute that the appellants have such a right. a corporate veil indisputably can be lifted on several grounds. lifting the corporate veil. the principle of lifting the corporate veil however ipso facto would not apply to the individuals. the custodian in a case of this nature may however show that the transactions entered into apparently by harshad mehta were intimately connected with acquisition of properties in the name of others. a transaction of benami indisputably can be a subject matter of a lies in terms of section 41 of the act as and when such a question is raised the same may have to be dealt with by the special court appropriately. however nexus between several persons in dealing with the matter may be established by the custodian. the fact however remains that the copies of the documents books of accounts and other records on the basis whereof the auditors appointed by the court filed their reports had not been shown to the appellants herein on the premise that they were in know of the things. as the said question has not been gone into by the learned judge special court it is necessary that the same be considered and appropriately dealt with. the appellants however raised the following contentions i that the statement prepared by the custodian and exhibited as c to his affidavit in rejoinder dated 1 october 2003 was based on material at least all of which were not connected to the appellants as were pointed out before the court. the learned special judge has accepted the figures stated by the custodian at face value without probing the basis on which the statement was prepared even though the appellants in their sur rejoinder asserted that the figures in the statement were contrary to both the books of accounts drawn by them as also the auditor 's report. in para 14 of the sur rejoinder the appellants denied the asset and liability position as arrived at by the custodian. according to the appellants the custodian has under estimated the assets and exaggerated and overstated their liabilities. a triable issue had been raised and the custodian 's petition should have been converted into a suit. this was not done. in fact according to the appellants there are gross errors in the material relied upon by the custodian. the said contention must be properly adjudged. several charts have been filed before us by the appellants to show i liabilities have been exaggerated by the custodian. no credit for rs 1227 crores released to revenue on interest are given by the custodian. ii liabilities have been shown in relation to unperformed contracts. credits not given for relief obtained from income tax. subsequent to the filing of the present appeal in a large number of cases the revenue demands have been set aside. it is open to the appellants herein to show that even if they continued to be notified the custodian was not right in clubbing all the individual members of the family as a single entity styled as harshad mehta group. it is interesting to note that the properties belonging to the mother of harshad mehta has since been released from attachment. the learned special court despite such a contention having been raised by the appellants in their affidavit in reply did not advert thereto. it is furthermore not in dispute that pursuant to or in furtherance of the directions issued by the learned special court the accounts of all entities be it corporate or individual were drawn up separately which approach had not been dis approved by the auditor appointed by the special court. even in the rejoinder filed by the custodian e g paragraphs 14 20 21 and 22 before the special court such contentions have been raised. a sur rejoinder thereto was filed on 15 october 2003 and in paragraphs 1 to 6 thereof the said statements were denied and disputed. our attention has also been drawn to a letter dated 7 october 2003 addressed by all the appellants to the office of the custodian wherein the attention of the custodian was drawn to the fact that all the documents relied upon by him had not been permitted to be inspected and he was requested to forward a report prepared by the chartered accountants in respect of the individual addressors of the letters. the said letter was replied by the custodian by his letter dated 10 october 2003 wherein none of the queries contained in paragraphs 3 to 8 of the said letter was even attempted to be answered. the appellants herein contended that the custodian did not furnish the requisite particulars thereof and inspection was refused on the grounds stated therein. the learned special court in the impugned order stated i the grand total of the admitted liability thus comes to rs 7279127317 15. the amount of priority demand of income tax liabilities comes to rs 18297576248. the estimated value of the immovable properties of this group is rs 184030038. thus the total value of the assets as per the affidavit filed on behalf of the custodian of harshad mehta group is rs 9727332166 94. v thus taking into consideration the total of the decretal amount and the income tax liability it is clear that the total assets of harshad mehta group would be far below the liabilities. in arriving at the said finding no contention of the parties raised in their respective affidavits had been adverted to nor any material filed before it was analysed. in our opinion the learned judge special court should have analysed the respective contentions of the parties in greater details and in particular in regard to assets and liabilities of the separate entities and having regard to the contentions raised by them that they are not part of the harshad mehta group and their individual liabilities can be met from the assets held and possessed by them separately. the statement annexed to the affidavit of the custodian showed individual break up and in that view of the matter the net asset picture of each individual of the appellants herein on individual basis and the effect thereof in our opinion should have received serious consideration at the hands of the learned special court. the custodian in terms of the directions issued by the learned special court had affirmed an affidavit putting on record the assets and liabilities of each of the members of the so called harshad mehta group on an individual basis. allegedly therein it was shown that the individuals had received large loans advances credits from the harshad mehta group and there had been intermingling of the assets to the tune of crores of rupees. before us mr desai had filed a chart for showing the same. the said chart however shows that at least mrs deepika mehta held assets more than her liabilities. mr desai contended that if interest is calculated liabilities would be more than assets. but the said chart has been drawn up on the basis of the audited accounts the correctness whereof is itself in dispute. before us a chart has been produced by the appellants herein as regards mrs deepika mehta to show her liabilities payable as on 8th june 1992 which are as under chart showing comparison of payables as on 8th june 1992. we therefore have not been given a clear picture as to the correctness or otherwise of the affidavit filed by the custodian vis a vis the books of accounts which have been maintained by the appellants themselves as well as the auditor 's report. the learned judge merely accepted the figures mentioned in the affidavit of the custodian and relied thereupon in the judgment without discussing the contentions and arguments raised on behalf of the appellants herein. we therefore are of the opinion in the interest of justice that it is necessary to give another opportunity of hearing to the appellants. it is true that horrendous figures as regard the liabilities of harshad mehta have been projected before us but the same had been shown to be of the entire group. if the liabilities of the individual entities are not treated as that of the group for one reason or the other indisputably liability of those who have nothing to do with the dealings of harshad mehta either in their individual capacities or as directors of some company or otherwise must be dealt with separately. the contention raised on behalf of the appellants is that the harshad mehta should be considered to be sui generis and the custodian may realize his dues from his personal assets as also of those with which he was concerned together with the assets of his front companies but such liability should not be fastened upon others who had nothing to do therewith. as regards liabilities of harshad mehta the appellants contended that since his expiry in the year 2001 his legal interests are not being defended both in the court as well as before the revenue as a result liabilities have been foisted upon him a large part which is on account of interest and penalties. his death has also forced upon him bankruptcy. on the other hand the contention of the custodian is that the appellants had not only taken huge loans or advances from harshad mehta in one capacity or the other but also even transactions and shares were made by harshad mehta on their behalf. further contention of the custodian is that even dr hitesh mehta and dr pratima mehta have admitted that they had no knowledge about the transactions. this may be so but then the effect of the rival contentions was required to be gone into by the learned special court. a finding of fact arrived at upon discussing and analyzing the respective contentions could have gone a long way in assisting this court in arriving at a correct conclusion. the learned judge proceeded on the basis that the assets and liabilities joint and collective of all those who are related with harshad mehta as also the corporate entities in which he was a director or had some other interest must be considered as a group. even in this behalf it was necessary for the special judge to assign sufficient and cogent reasons. a question may further arise as to whether the learned judge was correct in considering the individual liabilities of the notified parties as the liabilities of the group. if those individuals who had no connection with harshad mehta could not have been proceeded against for meeting the liabilities of harshad mehta jointly or severally a clear finding was required to be arrived at. only because there had been large intermingling and flow of funds from harshad mehta and inter se within the group the same by itself may not justify the conclusion that all of their assets were required to be sold irrespective of their individual involvement. it was thus necessary for the learned special court to arrive at a firm conclusion as regard the involvement of the individuals with harshad mehta if any and the extent of his liability as such. furthermore the question as regard liability of the parties should have been determined at the stage of section 9 a of the act. the appellants have contended that the custodian had taken contradictory or inconsistent stand inasmuch as the liabilities of all the entities were treated to be joint liabilities of harshad mehta group. he furthermore wanted to treat the liabilities of the notified entities also as their separate liabilities. he has proceeded on the basis that even if the assets and liabilities of all individuals is taken on an individual basis the liabilities would exceed assets in the case of each individual and corporate entity. it had however never been the case of the custodian that the examination of claims of all the notified parties is complete. it does not appear that claims inter se between the entities within the so called group had ever been taken into consideration. the custodian does not appear to have preferred claims before the special court on behalf of the largest lender on the so called group against those he had to recover loans. such claims may also be preferred. the act confers wide power upon the custodian and the learned special court and in that view of the matter having regard to the principles of natural justice the judgment and order of the learned judge special court should have furthermore been supported by sufficient and cogent reasons. tax liability. it is not in dispute that the tax liabilities of the appellants individually were assessed on the basis of best judgment assessment. it is furthermore not in dispute that in a large number of cases the appellate authorities have set aside best judgment assessments. the contention of the appellant to the effect that the income tax dues should have been considered at the point of time when they become recoverable can not be accepted having regard to the 3 judge bench decision of this court in b c dalal 2005 indlaw sc 1826 supra wherein this court categorically held that in absence of any order of stay granted by the higher court the liabilities would remain. we may further notice that the learned special court relied upon a decision in custodian v union of india and ors. petition No 64 of 1998 disposed of on 17th august 2000 wherein allegedly a dichotomy between sale and distribution was sought to be resolved in terms of the decision of this court in harshad shantilal mehta. indlaw sc 732 supra the appeal where against being civil appeal No 5812 of 2000 was dismissed by this court by an order dated 4 december 2000 stating that it was in agreement with the decision of the special court which called for no interference. this court therefore has laid down a law that mere filing of an appeal is not sufficient particularly when there is no order of stay on recovery has been granted and the demand is outstanding. in kedarnath jute mfg. co ltd 1971 indlaw sc 841 supra this court has held although that liability can not be enforced till the quantification is effected by assessment proceedings the liability for payment of tax is independent of the assessment. it is significant that in the present case the liability had even been quantified and a demand had been created in the sum of rs 149776 by means of the notice dated november 21 1957 during the pendency of the assessment proceedings before the income tax officer and before the finalisation of the assessment. it is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not prevail with regard to the quantum of liability etc. but in this case the orders of assessment have been set aside. if the orders of assessment have been set aside the liabilities of the appellants have to be worked out on the basis of the new orders of assessment. so long such orders of assessment are not passed by the competent assessing authorities it can not be said that the appellants are liable to pay a huge amount by way of income tax dues on the basis of such orders of assessment which have since been set aside. a chart has been annexed to the additional written submissions filed by mr desai which originated from a letter dated 9th december 2005 issued by the office of the commissioner of income tax showing the current status of the liabilities of the individual members of the harshad mehta group in the following terms i ashwin mehta rs 1396 crores ii. deepika mehta rs 120 crores even after deducting the amount set aside by itat. it exceeds rs 63 crores. late harshad mehta rs 11829 crores. iv jyoti mehta rs 1457 crores. v hitesh mehta rs 73 crores vi. pratima mehta rs 115 crores even after deducting the amount set aside by itat. it exceeds rs 35 crores vii. sudhir mehta rs 339 crores viii. aatur holdings rs 15 95 crores even after deducting the amount set aside by itat. 2 7 crores. the custodian has further brought on records that if the transactions by or on behalf of corporate entity viz aatur holdings pvt ltd and dr pratima mehta by way of illustration are taken into consideration the same would reveal their modus operandi to the effect that the moneys were diverted from banks and financial institutions by late harshad mehta which were in turn diverted to his family concerns and family members. these moneys were used for speculative transactions and securities and the profits generated was used for acquiring assets. the learned special court having not arrived at such a finding this court is not in a position to go into the correctness or otherwise thereabout. in any view of the matter the learned judge special court having not dealt with the question as regard the mode and manner of disbursements of the amount so far as the tax liabilities of the appellants are concerned elaborately the same requires fresh determination in the light of the decision of this court in harshad shantilal mehta. 1998 indlaw sc 732 supra. in fact the appellants have brought on records various orders passed by income tax appellate authorities to show that the demands of the revenue have been set aside. furthermore the orders of the appellate authority have been passed during pendency of this appeal. this court it is trite can take into consideration the subsequent events. such subsequent events could also be taken into consideration for the purpose of review. in board of control for cricket in india and another v netaji cricket club and others 2005 4 scc 741 2005 indlaw sc 1243. this court held it is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever can not take into consideration a subsequent event. in a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the board and its correlation with as to what transpired in the agm of the board held on 29 9 2004 the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake. in view of the aforementioned pronouncement of law we are of the opinion that it is absolutely necessary to request the learned special court to consider the matter afresh. sale of commercial properties has never been seriously contested by the appellants. in fact one of the contentions raised on behalf of the appellants had been that if commercial properties are sold there would be no need to sale the residential properties. this court also in its order dated 5th may 2004 clarified that the interim order dated 30th january 2004 shall not be applicable as regard sale of commercial properties as even before this court the same had not been questioned. it is furthermore not in dispute that third party rights have since been created by reason of sale of a large number of commercial properties. by an order dated 30th january 2004 while admitting the appeals this court directed the learned counsel for the custodian brings on record the result of the bids and the order of the special court dated 17 december 2003 and 20 january 2004. the learned counsel for the appellants proposes to offer his comments on the bids and the two orders of the special court. let it be done within two weeks. the process of finalizing the bids according to law may be proceeded ahead by the special court. however the finalization shall be subject to the result of these appeals. the said order however was modified and clarified by an order dated 5th may 2004 that the same shall not apply to the sale of commercial properties in view of the order of the learned judge special court dated 17th october 2003 wherein it was pointed out that the notified parties did not dispute the commercial properties being put to sale by the custodian. in that view of the matter evidently creation of any third party interest is no longer in dispute nor the same is subject to any order of this court. in any event ordinarily a bona fide purchaser for value in an action sale is treated differently than a decree holder purchasing such properties. in the former event even if such a decree is set aside the interest of the bona fide purchaser in an auction sale is saved. see zain ul abdin khan v muhammad asghar ali khan 15 ia 12 1887 indlaw pc 13. the said decision has been affirmed by this court in gurjoginder singh v jaswant kaur. smt and another 1994 2 scc 368 1994 indlaw sc 1613. in janak raj v gurdial singh and anr. 1967 2 scr 77 1966 indlaw sc 120. this court confirmed a sale in favour of the appellant therein who was a stranger to the suit being the auction purchaser of the judgment debtor 's immovable property in execution of an ex parte money decree in terms of order xxxi rule 92 civil procedure code. despite the fact that ordinarily a sale can be set aside only under rules 89 90 and 91 of order xxxi it was opined that the court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application in term of rule 92 was made or when such application was made and disallowed and in support thereof zain ul abdin khan 1887 indlaw pc 13 supra and various other decisions were referred to. in padanathil ruqmini amma v p k abdulla 1996 7 scc 668 1996 indlaw sc 3096 this court making a distinction between decree holder auction purchaser himself and a third party bona fide purchaser in an auction sale observed the ratio behind this distinction between a sale to a decree holder and a sale to a stranger is that the court as a matter of policy will protect honest outsider purchasers at sales held in the execution of its decrees although the sales may be subsequently set aside when such purchasers are not parties to the suit. but for such protection the properties which are sold in court auctions would not fetch a proper price and the decree holder himself would suffer. the same consideration does not apply when the decree holder is himself the purchaser and the decree in his favour is set aside. he is a party to the litigation and is very much aware of the vicissitudes of litigation and needs no protection. we therefore do not interfere with that part of the order whereby and wherewith the auction sale as regard commercial properties had been directed by the learned judge special court. the learned judge special court may therefore proceed to pass an appropriate order as regard confirmation of the sale of such properties. residential property. in these appeals we are concerned with sale of eight residential flats in a building known as madhuli. the flat belonging to the mother of late harshad mehta has been released. the flats however during pendency of these appeals have been sold in auction. one of the flats being flat. No 202. arunachal bhawan barakhamba road is subject matter of a separate proceeding pending before this court viz civil appeal. No 681 of 2004. in these appeals we are not concerned with the said flat. admittedly the flats have been sold subject to the result of these appeals. the flats have been sold on the basis of the joint liabilities of the appellants together with harshad mehta and other companies as a group. the liabilities of the appellants in view of our findings aforementioned are required to be considered afresh by the learned judge special court. the purchasers have also filed applications for their impleadment in these appeals. we however have not heard the purchasers as the question as to whether the auction sale of the said flats will be confirmed or not will depend upon the ultimate finding of the learned judge special court upon consideration of the matter afresh in the light of the observations made hereinbefore. we therefore would direct that the confirmation of sale of those flats be considered and appropriate order thereupon may be passed by the learned special court while considering the matter afresh. in the light of the directions issued herein it would be for the purchasers of the said flats to wait till a final decision is made or take back the amount deposited by them subject to any other or further order s that may be passed by the learned special judge. conclusion. in view of our foregoing discussions we are of the opinion that i the contention of the appellants that they being not involved in offences in transactions in securities could not have been proceeded in terms of the provisions of the act can not be accepted in view of the fact that they have been notified in terms thereof. the appellants being notified persons all their personal properties stood automatically attached and any other income from such attached properties would also stand attached. the question as to whether the appellants could have been considered to be part of harshad mehta group by the learned special court need not be determined by us as at present advised in view of the fact that appropriate applications in this behalf are pending consideration before the learned special court. the question as regard intermingling of accounts by the appellants herein with that of the harshad mehta group and or any other or further contentions raised by the parties hereto before us shall receive due consideration of the learned judge special court afresh in the light of the observations made hereinbefore. as regard the tax liabilities of the appellants herein we would request the learned judge special court to consider the matter afresh in the light of the observations made hereinbefore. the learned judge special court in this behalf having regard to the fact that several orders of best judgment assessment have been passed by the assessing authority may take into consideration the ratio laid down in the decision of this court in harshad shantilal mehta. the learned special court shall proceed to pass appropriate orders as regard confirmation of the auction sales in respect of commercial properties. v as regard sale of residential properties an appropriate order may be passed by the learned judge special court in the light of the observations made hereinbefore. we direct the custodian to permit the appellants to have inspection of all the documents in his power or possession in the premises of the special court in the presence of an officer of the court. such documents must be placed for inspection for one week continuously upon giving due notice therefor to the appellants jointly. as the appellants have been represented in all the proceedings jointly only one of them would be nominated by them to have the inspection thereof. the appellants shall be entitled to take the help of a chartered or cost accountant and may make notes therefrom for their use in the pending proceeding. the appellants shall file their objections to the said report if any within ten days thereafter. the custodian may also take assistance and or further assistance from a chartered accountant of his choice. a reply and or rejoinder thereto shall be filed within one week from the date of the receipt of the copy of the objection. the parties shall file their respective documents within one week thereafter. such documents should be supported by affidavits. both the parties shall be entitled to inspect such documents and filed their responses thereto within one week thereafter. the parties shall file the written submissions filed before this court together with all charts before the learned special judge special court within eight weeks from date. the learned judge special court shall allow the parties to make brief oral submissions with pointed reference to their written submissions. such hearing in the peculiar facts and circumstances of this case should continue from day to day. the learned judge special court while hearing the matter in terms of this order shall also consider as to whether the auction sale should be confirmed or not. it will also be open to the learned judge special court to pass an interim order or orders as it may think fit and proper in the event any occasion arises therefor. x we would however request the learned special judge special court to complete the hearings of the matter keeping in view of the fact that auction sale in respect of the residential premises is being consideration as expeditiously as possible and not later than twelve weeks from the date of the receipt of the copy of this order. save and except for sufficient or cogent reasons the learned judge shall not grant any adjournment to either of the parties. the learned judge special court shall take up the matter relating to confirmation of the auction sale in respect of the commercial properties immediately and pass an appropriate order thereupon within four weeks from the date of receipt of copy of this order. if in the meanwhile orders of assessment are passed by the income tax authorities the custodian shall be at liberty to bring the same to the notice of the learned special court which shall also be taken into consideration by the learned judge special court. with the aforementioned observations and directions these appeals are allowed. the impugned judgments are set aside and the matter is remitted to the learned judge special court for consideration of the matter afresh. however the parties shall bear their own costs. appeals allowed.

FACTS appellants consists of four brothers, their wives, children and their widowed mother. the eldest among them, harshad s. mehta, has since expired. the said nine flats, it is said, were merged and redesigned for joint living of the entire family. the appellants herein and the said late harshad mehta were persons notified in terms of the act which was enacted to provide for the establishment of a special court for the trial of offences relating to transactions in securities and for matters connected therewith. in terms of the provisions of the act, along with late harshad mehta, the custodian had notified 29 entities in terms of s. 3 of the act, comprising three of his younger brothers, wife of late harshad mehta, wives of two of his younger brothers and other corporate entities, a partnership firm and three hufs. however, out of the said 29 entitles, only late harshad mehta and two of his younger brothers were cited as accused in various criminal cases filed against them. the properties of late harshad mehta and the appellants, herein being notified persons stood attached in terms of the provisions of the act. misc. application being 4 of 2001 was filed by the custodian praying for the sale of commercial premises. applications praying for lifting of attachment on their residential premises on the ground that the same had been purchased much prior to 1st april,1991 and the same had no nexus with any illegal transactions in securities. alternatively, it was prayed that since their asset base was greater than genuine liabilities, the said residential premises should be released from attachment. the learned special judge allowed misc. applications nos. 4 of 2001 and 41 of 1999. the misc. applications filed by the appellants herein for release of the residential flats as well as the commercial premises from attachment were dismissed. ARGUMENT (i) some of the entities having their asset base much more than actual liability, the impugned judgments are unsustainable. there was no occasion for the custodian to club all the notified entities in one block so as to be termed as harshad mehta group and/or to club their assets and liabilities jointly. although in relation to a body corporate incorporated and registered under the indian companies act, the doctrine of lifting the corporate veil would be applicable, but the same cannot be applied in case of individuals. (ii) having regard to the fact that only three entitles out of eight were involved in the offences, the liability of harshad mehta could not have been clubbed for the purpose of directing attachment and consequent sale of the properties which exclusively belong to them. (iii) the liabilities of harshad mehta, who was a sui generis, could have been recovered from the properties held and possessed by him or from the companies floated by him but not from the individual entities; at least two of whom being medical practitioners have their income from other sources. (iv) the books of accounts and other documents on the basis whereof the auditor's report had been made having not been allowed to be inspected by the appellants herein on the plea that they had the knowledge thereabout, the same could not have been taken into consideration for the purpose of passing of the impugned order or otherwise. (v) the appellants having preferred appeals against the income tax orders of assessment passed by the authority and the same having been set aside, no liability to pay income tax by the appellants as of now being existing, the residential properties could not have been sold. (vi) drawing our attention to a representative chart showing the discrepancies in the accounts of mrs. deepika a. mehta as shown in (a) affidavit by the custodian; (b) books of accounts maintained by the appellants; and (c) auditor's report, it was submitted that the auditor's report could not have been relied upon. (vii) a copy of the auditor's report having only been supplied during pendency of these appeals, the learned special judge committed a serious error in passing the impugned judgment relying on or on the basis thereof. respondents. ISSUE (i)whether the appellants being not involved in offences in transactions in securities could have been proceeded against in terms of the provisions of the act. (ii) whether individual liabilities of the appellants ought to have been separately considered by the special court as not a part of harshad mehta group. (iii) whether the tax liabilities could not have been held to be due as the order of assessments did not become final and binding. (iv) whether the commercial properties could have been sold in auction. (v) whether the residential properties should have been released from attachment. ANALYSIS the provision contained in the act being stringent in nature, the purport and intent thereof must be ascertained having regard to the purpose and object it seeks to achieve. the right of a person notified to file an application or to raise a defence that he is not liable in terms of the provisions of the act or in any event, the properties attached should not be sold in discharge of the liabilities can be taken at the initial stage by filing an application in terms of sub-s. (2) of s. 4 of the act. but, at the stage when liabilities are required to be discharged, the notified person may inter alia raise a contention inter alia for the purpose of establishing that the properties held and possessed by them are sufficient to meet their liabilities. in terms of the provisions of the act, the special court had been conferred a very wide power. the appellants herein are notified persons in terms of the provisions of the act. therefore, all the properties belonging to them stand attached. such attachment being automatic, no finding was required to be arrived at that the same had been acquired either during the notified period or the appellants were involved in offences in transactions in securities. in tejkumar balakrishna ruia v. a.k. menon and another [(1997) 9 scc 123] 1996 indlaw sc 2403, this court held: "in their view, the terms of sub-s. (3) of s. 3 are clear. by reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. the words "on and from the date of notification" indicate the point of time at which the attachment takes effect; this is reiterated by the words "shall stand attached simultaneously with the issue of the notification". this also indicates that no separate notification or order in regard to the attachment is necessary. neither the words "on and from the date of notification" nor the word 'property' lead to the conclusion that what is attached is not only that property which the notified person owned or was possessed of on the date of the notification but also all such property as he might acquire at any time thereafter. the intention to attach property which did not belong to the notified person on the date of the notification but which he might acquire later would, had it been there, have been clearly expressed and sub-s. (3) would have stated that such property would stand attached the moment it was acquired by the notified person. the act would also have made provision for a subsistence allowance or the like for the notified person. it seems to us that to give to s. 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. even to say that such interpretation would reduce a notified person to beggary would not be accurate because the alms that he received, being his property, would stand attached. the apprehension expressed by the special court does not appear to be well founded: if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of s. 3(3). in any event, it is for parliament to enact a law that meets all contingencies. the courts must interpret the law as it reads. while a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of the provision. it is no doubt true that the law of limitation bars a remedy but not a right. [see bombay dyeing & manufacturing co. ltd. v. the state of bombay and others, air 1958 sc 338, savitra khandu beradi v. nagar agricultural sale and purchase co-operative society ltd. ahmednagar and others [air 1957 bom 178] 1957 indlaw mum 110 and hari raj singh v. sanchalak panchayat raj u.p. govt. lucknow and others [air 1968 all 246], 1967 indlaw all 16 but as observed hereinbefore, it would not be proper for us to consider as to whether such a remedy being not available, in terms of s. 4(2) of the act can still be determined if raised by way of defence. in l.s. synthetics ltd. 2004 indlaw sc 715 (supra), this court observed: "a statute of limitation bars a remedy and not a right. although a remedy is barred, a defence can be raised. in construing a special statute providing for limitation, consideration of plea of hardship is irrelevant. a special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. the intent and purport of parliament enacting the said act furthermore must be given its full effect. we are, therefore, of the opinion that the provisions of the limitation act have no application, so far as directions required to be issued by the special court relating to the disposal of attached property, are concerned." although, the court did not intend to enter into the correctness or otherwise of the said contention of the appellants at this stage, however, there cannot be any doubt whatsoever that they being notified persons, all their properties would be deemed to be automatically attached as a consequent thereto. for the said purpose, it is not necessary that they should be accused of commission of an offence as such. the principle of lifting the corporate veil, however, ipso facto would not apply to the individuals. the custodian in a case of this nature may, however, show that the transactions entered into apparently by harshad mehta were intimately connected with acquisition of properties in the name of others. a transaction of benami indisputably can be a subject matter of a lies in terms of s. 4(1) of the act as and when such a question is raised, the same may have to be dealt with by the special court appropriately. however, nexus between several persons in dealing with the matter may be established by the custodian. the fact, however, remains that the copies of the documents, books of accounts and other records on the basis whereof the auditors appointed by the court filed their reports had not been shown to the appellants herein, on the premise that they were in know of the things. as the said question has not been gone into by the learned judge, special court, it is necessary that the same be considered and appropriately dealt with. if the liabilities of the individual entities are not treated as that of the group, for one reason or the other, indisputably, liability of those who have nothing to do with the dealings of harshad mehta either in their individual capacities or as directors of some company or otherwise must be dealt with separately. a finding of fact arrived at upon discussing and analyzing the respective contentions could have gone a long way in assisting this court in arriving at a correct conclusion. the learned judge proceeded on the basis that the assets and liabilities, joint and collective, of all those who are related with harshad mehta as also the corporate entities in which he was a director or had some other interest must be considered as a group. even in this behalf, it was necessary for the special judge to assign sufficient and cogent reasons. it was, thus, necessary for the learned special court to arrive at a firm conclusion as regard the involvement of the individuals with harshad mehta, if any, and the extent of his liability as such. furthermore, the question as regard liability of the parties should have been determined at the stage of section 9-a of the act. in kedarnath jute mfg. co. ltd. 1971 indlaw sc 841 (supra), this court has held: "although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. it is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of rs 1,49,776 by means of the notice, dated november 21, 1957, during the pendency of the assessment proceedings before the income tax officer and before the finalisation of the assessment. it is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not prevail with regard to the quantum of liability etc." in board of control for cricket in india and another v. netaji cricket club and others [(2005) 4 scc 741] 2005 indlaw sc 1243, this court held: "it is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. in a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the board and its correlation with as to what transpired in the agm of the board held on 29-9-2004, the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake." in janak raj v. gurdial singh and anr. [1967 (2) scr 77], 1966 indlaw sc 120 this court confirmed a sale in favour of the appellant therein who was a stranger to the suit being the auction purchaser of the judgment-debtor's immovable property in execution of an ex parte money decree in terms of order xxxi rule 92, civil procedure code. despite the fact that ordinarily a sale can be set aside only under rules 89, 90 and 91 of order xxxi, it was opined that the court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application in term of rule 92 was made or when such application was made and disallowed and in support thereof zain-ul-abdin khan 1887 indlaw pc 13 (supra) and various other decisions were referred to. STATUTE the statement of objects and reasons for enacting the act reads as under: "(1) in the course of the investigations by the reserve bank of india, large scale irregularities and malpractices were noticed in transactions in both the government and other securities, indulged in by some brokers in collusion with the employees of various banks and financial institutions. the said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. (2) to deal with the situation and in particular to ensure speedy recovery of the huge amount involved, to punish the guilty and restore confidence in and maintain the basic integrity and credibility of the banks and financial institutions the special court (trial of offences relating to transactions in securities) ordinance, 1992, was promulgated on the 6th june, 1992. the ordinance provides for the establishment of a special court with a sitting judge of a high court for speedy trial of offences relating to transactions in securities and disposal of properties attached. it also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders. s. 3 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for appointment and functions of the custodian. s. 5 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for establishment of the special court. s. 7 of the special courts (trial of offences relating to transactions in securities) act, 1992 confers exclusive jurisdiction upon the special court. s. 9 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for the procedure and powers of the special court. s. 11 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for discharge of liabilities.

FACTS appellants consists of four brothers, their wives, children and their widowed mother. the eldest among them, harshad s. mehta, has since expired. the said nine flats, it is said, were merged and redesigned for joint living of the entire family. the appellants herein and the said late harshad mehta were persons notified in terms of the act which was enacted to provide for the establishment of a special court for the trial of offences relating to transactions in securities and for matters connected therewith. in terms of the provisions of the act, along with late harshad mehta, the custodian had notified 29 entities in terms of s. 3 of the act, comprising three of his younger brothers, wife of late harshad mehta, wives of two of his younger brothers and other corporate entities, a partnership firm and three hufs. however, out of the said 29 entitles, only late harshad mehta and two of his younger brothers were cited as accused in various criminal cases filed against them. the properties of late harshad mehta and the appellants, herein being notified persons stood attached in terms of the provisions of the act. a chartered accountants' firm was appointed by the learned special judge by an order to represent all notified entities in the family of late harshad mehta for the purpose of ascertaining their tax liabilities. misc. application being 4 of 2001 was filed by the custodian praying for the sale of commercial premises. applications praying for lifting of attachment on their residential premises on the ground that the same had been purchased much prior to 1st april,1991 and the same had no nexus with any illegal transactions in securities. alternatively, it was prayed that since their asset base was greater than genuine liabilities, the said residential premises should be released from attachment. the learned special judge allowed misc. applications nos. 4 of 2001 and 41 of 1999. the misc. applications filed by the appellants herein for release of the residential flats as well as the commercial premises from attachment were dismissed. ARGUMENT (i) some of the entities having their asset base much more than actual liability, the impugned judgments are unsustainable. there was no occasion for the custodian to club all the notified entities in one block so as to be termed as harshad mehta group and/or to club their assets and liabilities jointly. although in relation to a body corporate incorporated and registered under the indian companies act, the doctrine of lifting the corporate veil would be applicable, but the same cannot be applied in case of individuals. (ii) having regard to the fact that only three entitles out of eight were involved in the offences, the liability of harshad mehta could not have been clubbed for the purpose of directing attachment and consequent sale of the properties which exclusively belong to them. (iii) the liabilities of harshad mehta, who was a sui generis, could have been recovered from the properties held and possessed by him or from the companies floated by him but not from the individual entities; at least two of whom being medical practitioners have their income from other sources. (iv) the books of accounts and other documents on the basis whereof the auditor's report had been made having not been allowed to be inspected by the appellants herein on the plea that they had the knowledge thereabout, the same could not have been taken into consideration for the purpose of passing of the impugned order or otherwise. (v) the appellants having preferred appeals against the income tax orders of assessment passed by the authority and the same having been set aside, no liability to pay income tax by the appellants as of now being existing, the residential properties could not have been sold. (vi) drawing our attention to a representative chart showing the discrepancies in the accounts of mrs. deepika a. mehta as shown in (a) affidavit by the custodian; (b) books of accounts maintained by the appellants; and (c) auditor's report, it was submitted that the auditor's report could not have been relied upon. (vii) a copy of the auditor's report having only been supplied during pendency of these appeals, the learned special judge committed a serious error in passing the impugned judgment relying on or on the basis thereof. respondents. ISSUE (i)whether the appellants being not involved in offences in transactions in securities could have been proceeded against in terms of the provisions of the act. (ii) whether individual liabilities of the appellants ought to have been separately considered by the special court as not a part of harshad mehta group. (iii) whether the tax liabilities could not have been held to be due as the order of assessments did not become final and binding. (iv) whether the commercial properties could have been sold in auction. (v) whether the residential properties should have been released from attachment. ANALYSIS the act provides for stringent measures. it was enacted for dealing with an extra-ordinary situation in the sense that any person who was involved in any offence relating to transaction of any security may be notified whereupon, all his properties stand attached. the provision contained in the act being stringent in nature, the purport and intent thereof must be ascertained having regard to the purpose and object it seeks to achieve. the right of a person notified to file an application or to raise a defence that he is not liable in terms of the provisions of the act or in any event, the properties attached should not be sold in discharge of the liabilities can be taken at the initial stage by filing an application in terms of sub-s. (2) of s. 4 of the act. but, at the stage when liabilities are required to be discharged, the notified person may inter alia raise a contention inter alia for the purpose of establishing that the properties held and possessed by them are sufficient to meet their liabilities. in terms of the provisions of the act, the special court had been conferred a very wide power. the appellants herein are notified persons in terms of the provisions of the act. therefore, all the properties belonging to them stand attached. such attachment being automatic, no finding was required to be arrived at that the same had been acquired either during the notified period or the appellants were involved in offences in transactions in securities. in tejkumar balakrishna ruia v. a.k. menon and another [(1997) 9 scc 123] 1996 indlaw sc 2403, this court held: "in their view, the terms of sub-s. (3) of s. 3 are clear. by reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. the words "on and from the date of notification" indicate the point of time at which the attachment takes effect; this is reiterated by the words "shall stand attached simultaneously with the issue of the notification". this also indicates that no separate notification or order in regard to the attachment is necessary. neither the words "on and from the date of notification" nor the word 'property' lead to the conclusion that what is attached is not only that property which the notified person owned or was possessed of on the date of the notification but also all such property as he might acquire at any time thereafter. the intention to attach property which did not belong to the notified person on the date of the notification but which he might acquire later would, had it been there, have been clearly expressed and sub-s. (3) would have stated that such property would stand attached the moment it was acquired by the notified person. the act would also have made provision for a subsistence allowance or the like for the notified person. it seems to us that to give to s. 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. even to say that such interpretation would reduce a notified person to beggary would not be accurate because the alms that he received, being his property, would stand attached. the apprehension expressed by the special court does not appear to be well founded: if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of s. 3(3). in any event, it is for parliament to enact a law that meets all contingencies. the courts must interpret the law as it reads. while a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of the provision. it is no doubt true that the law of limitation bars a remedy but not a right. [see bombay dyeing & manufacturing co. ltd. v. the state of bombay and others, air 1958 sc 338, savitra khandu beradi v. nagar agricultural sale and purchase co-operative society ltd. ahmednagar and others [air 1957 bom 178] 1957 indlaw mum 110 and hari raj singh v. sanchalak panchayat raj u.p. govt. lucknow and others [air 1968 all 246], 1967 indlaw all 16 but as observed hereinbefore, it would not be proper for us to consider as to whether such a remedy being not available, in terms of s. 4(2) of the act can still be determined if raised by way of defence. in l.s. synthetics ltd. 2004 indlaw sc 715 (supra), this court observed: "a statute of limitation bars a remedy and not a right. although a remedy is barred, a defence can be raised. in construing a special statute providing for limitation, consideration of plea of hardship is irrelevant. a special statute providing for special or no period of limitation must receive a liberal and broader construction and not a rigid or a narrow one. the intent and purport of parliament enacting the said act furthermore must be given its full effect. we are, therefore, of the opinion that the provisions of the limitation act have no application, so far as directions required to be issued by the special court relating to the disposal of attached property, are concerned." although, the court did not intend to enter into the correctness or otherwise of the said contention of the appellants at this stage, however, there cannot be any doubt whatsoever that they being notified persons, all their properties would be deemed to be automatically attached as a consequent thereto. for the said purpose, it is not necessary that they should be accused of commission of an offence as such. the principle of lifting the corporate veil, however, ipso facto would not apply to the individuals. the custodian in a case of this nature may, however, show that the transactions entered into apparently by harshad mehta were intimately connected with acquisition of properties in the name of others. a transaction of benami indisputably can be a subject matter of a lies in terms of s. 4(1) of the act as and when such a question is raised, the same may have to be dealt with by the special court appropriately. however, nexus between several persons in dealing with the matter may be established by the custodian. the fact, however, remains that the copies of the documents, books of accounts and other records on the basis whereof the auditors appointed by the court filed their reports had not been shown to the appellants herein, on the premise that they were in know of the things. as the said question has not been gone into by the learned judge, special court, it is necessary that the same be considered and appropriately dealt with. if the liabilities of the individual entities are not treated as that of the group, for one reason or the other, indisputably, liability of those who have nothing to do with the dealings of harshad mehta either in their individual capacities or as directors of some company or otherwise must be dealt with separately. a finding of fact arrived at upon discussing and analyzing the respective contentions could have gone a long way in assisting this court in arriving at a correct conclusion. the learned judge proceeded on the basis that the assets and liabilities, joint and collective, of all those who are related with harshad mehta as also the corporate entities in which he was a director or had some other interest must be considered as a group. even in this behalf, it was necessary for the special judge to assign sufficient and cogent reasons. it was, thus, necessary for the learned special court to arrive at a firm conclusion as regard the involvement of the individuals with harshad mehta, if any, and the extent of his liability as such. furthermore, the question as regard liability of the parties should have been determined at the stage of section 9-a of the act. in kedarnath jute mfg. co. ltd. 1971 indlaw sc 841 (supra), this court has held: "although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. it is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of rs 1,49,776 by means of the notice, dated november 21, 1957, during the pendency of the assessment proceedings before the income tax officer and before the finalisation of the assessment. it is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not prevail with regard to the quantum of liability etc." in board of control for cricket in india and another v. netaji cricket club and others [(2005) 4 scc 741] 2005 indlaw sc 1243, this court held: "it is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. in a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the board and its correlation with as to what transpired in the agm of the board held on 29-9-2004, the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake." in janak raj v. gurdial singh and anr. [1967 (2) scr 77], 1966 indlaw sc 120 this court confirmed a sale in favour of the appellant therein who was a stranger to the suit being the auction purchaser of the judgment-debtor's immovable property in execution of an ex parte money decree in terms of order xxxi rule 92, civil procedure code. despite the fact that ordinarily a sale can be set aside only under rules 89, 90 and 91 of order xxxi, it was opined that the court is bound to confirm the sale and direct the grant of a certificate vesting the title in the purchaser as from the date of sale when no application in term of rule 92 was made or when such application was made and disallowed and in support thereof zain-ul-abdin khan 1887 indlaw pc 13 (supra) and various other decisions were referred to. STATUTE the statement of objects and reasons for enacting the act reads as under: "(1) in the course of the investigations by the reserve bank of india, large scale irregularities and malpractices were noticed in transactions in both the government and other securities, indulged in by some brokers in collusion with the employees of various banks and financial institutions. the said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. (2) to deal with the situation and in particular to ensure speedy recovery of the huge amount involved, to punish the guilty and restore confidence in and maintain the basic integrity and credibility of the banks and financial institutions the special court (trial of offences relating to transactions in securities) ordinance, 1992, was promulgated on the 6th june, 1992. the ordinance provides for the establishment of a special court with a sitting judge of a high court for speedy trial of offences relating to transactions in securities and disposal of properties attached. it also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders. s. 3 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for appointment and functions of the custodian. s. 5 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for establishment of the special court. s. 7 of the special courts (trial of offences relating to transactions in securities) act, 1992 confers exclusive jurisdiction upon the special court. s. 9 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for the procedure and powers of the special court. s. 11 of the special courts (trial of offences relating to transactions in securities) act, 1992 provides for discharge of liabilities.

leave granted in slp crl. no 37372014. these appeals are preferred by four accused against the common judgment of the high court of chhattisgarh at bilaspur confirming the judgment of the additional sessions judge bemetara district durg convicting the appellants u s 302 read with ss 34 and 120b of the indian penal code hereinafter referred to as ipc and sentencing each of them to undergo imprisonment for life with a fine of rs 1000 and in default to undergo additional rigorous imprisonment for three months. these appeals have been taken up for disposal together since they arise from a common judgment of the high court deciding the appeals of the accused. the appellant raju. devendra choubey accused no 4 has filed criminal appeal no 822 of 2012 the appellant mahesh accused no 3 has filed criminal appeal no 867 of 2013 the appellant beenu. chandra prakash accused no 2 has filed criminal appeal no 589 of 2014 the appellant smt. shashi tripathi accused no 1 has filed criminal appeal arising out of special leave petition criminal no 3737 of 2014. pw 1 dr. sharda prasad tripathi is the husband of accused shashi tripathi. on 25 11 2003when pw 1 dr. sharda prasad tripathi came home from his clinic found that his daughter in law bhavna tripathi has been murdered. he lodged a first information report f i r on 25 11 2003 at about 2045 hours. the crime was registered. he deposed in court that on 25 11 2003when he returned home he found servant anil kumar pw 21 was weeping. when he went inside he found his daughter in law bhavna and wife shashi lying in the courtyard. bhavna was dead. shashi was unconscious. there were numerous injuries including incised wounds on bhavna none on shashi. after registration of the crime inquest was conducted over the dead body of bhavna on 26 11 2003 post mortem was conducted by dr naresh tiwari and dr m deodhar who gave their report which is marked as exhibit p18 spot map was prepared by the inquiry officer io bloodstained cloth of accused shashi tripathi was taken into possession along with broken bangles bloodstained cement mortar and plain cement mortar were also taken into possession. shashi tripathi mahesh and binu. chandra prakash were arrested on 29 11 2003 a bloodstained knife was taken into possession. the accused raju. devendra choubey was taken into custody on 22 12 2003 and a suzuki motorcycle was also taken into possession. a test identification was conducted by the executive magistrate in the sub jail bemetara on 13 12 2003 a similar identification parade of raju. devendra choubey was conducted on 26 12 2003 after his arrest. a sealed packet containing hair found in the grip of the deceased and another sealed packet containing bloodstained cloth of the deceased were taken into possession vide exhibit p35. after committal the trial court framed charges u s 302 read with ss 34 and 120b of the ipc the prosecution examined 32 witnesses. no defence witness was examined after the statements of the accused were recorded u s 313 of the criminal procedure code1973. according to the prosecution the accused shashi tripathi is the step mother in law of deceased bhavna tripathi. bhavna was married to her step son jitendra kumar in july2003 shashi tripathi used to be annoyed with bhavna tripathi on account of some domestic dispute. she engaged the other accused for murdering bhavna. bhavna was murdered on 25 11 2003 at about 1830 hours in the house where she resided with shashi tripathi. there is no dispute that bhavna 's death is homicidal. dr m deodhar who conducted the postmortem opined that cause of her death was neurogenic and hemorrhagic shock. the injuries found on person of the deceased were as follows external injuries 1 incised wound on left scapular region of size 3 cm x 1 cm 2 incised wound on left scapular region of size 4 cm x 1 cm. x 1 cm 3. one incised wound on left auxiliary region on the posterior auxiliary region of size 3 cm x 2 cm x 3 cm. 4 incised wound on lower costal region left of size. 3 cm x 2 cm x 1 cm 5 incised wound on lower costal region right side on right epigestic region of size 3 cm. x 3 cm with punctured wound 6 incised wound over right costal region of size 3 cm x 2 cm x 1 cm. 7 incised wound on right supra mammary region near middle of size 4 cm x 1 cm x 1 cm 8 incised wound on right supra mammary region lateral aspect of size 3 cm x 1 cm x 1 cm 9 incised wound on radial aspect of left forearm near wrist joint of size 2. cm x cm x cm 10 incised wound on forearm left hand radial side dorsal aspect on lower 23rd region 11 incised wound on left forearm middle l3rd region radial side and posterior aspect of size 2. x 1 cm x 1 cm 12 incised wound on left hand dorsal aspect on 2 nd and 3rd metacarpal region of size 2 cm. x cm. x 1 cm 13 incised wound on ulna region of left hand on lower 13rd region of size 1 cm. x cm x 1 cm and 14 incised wound over left side of neck on anterior triangle of size 2 cm. x 1 cm. internal injuries brain membrane pale lungs trachea pale punctured wound on right and left lungs of size 2 cm x 1 cm2 cm and 1 cm. x 3 cm lobe was cut and there was 3 cm punctured wound. incised wound was also present on the right lobe of size 3 cm x 13 cm x 3 cm. liver kidney and spleen were pale. the deceased was carrying fetus of two months. the sole eyewitness was a boy of 13 years of age anil kumar pw 21who worked as a servant with the family. shashi tripathi had brought him home from bilaspur. he participated in the identification parade which was held in sub jail bemetara and identified the accused persons in the court by touching them. we have carefully examined the manner in which the identification parade was conducted and the manner in which the boy anil kumar pw 21 identified the accused in court and we have no reason to doubt the identification of the accused which assumes importance in this case since the boy did not know the accused before the incident. it is anil kumar pw 21who first informed the head of the family dr sharda prasad tripathi pw 1the complainant about the incident when he came home after closing his clinic. he deposed before the court that shashi didi accused brought him to village jevra from bilaspur. he lived in the house of shashi didi. he ate his food there and studied in a school. he deposed that doctor sahab is her husband and shivendra and jitendra are her sons. jitendra is her step son and the deceased bhavna is the wife of jitendra. she resided with shashi didi. jitendra is a doctor resided and practiced at khamaria whereas his wife resided at jevra. his brother shivendra studies at calcutta. he referred to bhavna as bhabhi. he stated that shashi didi and bhavna sometimes used to quarrel. about the assault he deposed that devendra caught bhavna and chandra prakash attacked her with knife 3 to 4 times and she fell down. the incident occurred in the courtyard and shashi didi was present in the passage. mahesh the fourth accused was standing outside the house. after the assault chandra prakash went to the tv room where shashi didi had kept some money in a rubber band on the table. the accused chandra prakash had threatened him not to disclose anything about the incident to anyone. thereafter all the three accused fled from there. he further deposed that shashi didi took him upstairs to the terrace and asked him not to disclose the truth to anyone but to say that thieves came into the house and committed the crime. shashi didi thereafter started shouting. then she lay down on the courtyard near bhavna bhabhi. this deposition clearly implicates accused nos 12 and 4 the picture that emerges is that shashi tripathi caused bhavna to be killed and for this purpose engaged chandra prakash accused no 2 and raju. devendra choubey accused no 4 by paying them money. she also seems to have had a scuffle with bhavna which is apparent from the fact that her hair was found in the grip of the deceased during investigation. it is obvious that accused nos 2 and 4 did not enter the house to commit a robbery and had a single mission namely to kill bhavana. there is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers. the prosecution has found it difficult to pinpoint the motive but shashi tripathi 's husband dr sharda prasad tripathi pw 1 deposed before the court that she tried to create a hindrance in the marriage of his son jitendra since she wanted her daughter abhilasha to marry him however he went ahead with the marriage of jitendra to bhavna whereupon shashi tripathi remained silent. the credibility of the evidence of anil kumar pw 21 was attacked by the learned counsel for the appellants who submitted that the boy is a tutored witness who has been influenced by the police with whom he spent a lot of time. in fact he even came to the court in the company of a police constable after being served summons at allahabad. the learned counsel submitted that the evidence of a child witness must be carefully scrutinized before acceptance since a child can be easy prey for tutoring and the court must insist on corroboration from other evidence. on a careful perusal of the deposition of this child witness we have not found any reason why he would have lied. he was brought to the house by shashi tripathi accusedwho apparently took care of him and sent to school and gave him food and residence. he had no grouse against her neither any ulterior motive in identifying the accused who were not acquainted to him. there was no reason for the sole eye witness anil pw 21 to implicate anybody falsely. merely because he has been some time in the company of the police at the police station his testimony can not be discarded as untrue. the incident occurred within the four walls of the house of the accused shashi tripathi and the only witness was the boy anil. pw 21 his statement that the accused chandra prakash attacked the deceased is corroborated by the recovery of knife from chandra prakash. it must be remembered that the boy comes from a rural back ground and was 13 years of age when the incident occurred. his presence in the house is entirely natural and we have no reason to discard his testimony. the learned counsel for the appellants forcefully attacked the conviction of the other accused viz mahesh chandra prakash and devendra kumar who admittedly were not known to the child witness anil kumar. it was submitted that the test identification parade were delayed and the identification of these accused by the witness in court was not reliable. it is not possible for us to accept this contention. mahesh and chandra prakash were arrested on 29 11 2003their identification parade was conducted on 13 12 2003 within a fortnight or so. the accused devendra kumar was arrested on 22 12 2003 and his identification parade was conducted on 26 12 2003 within four days there is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. in any case the period between the arrest and the identification parade was not large enough to constitute inordinate delay. the learned counsel for the appellants relied upon the judgment of this court in budhsen and anr. state of u p 1970 2 scc 128 1970 indlaw sc 136 where this court made the following observations 7 now facts which establish the identity of an accused person are relevant u s 9 of the indian evidence act. as a general rule the substantive evidence of a witness is a statement made in court. the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. the purpose of a prior test identification therefore seems to be to test and strengthen the trustworthiness of that evidence. it is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them in the form of earlier identification proceeding. there may however be exceptions to this general rule when for example the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. the identification parades belong to the investigation stage. they are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence who were not previously known to them. this serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. identification proceedings in their legal effect amount simply to this that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. they do not constitute substantive evidence. these parades are of the essentially governed by section 162criminal procedure code. it is for this reason that the identification parades in this case seem to have been held under the supervision of a magistrate. keeping in view the purpose of identification parades the magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. they must therefore take intelligent interest in the proceedings bearing in mind two considerations i that the life and liberty of an accused may depend on their vigilance and caution and ii that justice should be done in the identification. those proceeding should not make it impossible for the identifiers who after all have as a rule only fleeting glimpses of the person they are supposed to identify. generally speaking the magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. the power to identify it may be kept in view varies according to the power of observation and memory of the person identifying and each case depends on its own facts but there are two factors which seem to be of basic importance in the evaluation of identification. the persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. the identification to be of value should also be held without much delay. the number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. the evidence as to identification deserves therefore to be subjected to a close and careful scrutiny by the court. the observations of this court undoubtedly lay down the correct law and we have no reason to doubt them. we however do not see how the observations help the appellants. in the present case the child witness has been found to be reliable. his presence is not doubted since he resided with the family for whom he worked. he had no axe to grind against any of the accused. he became the unfortunate witness of a gruesome murder and fearlessly identified the accused in court. in his deposition he specified the details of the part which the accused played with reasonable particularity. in such a situation it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in court as to the identity of the accused who are strangers to them in the form of earlier identification proceeding as observed by this court in budhsen 's case 1970 indlaw sc 136 supra. this court has not laid down the requirement in general that all identification parades must be under the supervision of a magistrate as in budhsen 's case 1970 indlaw sc 136 supra the learned counsel for the appellants also relied upon the judgments of this court in subash and shiv kumar vs. state of u p 1987 3 scc 331 1987 indlaw sc 28887and mohd abdul hafeez vs. state of andhra pradesh air 1983. sc 367 1982 indlaw sc 63 the facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. suffice it to say that those cases do not create any doubt as regards the conviction in this case. mr p c agrawala learned senior counsel for the appellant mahesh accused no 3vehemently submitted that this accused ought not to have been convicted u s 302 with the aid of ss 34 and 120 b of ipc in particular it was submitted that the role attributed to the accused was that he merely stood outside the house. he did not even act as a guard because when the witness anil kumar pw 21 came to the house he was not even stopped by the accused from entering the house. the learned counsel for mahesh accused no 3 relied on several decisions of this court in suresh sakharam nangare vs. state of maharashtra 2012 9 scc 249 2012 indlaw sc 304jai bhagwan vs. state of haryana air 1999 sc 1083 1999 indlaw sc 391 and ramashish yadav vs. state of bihar 1999 8 scc 555 1999 indlaw sc 693. it is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in it must go to the accused vide baliya vs. state of m p 2012. 9 scc 696 2012 indlaw sc 343. on a careful conspectus of the facts and the law we are of the view that the prosecution has failed to prove the guilt of mahesh beyond reasonable doubt. there is no evidence of his having played any part in the crime. he was merely seen by the witness as standing outside the house when the witness came home. mahesh did not even act as a guard he did not prevent anil kumar pw 21 from entering the house. there is no evidence of the formation or sharing of any common intention with the other accused. there is no reference to a third person in the fir no evidence that he came with the other accused or left with them. no weapon was seized from him nor was any property connected with the crime seized. having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict mahesh of the offence of murder with the aid of ss 34 and 120b. we therefore hold that the accused mahesh accused no 3 in criminal appeal no 867 of 2013 is innocent and the conviction against him is set aside. his bail bonds stand cancelled and sureties are discharged. in view of the above criminal appeal no 867 of 2013 is allowed and criminal appeal nos 822 of 2012589 of 2014 and criminal appeal arising out of slp criminal no 3737 of 2014 are dismissed. appeals disposed of.

FACTS the appellant -raju (accused no.4) has filed criminal appeal no.822 of 2012. the appellant -mahesh (accused no.3) has filed criminal appeal no.867 of 2013. the appellant -beenu (accused no.2) has filed criminal appeal no.589 of 2014. the appellant -smt.shashi tripathi (accused no.1) has filed criminal appeal arising out of special leave petition (criminal) no.3737 of 2014. pw-1 -dr.sharda prasad tripathi is the husband of accused shashi tripathi. on 25.11.2003,when pw-1 -dr.sharda came home from his clinic,found that his daughter-in-law bhavna tripathi has been murdered. he lodged a f.i.r on 25.11.2003. when he went inside,he found his daughter-in-law -bhavna and wife -shashi lying in the courtyard. bhavna was dead. shashi was unconscious. there were numerous injuries,including incised wounds on bhavna,none on shashi. after registration of the crime,inquest was conducted over the dead body of bhavna on 26.11.2003. post mortem was conducted and the report is marked as exhibit p/18. spot map was prepared by the inquiry officer (io); bloodstained cloth of accused shashi tripathi was taken into possession along with broken bangles; bloodstained cement mortar and plain cement mortar were also taken into possession. shashi tripathi,mahesh and binu @ chandra prakash were arrested on 29.11.2003. a bloodstained knife was taken into possession. the accused raju was taken into custody on 22.12.2003 and a suzuki motorcycle was also taken into possession. a test identification was conducted by the executive magistrate. a similar identification parade of raju was conducted after his arrest. the sole eyewitness was a boy of 13 years of age -anil kumar (pw-21),who worked as a servant with the family. shashi tripathi had brought him home from bilaspur. he participated in the identification parade,which was held in sub jail,bemetara,and identified the accused persons in the court by touching them. he stated that shashi didi and bhavna sometimes used to quarrel. ARGUMENT this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc. in particular it was submitted that the role attributed to the accused was that he merely stood outside the house. he did not even act as a guard because when the witness anil kumar (pw-21) came to the house,he was not even stopped by the accused from entering the house. this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc. in particular it was submitted that the role attributed to the accused was that he merely stood outside the house. he did not even act as a guard because when the witness anil kumar came to the house,he was not even stopped by the accused from entering the house. ANALYSIS it is obvious that accused nos.2 and 4 did not enter the house to commit a robbery and had a single mission,namely,to kill bhavana. there is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers. on a careful perusal of the deposition of this child witness,the court did not find any reason why he would have lied. he was brought to the house by shashi tripathi (accused),who apparently took care of him and sent to school and gave him food and residence. he had no grouse against her neither any ulterior motive in identifying the accused,who were not acquainted to him. there was no reason for the sole eye witness -anil (pw-21) to implicate anybody falsely. merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue. the incident occurred within the four walls of the house of the accused -shashi tripathi and the only witness was the boy -anil (pw-21). the accused devendra kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003-(within four days). there is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. in any case,the period between the arrest and the identification parade was not large enough to constitute inordinate delay. in the present case,the child witness has been found to be reliable. his presence is not doubted,since he resided with the family for whom he worked. he had no axe to grind against any of the accused. he became the unfortunate witness of a gruesome murder and fearlessly identified the accused in court. in his deposition he specified the details of the part which the accused played with reasonable particularity. in such a situation,it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in court as to the identity of the accused who are strangers to them,in the form of earlier identification proceeding,as observed by this court in budhsen's case 1970 indlaw sc 136 (supra). this court has not laid down the requirement in general that all identification parades must be under the supervision of a magistrate as in budhsen's case 1970 indlaw sc 136 (supra). the facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. suffice it to say that those cases do not create any doubt as regards the conviction in this case. common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in,it must go to the accused. the prosecution has failed to prove the guilt of mahesh beyond reasonable doubt. there is no evidence of his having played any part in the crime. he was merely seen by the witness as standing outside the house when the witness came home. mahesh did not even act as a guard; he did not prevent anil kumar (pw-21) from entering the house. there is no evidence of the formation or sharing of any common intention with the other accused. there is no reference to a third person in the fir; no evidence that he came with the other accused or left with them. no weapon was seized from him,nor was any property connected with the crime,seized. having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict mahesh of the offence of murder with the aid of ss.34 and 120(b). STATUTE after committal,the trial court framed charges u/s.302 read with ss.34 and 120b of the ipc. the prosecution examined 32 witnesses. no defence witness was examined after the statements of the accused were recorded u/s.313 of the criminal procedure code,1973.

FACTS the appellant -raju (accused no.4) has filed criminal appeal no.822 of 2012. the appellant -mahesh (accused no.3) has filed criminal appeal no.867 of 2013. the appellant -beenu (accused no.2) has filed criminal appeal no.589 of 2014. the appellant -smt.shashi tripathi (accused no.1) has filed criminal appeal arising out of special leave petition (criminal) no.3737 of 2014. pw-1 -dr.sharda prasad tripathi is the husband of accused shashi tripathi. on 25.11.2003,when pw-1 -dr.sharda came home from his clinic,found that his daughter-in-law bhavna tripathi has been murdered. he lodged a f.i.r on 25.11.2003. the crime was registered. he deposed in court that on 25.11.2003,when he returned home,he found servant anil kumar (pw-21) was weeping. when he went inside,he found his daughter-in-law -bhavna and wife -shashi lying in the courtyard. bhavna was dead. shashi was unconscious. there were numerous injuries,including incised wounds on bhavna,none on shashi. after registration of the crime,inquest was conducted over the dead body of bhavna on 26.11.2003. post mortem was conducted and the report is marked as exhibit p/18. spot map was prepared by the inquiry officer (io); bloodstained cloth of accused shashi tripathi was taken into possession along with broken bangles; bloodstained cement mortar and plain cement mortar were also taken into possession. shashi tripathi,mahesh and binu @ chandra prakash were arrested on 29.11.2003. a bloodstained knife was taken into possession. the accused raju was taken into custody on 22.12.2003 and a suzuki motorcycle was also taken into possession. a test identification was conducted by the executive magistrate. a similar identification parade of raju was conducted after his arrest. the sole eyewitness was a boy of 13 years of age -anil kumar (pw-21),who worked as a servant with the family. shashi tripathi had brought him home from bilaspur. he participated in the identification parade,which was held in sub jail,bemetara,and identified the accused persons in the court by touching them. he stated that shashi didi and bhavna sometimes used to quarrel. ARGUMENT this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc. in particular it was submitted that the role attributed to the accused was that he merely stood outside the house. he did not even act as a guard because when the witness anil kumar (pw-21) came to the house,he was not even stopped by the accused from entering the house. this accused ought not to have been convicted u/s.302 with the aid of ss.34 and 120 (b) of ipc. in particular it was submitted that the role attributed to the accused was that he merely stood outside the house. he did not even act as a guard because when the witness anil kumar came to the house,he was not even stopped by the accused from entering the house. ANALYSIS shashi tripathi caused bhavna to be killed and for this purpose engaged chandra prakash (accused no.2) and raju @ devendra choubey (accused no.4) by paying them money. she also seems to have had a scuffle with bhavna,which is apparent from the fact that her hair was found in the grip of the deceased during investigation. it is obvious that accused nos.2 and 4 did not enter the house to commit a robbery and had a single mission,namely,to kill bhavana. there is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers. on a careful perusal of the deposition of this child witness,the court did not find any reason why he would have lied. he was brought to the house by shashi tripathi (accused),who apparently took care of him and sent to school and gave him food and residence. he had no grouse against her neither any ulterior motive in identifying the accused,who were not acquainted to him. there was no reason for the sole eye witness -anil (pw-21) to implicate anybody falsely. merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue. the incident occurred within the four walls of the house of the accused -shashi tripathi and the only witness was the boy -anil (pw-21). the accused devendra kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003-(within four days). there is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. in any case,the period between the arrest and the identification parade was not large enough to constitute inordinate delay. in the present case,the child witness has been found to be reliable. his presence is not doubted,since he resided with the family for whom he worked. he had no axe to grind against any of the accused. he became the unfortunate witness of a gruesome murder and fearlessly identified the accused in court. in his deposition he specified the details of the part which the accused played with reasonable particularity. in such a situation,it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in court as to the identity of the accused who are strangers to them,in the form of earlier identification proceeding,as observed by this court in budhsen's case 1970 indlaw sc 136 (supra). this court has not laid down the requirement in general that all identification parades must be under the supervision of a magistrate as in budhsen's case 1970 indlaw sc 136 (supra). the facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. suffice it to say that those cases do not create any doubt as regards the conviction in this case. common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in,it must go to the accused. the prosecution has failed to prove the guilt of mahesh beyond reasonable doubt. there is no evidence of his having played any part in the crime. he was merely seen by the witness as standing outside the house when the witness came home. mahesh did not even act as a guard; he did not prevent anil kumar (pw-21) from entering the house. there is no evidence of the formation or sharing of any common intention with the other accused. there is no reference to a third person in the fir; no evidence that he came with the other accused or left with them. no weapon was seized from him,nor was any property connected with the crime,seized. having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict mahesh of the offence of murder with the aid of ss.34 and 120(b). STATUTE after committal,the trial court framed charges u/s.302 read with ss.34 and 120b of the ipc. the prosecution examined 32 witnesses. no defence witness was examined after the statements of the accused were recorded u/s.313 of the criminal procedure code,1973.

ujjagar singh the appellant herein a resident of village bangawali tehsil malerkotla was tried and convicted by the additional sessions judge sangrur for the murder of his niece mukhtiar kaur and was awarded the death penalty. in addition he was convicted for an offence punishable section 376 of the ipc and sentenced to undergo rigorous imprisonment for 10 years and to a fine of rs 5 000 and in default of payment to undergo further r i for one year and section 309 of the ipc to a sentence of simple imprisonment for one year. the aforesaid convictions and sentences have been maintained by the high court and the matter is before us in these proceedings by way of special leave. the facts of the case are as under. at about 2 00 p m on 10th november 2002 a boy whose identity is not forthcoming informed satnam singh pw2 that an incident of firing had taken place in the house of ujjagar singh situated in the fields on the outskirts of the village. satnam singh conveyed this information to sarpanch jora singh pw1 who was attending a marriage at that time. jora singh accompanied by gurdeep singh pw3 thereupon rushed to ujjagar singh 's house and found mukhtiar kaur lying dead with a gun shot injury and the appellant also with a gun shot injury lying unconscious on the ground in the adjoining room. jora singh and gurdeep singh immediately removed ujjagar singh to the civil hospital dhuri in the jeep belonging to kulwant singh pw4. jora singh also met inspector harjinder pal singh pw14 at 4 40 p m near the hospital who recorded his statement at that place and with his endorsement exhibit p a sent it to police station dhuri where the formal fir was registered at about 4 45 p m with the special report being delivered to the illaka magistrate at dhuri itself at 6 20 p m the same evening. the facts as narrated were that arjan singh of village bangawali had three sons puran singh ujjagar singh appellant and ajmer singh. puran singh had died about 20 years earlier leaving behind his wife two sons and a daughter mukhtiar kaur. the two sons and the wife also died long before the incident and mukhtiar kaur the sole surviving member of this branch of the family had been married to balwinder singh pw9 about 9 or 10 years earlier. puran singh had however transferred 30 or 35 bighas of agricultural land falling to his share after the death of his father in the name of the appellant 's sons by a collusive decree in the year 1994 and the suggestion was that this transaction had been objected to by mukhtiar kaur who was demanding that the land be returned to her. it appears that mukhtiar kaur 's relations with her in laws had got strained and she had left her matrimonial home and come to live with ujjagar singh her uncle 7 or 8 months earlier and the suggestion was that mukhtiar kaur had been killed by the appellant with his licensed gun and he had thereafter attempted to commit suicide. having recorded the aforesaid facts in the fir pw14 inspector harjinder pal singh reached the place of incident and lifted one spent 12 bore cartridge case shaktiman make from near mukhtiar kaur 's dead body and one dbbl gun from the place where ujjagar singh appeared to have been shot and another spent cartridge case was recovered from the right barrel of the gun. after completion of the investigation at the spot mukhtiar kaur 's dead body was sent for its post mortem examination. the post mortem examination was also conducted by pw5 dr ishwar singh medical officer civil hospital along with dr harwinder kaur pw17 and it was found that mukhtiar kaur had two gunshot injuries on her dead body a wound of entry on the back of right side of chest 2 cm x 1 cm with margining and blackening and a corresponding exit wound of 5 cm x 3 5 cm to the front of the right side of the chest. dr harwinder kaur aforesaid also took swabs from the vagina of the deceased and as per the chemical examiner 's report dated 2 1 2003 semen was found on the swab taken from the vagina and from the underwear that mukhtiar kaur had been wearing at the time of her death. the weapon and the recovered cartridge cases had also been sent to the forensic science laboratory which in its report dated 4 8 2004 opined that the crime cartridge case ci could have been fired by the right barrel of the weapon whereas the crime cartridge case c2 had been fired from the right barrel. on the completion of the investigation a charge sheet under sections 302 376 and 309 of the ipc was filed against the accused and as he pleaded not guilty he was brought to trial. during the trial jora singh pw1 satnam singh pw2 gurdeep singh pw3 and kulwant singh pw4 resiled from their statements given to the police and were declared hostile. balwinder singh pw9 however supported the prosecution case deposing that the land had in fact been got transferred from gurmail kaur mother of mukhtiar kaur to ujjagar singh by fraud and mukhtiar kaur was therefore entitled to its return. he also deposed that mukhtiar kaur had told him some time earlier that the accused had been beating her and had also committed sexual intercourse with her and that at about 11 p m on 10 11 2002 karam singh pw10 had informed him as to what had transpired on which he along with his father hamir singh pw12 and several others had rushed to bangawali. pw10 karam singh aforesaid confirmed the story given by balwinder singh. the prosecution also relied on the statements of dr vijay kumar pw6 of the civil hospial dhuri who testified that the appellant had been brought to the hospital at about 2 45 p m on 10 11 2002 with a serious gun shot injury dr ripan miglani pw15 of the dayanand medical college hospital ludhiana who deposed that he had been admitted to the department of neuro surgery with a serious gun shot injury and dr sanjay uppal pw16 a plastic surgeon who disclosed that the appellant had been under his treatment for almost 5 weeks and the burnt area around the firearm injury had been removed by him. the prosecution also placed reliance on the statement of asi jasbir singh pw11 who had accompanied inspector harjinder pal singh pw14 to the place of incident and supported the recoveries made from the spot. the prosecution case was then put to the accused and his statement recorded section. 313 of the cr. p c in reply to question 33 he stated as under i am innocent. i have been implicated falsely in this case. i was treating mukhtiar kaur as my daughter and loved her as my daughter. false allegations have been levelled against me. i never harassed mukhtiar kaur nor ever got her land mutated from her mother by fraud. i have not killed mukhtiar kaur. mother of mukhtiar kaur got the land mutated by her own free will and mukhtiar kaur had no dispute about it. balwinder singh her husband was addicted to vices and used to beat her due to which she used to remain under depression and sick generally and used to come to me as my daughter. my house kothi is situated on the outer skirts of village bangawali and door planks had not been fixed so far to rooms. some body suddenly came and fired at me. i fell down on the ground and became unconscious. therefore i could not see what had happened to mukhtiar kaur as she was in other room. later on i came to know that some body had fired at her and she died. i regained consciousness in hospital. the story of rape by me with her has been fabricated by her husband as he is inimical towards me. even i do not know who took me to hospital. i have been implicated in this case falsely. the trial court and the high court relying on the circumstances available on the evidence convicted and sentenced the appellant as already mentioned above. mr goburdhan the learned counsel for the accused has raised several arguments in the course of hearing. he has pointed out that there was absolutely no evidence to suggest that mukhtiar kaur had been subjected to rape and in this view of the matter the very basis for the imposition of the death penalty was not made out. he has also pointed out that there were no eye witnesses to the incident and the 4 witnesses i e jora singh and others who had reached the place of incident and carried the injured appellant to the hospital had also resiled and as the prosecution story now rested on circumstantial evidence alone it was imperative for the investigating officer to have taken the finger prints from the weapon and that in any case the recovery of the spent cartridges and the gun were clearly suspicious as the weapon had been sent to the laboratory after an inordinate delay. it has also been submitted that in a case of attempted suicide a firearm must of necessity be used from a very close range and the absence of any blackening charring or burning around the wound on ujjagar singh clearly ruled out the possibility of such an attempt. it has finally been submitted that the land had been transferred in the name of ujjagar singh 's sons in the year 1994 by gurmail kaur mother of mukhtiar kaur by a collusive decree and there was no evidence to show that mukhtiar kaur had ever displayed any unhappiness or made any complaint to any person or any authority with regard to the decree and as such the very basis of the prosecution story did not exist. the learned state counsel has however supported the judgment of the courts below. he has further emphasized that the prosecution 's case stood proved from various factors including the medical evidence the reports of the forensic science laboratory the chemical examiner from the post mortem reports and the recovery of the gun and cartridges. we have heard the learned counsel for the parties and gone through the record. we first take up for consideration the question of the conviction section 376 of the ipc. we find from the medical evidence and from the chemical examiner 's reports that the vaginal swab and clothes taken from the dead body did indicate the presence of semen. there is however absolutely no evidence to suggest even assuming that the intercourse had been committed by the appellant that he had done so without mukhtiar kaur 's consent or against her will. some suspicions of rape could perhaps have been raised had some tell tale injuries been detected on mukhtiar kaur 's person but we find that the two injuries other than the gun shot wounds i e injury no 3 being on the left pinna and. No 4 an abrasion near the right eye do not indicate any attempt to rape or the commission of rape. it is also significant that the investigators had made no attempt whatsoever to have the appellant medically examined to ascertain his capacity to perform sexual intercourse. the learned state counsel relying on the statement of pw14 inspector harjinder pal singh has however submitted that the examination had not been possible as the appellant had received a very serious gun shot injury and was hanging between life and death. we agree with the submission of the learned counsel that an examination could not have been carried out immediately. but we see no justification in the omission of the prosecution to have him examined after he had recovered his health and been discharged from hospital. we are further of the opinion that even assuming for a moment that sexual intercourse between the two had indeed taken place it can not be said from the evidence before us that it was without the consent or against the wishes of mukhtiar kaur. we therefore find that ujjagar singh 's conviction section 376 of the ipc can not be sustained. mr goburdhan has placed great emphasis on the fact that as the four witnesses who had reached the place of incident i e jora singh satnam singh gurdeep singh and kulwant singh had resiled from their statements and had disowned their initial stories the prosecution had of necessity to rely on circumstantial evidence and if the chain of circumstances remained incomplete or even if one link in the chain was broken the prosecution must fail. he has also relied on the judgment of balu sonba shinde v state of maharashtra 2002 7 scc 543 2002 indlaw sc 1923 to contend that it was open to the accused to take advantage insofar as possible from the statement of a witness though declared hostile and the four witnesses having disowned the prosecution story and having given a different version the appellant was entitled to derive such benefit as possible in this situation. the learned state counsel has however emphasized that both the trial court and the high court had for good reasons opined that the circumstances made out a case for conviction and the accused having given a counter version some obligation lay on him as well to explain the circumstances against him inasmuch that admittedly he and the victim were alone in the house at the time of the incident. reliance for this argument has been placed on the decision of raj kumar prasad tamarkar v state of bihar anr 20071. scale 19 2007 indlaw sc 5. we have considered their arguments very carefully. in mahmood v state of u p 1976 1 scc 542 1975 indlaw sc 643 it has been observed that in a case dependent wholly on circumstantial evidence the court must be satisfied athat the circumstances from which the inference of guilt is to be drawn have been fully established by unimpeachable evidence beyond a shadow of doubt bthat the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused and cthat the circumstances taken collectively are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. in this case this court held that the omission of the prosecution inter alia to have the finger prints found on the alleged murder weapon was fatal to the prosecution story. in 1984 4 scc 116 sharad birdhichand sarda v state of maharashtra 1984 indlaw sc 432 this court discussed the ratio of the judgments in hanumant v state of m p air 1952 sc 343 1952 indlaw sc 89 tufail alias simmi v state of u p 1969 3 scc 198 1969 indlaw sc 573 and ramgopal v state of maharashtra 1972 4 scc 625 1971 indlaw sc 555 and shivaji sahabrao bobade v state of maharashtra 1973 2 scc 793 1973 indlaw sc 181 and observed thus a close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established 1the circumstances from which the conclusion of guilt is to be drawn should be fully established. it may be noted here that this court indicated that the circumstances concerned must or should and not may be established. there is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this court in shivaji sahabrao bobade v state of maharashtra 1973 indlaw sc 181 where the following observations were made. certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be is long and divides vague conjectures from sure conclusions. 2the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty 3the circumstances should be of a conclusive nature and tendency 4they should exclude every possible hypothesis except the one to be proved and 5there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. mr goburdhan has also cited mahmood v state of u p 1976 1 scc 542 1975 indlaw sc 643 shankarlal gyarasilal dixit v state of maharashtra 1981 2 scc 35 1980 indlaw sc 47 sharad birdhichand sarda v state of maharashtra 1984 4 scc 116 1984 indlaw sc 432 omwati smt and ors v mahendra singh. 1998 9 scc 81 1997 indlaw sc 1403 sudama pandey ors v state of bihar 2002 1 scc 679 2001 indlaw sc 21243 and r r khanna reddy anr. v state of a p 2006 10 scc 172 2006 indlaw sc 144 in support of his plea relating to the evaluation of circumstantial evidence. these judgments have broadly followed the principles laid down in the judgments referred to above and need not therefore be dealt with us in extenso. it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. it is in this background that we must examine the circumstances in the present case. a few facts stand out from the prosecution story. first the place of incident being adjoining rooms in the residential house of the appellant and the fact that the alleged murder weapon is his licensed dbbl gun is proved on record. the evidence also reveals that the appellant was living in the premises along with his wife mother and son and two daughters who were studying outside the village were frequent visitors but it is the admitted position that nobody but the appellant and the deceased were present at the time of incident. it is also clear from the evidence that the two spent cartridge cases recovered one from near mukhtiar kaur 's dead body and the second from the right barrel of the gun lying near the appellant had been sent to the forensic science laboratory which opined that one of the cartridges had been fired from the gun and the other could have been fired therefrom. mr goburdhan has however laid great emphasis on the fact that no reference to the gun or cartridges had been made in the inquest report and that in any case the weapon and the spent cartridges had been sent to the laboratory belatedly. we are of the opinion however that no adverse inference can be drawn from either of these circumstances. the aforesaid articles had been carried to the laboratory by constable gopal singh who in his affidavit dated 17th march 2003 deposed that he had first taken the articles to the laboratory on 9th december 2002 but they had been returned by the director on the ground that the seals affixed thereon were not of the requisite number and that after removing the objections raised by the director the articles aforesaid had been returned to the laboratory on 18th december 2002. gopal singh was cross examined by the prosecution. and but for some inconsequential questions put to him with regard to the seals not even a suggestion was made that the aforesaid articles had in any way been tampered with. it is true as contended that in column 22 of the inquest report which refers to the articles found near the dead body there is no reference to the spent cartridges or the murder weapon but we find from a perusal of the site plan exh. pjj prepared by the investigating officer inspector harjinder pal singh pw14 on 10th november 2002 that the weapon is shown lying close to the place where the appellant had been found unconscious and a spent cartridge recovered from near the dead body of mukhtiar kaur. it has also been submitted by mr goburdhan that there appeared to be no motive for the incident as the story about mukhtiar kaur 's unhappiness about the transfer of land to the sons of ujjagar singh sought to be proved by pw9 balwinder singh and pw10 karam singh had been disbelieved by the high court with the observation that the statements of these two witnesses could not be relied upon. it is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and to use the clichi. the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. there is however a hint in the testimony of pw14 inspector harjinder pal singh that his enquiries had revealed that the accused was having illicit relations with mukhtiar kaur and we can assume that some thing untoward had happened which could have triggered the volatile and hostile incident. there could perhaps be some truth in this suggestion as it is significant that though the appellant had an extended family living with him i e mother wife son living in the village and two young daughters who were studying outside and residing in a hostel but were frequent visitors home yet none of them has come forth to depose in his favour. to our mind therefore this is yet another circumstance inculpating the accused. mr goburdhan has also laid much stress on the apparent discordance between the prosecution story and the medical evidence and has argued that had the accused attempted to commit suicide the gun shot must of necessity had to be fired from a very close range on which the wound would have marks of burning or charring and that in any event a full blooded shot from a very close range would have torn his face apart. he has in this connection referred us to the statement of dr ripan miglani pw15 and the wound found on the appellant at the time of his medical examination in the department of surgery of the dayanand medical college hospital ludhiana which was about 15 x 8 cm curvilinear wound present on the left half of face extending upto bone. no blackening or foreign body was visible. underlying muscles were exposed and contamination was present. he has thus urged that the absence of any blackening underlined the argument that the shot had been fired from some distance and as such an attempt at suicide was clearly to be ruled out. he has also drawn our attention to the cross examination of the doctor wherein he reiterated that there was no visible blackening and that it was not possible for him to say whether the injury was suicidal or otherwise. the learned state counsel has however relied on the statement of pw16 dr sanjay uppal who was apparently the first doctor to have examined the appellant wherein he clearly testified that the blackened portion around the firearm injury had been removed by him. we are therefore of the opinion that this statement falsifies mr goburdhan 's argument on this aspect. it is also significant that the shot had apparently travelled upwards skirting the mandible through the flesh of the cheek in an upward direction with minimal damage to the bone structure and it is indeed providential that the appellant got away with only an injury albeit a very serious one. the fact that the shot was fired from below going upwards is also supported by the site plan exh. pjj wherein marks of a shot hitting the roof were seen at point e whereas the appellant was found lying at point d in the same room. it is therefore apparent that the weapon had indeed been fired by the appellant from a close range and that the blackened portion around the wound had been removed by dr sanjay uppal. the learned state counsel has emphasized that in the light of the admitted position that the accused and the deceased were the only ones present at the time of incident and that the accused had projected a counter story some credible explanation was also expected from him. reference has been made to raj kumar prasad tamarkar 's case2007 indlaw sc 5 supra wherein in circumstances surprisingly akin to the present matter this court had the following observations to make the conspectus of the events which had been noticed by the learned sessions judge as also by the high court categorically go to show that at the time when the occurrence took place the deceased and the respondent only were in the bedroom and the terrace connecting the same. there was no other person. the cause of death of the deceased usha devi i e by a gun shot injury is not disputed. the fact that the terrace and the bedroom are adjoining each other is not in dispute. the autopsy report shows that a blackening and charring existed so far as injury no i is concerned. the blackening and charring keeping in view the nature of the firearm which is said to have been used clearly go to show that a shot was fired from a short distance. blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. it therefore can not be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. the place of injury is also important. the lacerated wound was found over grabella middle of forehead. it goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. there was thus a remote possibility of causation of such type of injury by any other person who was not in the terrace. once the prosecution has been able to show that at the relevant time the room and terrace were in exclusive occupation of the couple the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. the onus was on him. he failed to discharge the same. we have considered the submission of the state counsel very carefully. it is true that it is generally for the prosecution to prove its case beyond doubt but in circumstances such as the present one some explanation is also due from an accused in order to absolve himself from suspicion of the crime. in his statement section p c his positive stand was that he alone had been in the house with mukhtiar kaur when she had been killed and indeed as per exhibit p jj mukhtiar kaur 's body had been found only one karam 5 feet away from the place where the appellant lay injured. it must be emphasized that but for this self serving statement made by the appellant there is nothing on record to support his positive stance. even otherwise we are of the opinion that had the shot been fired by some intruder the direction would have been more or less horizontal and parallel to the ground and not from down upwards with the pellets hitting the jaw skirting the cheek and hitting the roof at point. e in modi 's medical jurisprudence and toxicology 23rd edition at page 765 while dealing with identification of homicidal and suicidal injuries it has been observed that a suicidal firearm wound is usually a contact wound situated on the side of the temple depending on which hand was used to shoot himself in the centre of the forehead the roof of the mouth in the chest or epigastrium in front or the left side and some times under the chin. the firearm is usually fired at close range. a small weapon like a revolver or a pistol is held in the hand while a rifle or a shot gun is supported on the ground or against the wall. sometimes the firing is done by pulling a string tied to the trigger by the big toe. the skin around the entry wound shows characteristic blackening scorching and tattooing. in such cases the hand used to steady the weapon at the muzzle may be blackened and scorched and may also be stained with squirting of the blood from the injured arteries. in homicidal and accidental shooting the wound may be on any part of the body and the path of the bullet may be in any direction. homicidal shooting by dacoits is not uncommon in india and they are known to make their own firearms. immediate death following a firearm wound is uncommon and even when vital organs are injured a person may be capable of doing extraordinary things. sometimes firearm wounds may look like knife slashes or a bullet hole may resemble a penetrating stab wound if the bullet strikes the head of shoulder at an angle or when an unstable bullet registers a broadside hit. a fateh describes a rare homicidal gun shot wound of the mouth where the entry wound was in the tongue and the direction was horizontally backward while in suicidal wounds the direction is upwards entrance would be in the palate or posterior pharynx. dr b r sharma in his book forensic science in criminal investigation and trials fourth edition at page 1160 too has delineated the circumstances that could indicate suicide and while referring to the site of the injury has observed certain sites are predominantly used by suicides for self inflicted injuries. for example with firearm temple forehead mouth and chest are the favourite sites. with knife throat and wrist are the favourite sites. hesitation injuries are also observed in some suicide cases. it is therefore clear to us that the story of unknown assailants entering the house and causing mukhtiar kaur 's murder etcetera has to be ruled out and that the prosecution story that it was the appellant who had first shot mukhtiar kaur and then attempted to commit suicide stands proved. we also find that no part of the evidence of the hostile witnesses comes to the aid of the appellant. the question now arises as to the sentence that should be imposed on the appellant. it would be seen that both the sessions court and the high court were appalled by the allegations and findings of incestuous rape and murder. we are however of the opinion as already noted above that a case of rape has not been made out. in this background the death sentence is not called for. we accordingly acquit the appellant of the charge section 376 of the ipc but maintain his conviction for the other offences but commute his death sentence to life. with this modification the appeal is dismissed. appeal dismissed.

FACTS ujjagar singh, the appellant herein, was tried and convicted by the additional sessions judge, sangrur for the murder of his niece mukhtiar kaur and was awarded the death penalty. in addition, he was convicted for an offence punishable u/s. 376 of the ipc and sentenced to undergo rigorous imprisonment for 10 years and to a fine of rs.5, 000/- and in default of payment to undergo further r.i. for one year and u/s. 309 of the ipc to a sentence of simple imprisonment for one year. the aforesaid convictions and sentences have been maintained by the high court and the matter is before us in these proceedings by way of special leave. at about 2.00 p.m. on 10th november 2002 a boy whose identity is not forthcoming, informed satnam singh pw2 that an incident of firing had taken place in the house of ujjagar singh . satnam singh conveyed this information to sarpanch jora singh pw1 who was attending a marriage at that time. jora singh accompanied by gurdeep singh pw3 thereupon rushed to ujjagar singh's house and found mukhtiar kaur lying dead with a gun shot injury and the appellant also with a gun shot injury lying unconscious on the ground in the adjoining room. it appears that mukhtiar kaur's relations with her in-laws had got strained and she had left her matrimonial home and come to live with ujjagar singh, her uncle, 7 or 8 months earlier and the suggestion was that mukhtiar kaur had been killed by the appellant with his licensed gun and he had thereafter attempted to commit suicide. ARGUMENT the learned counsel for the accused has raised several arguments in the course of hearing. he has pointed out that there was absolutely no evidence to suggest that mukhtiar kaur had been subjected to rape and in this view of the matter the very basis for the imposition of the death penalty was not made out. he has also pointed out that there were no eye witnesses to the incident and the 4 witnesses i.e. jora singh and others who had reached the place of incident and carried the injured appellant to the hospital had also resiled and as the prosecution story now rested on circumstantial evidence alone, it was imperative for the investigating officer to have taken the finger prints from the weapon and that in any case the recovery of the spent cartridges and the gun were clearly suspicious as the weapon had been sent to the laboratory after an inordinate delay. it has also been submitted that in a case of attempted suicide a firearm must of necessity be used from a very close range and the absence of any blackening, charring or burning around the wound on ujjagar singh clearly ruled out the possibility of such an attempt. it has finally been submitted that the land had been transferred in the name of ujjagar singh's sons in the year 1994 by gurmail kaur, mother of mukhtiar kaur by a collusive decree and there was no evidence to show that mukhtiar kaur had ever displayed any unhappiness or made any complaint to any person or any authority with regard to the decree and as such, the very basis of the prosecution story did not exist. he had laid great emphasis on the fact that no reference to the gun or cartridges had been made in the inquest report and that in any case the weapon and the spent cartridges had been sent to the laboratory belatedly. ISSUE convictions and sentences by the high court should be maintained or not? ANALYSIS from the medical evidence and from the chemical examiner's reports that the vaginal swab and clothes taken from the dead body did indicate the presence of semen. there is however absolutely no evidence to suggest (even assuming that the intercourse had been committed by the appellant) that he had done so without mukhtiar kaur's consent or against her will. it is also significant that the investigators had made no attempt whatsoever to have the appellant medically examined to ascertain his capacity to perform sexual intercourse. it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. it is in this background that we must examine the circumstances in the present case. a few facts stand out from the prosecution story. first, the place of incident being adjoining rooms in the residential house of the appellant and the fact that the alleged murder weapon is his licensed dbbl gun is proved on record. the evidence also reveals that the appellant was living in the premises along with his wife, mother and son, and two daughters, who were studying outside the village, were frequent visitors, but it is the admitted position that nobody but the appellant and the deceased were present at the time of incident. it is also clear from the evidence that the two spent cartridge cases recovered, one from near mukhtiar kaur's dead body, and the second from the right barrel of the gun lying near the appellant had been sent to the forensic science laboratory which opined that one of the cartridges had been fired from the gun and the other could have been fired therefrom. it is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the clichi. the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. there is however a hint in the testimony of pw14 inspector harjinder pal singh that his enquiries had revealed that the accused was having illicit relations with mukhtiar kaur and we can assume that some thing untoward had happened which could have triggered the volatile and hostile incident. there could perhaps be some truth in this suggestion, as it is significant that though the appellant had an extended family living with him i.e. mother, wife, son living (in the village) and two young daughters who were studying outside and residing in a hostel, but were frequent visitors home, yet none of them has come forth to depose in his favour. therefore, this is yet another circumstance inculpating the accused. it is also significant that the shot had apparently travelled upwards skirting the mandible, through the flesh of the cheek in an upward direction with minimal damage to the bone structure and it is indeed providential that the appellant got away with only an injury, albeit a very serious one. the fact that the shot was fired from below going upwards is also supported by the site plan exh. pjj wherein marks of a shot hitting the roof were seen at point e whereas the appellant was found lying at point d in the same room. it is therefore apparent that the weapon had indeed been fired by the appellant from a close range and that the blackened portion around the wound had been removed by dr. sanjay uppal. it is true that it is generally for the prosecution to prove its case beyond doubt but in circumstances such as the present one, some explanation is also due from an accused in order to absolve himself from suspicion of the crime. no part of the evidence of the hostile witnesses comes to the aid of the appellant. the question now arises as to the sentence that should be imposed on the appellant. it would be seen that both the sessions court and the high court were appalled by the allegations and findings of incestuous rape and murder. we are however of the opinion, as already noted above, that a case of rape has not been made out. in this background the death sentence is not called for. STATUTE section 376, 309 of ipc

FACTS ujjagar singh, the appellant herein, was tried and convicted by the additional sessions judge, sangrur for the murder of his niece mukhtiar kaur and was awarded the death penalty. in addition, he was convicted for an offence punishable u/s. 376 of the ipc and sentenced to undergo rigorous imprisonment for 10 years and to a fine of rs.5, 000/- and in default of payment to undergo further r.i. for one year and u/s. 309 of the ipc to a sentence of simple imprisonment for one year. the aforesaid convictions and sentences have been maintained by the high court and the matter is before us in these proceedings by way of special leave. at about 2.00 p.m., on 10th november 2002 a boy whose identity is not forthcoming, informed satnam singh that an incident of firing had taken place in the house of ujjagar singh . satnam singh conveyed this information to sarpanch jora singh pw1 who was attending a marriage at that time. jora singh accompanied by gurdeep singh pw3 thereupon rushed to ujjagar singh's house and found mukhtiar kaur lying dead with a gun shot injury and the appellant also with a gun shot injury lying unconscious on the ground in the adjoining room. it appears that mukhtiar kaur's relations with her in-laws had got strained and she had left her matrimonial home and come to live with ujjagar singh, her uncle, 7 or 8 months earlier and the suggestion was that mukhtiar kaur had been killed by the appellant with his licensed gun and he had thereafter attempted to commit suicide. after completion of the investigation at the spot, mukhtiar kaur's dead body was sent for its post-mortem examination. it was found that mukhtiar kaur had two gunshot injuries on her dead body, a wound of entry on the back of right side of chest 2 cm x 1 cm with margining and blackening and a corresponding exit wound of 5 cm x 3.5 cm to the front of the right side of the chest. semen was found on the swab taken from the vagina and from the underwear that mukhtiar kaur had been wearing at the time of her death. the weapon and the recovered cartridge cases had also been sent to the forensic science laboratory which in its report opined that the crime cartridge case ci 'could' have been fired by the right barrel of the weapon whereas the crime cartridge case c2 'had been' fired from the right barrel. the statement of the accused was recorded u/s. 313 of the cr.p.c. ARGUMENT there was absolutely no evidence to suggest that mukhtiar kaur had been subjected to rape. there were no eye witnesses to the incident and the 4 witnesses i.e. jora singh and others who had reached the place of incident and carried the injured appellant to the hospital had also resiled and as the prosecution story now rested on circumstantial evidence alone, it was imperative for the investigating officer to have taken the finger prints from the weapon and that in any case the recovery of the spent cartridges and the gun were clearly suspicious as the weapon had been sent to the laboratory after an inordinate delay. in a case of attempted suicide a firearm must of necessity be used from a very close range and the absence of any blackening, charring or burning around the wound on ujjagar singh clearly ruled out the possibility of such an attempt. the land had been transferred in the name of ujjagar singh's sons in the year 1994 by gurmail kaur, mother of mukhtiar kaur by a collusive decree and there was no evidence to show that mukhtiar kaur had ever displayed any unhappiness or made any complaint to any person or any authority with regard to the decree and as such, the very basis of the prosecution story did not exist. no reference to the gun or cartridges had been made in the inquest report and that in any case the weapon and the spent cartridges had been sent to the laboratory belatedly. ISSUE convictions and sentences by the high court should be maintained or not? ANALYSIS from the medical evidence and from the chemical examiner's reports that the vaginal swab and clothes taken from the dead body did indicate the presence of semen. there is however absolutely no evidence to suggest (even assuming that the intercourse had been committed by the appellant) that he had done so without mukhtiar kaur's consent or against her will. the investigators had made no attempt whatsoever to have the appellant medically examined to ascertain his capacity to perform sexual intercourse. whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. a few facts stand out from the prosecution story. first, the place of incident being adjoining rooms in the residential house of the appellant and the fact that the alleged murder weapon is his licensed dbbl gun is proved on record. the evidence also reveals that the appellant was living in the premises along with his wife, mother and son, and two daughters, who were studying outside the village, were frequent visitors, but it is the admitted position that nobody but the appellant and the deceased were present at the time of incident. it is also clear from the evidence that the two spent cartridge cases recovered, one from near mukhtiar kaur's dead body, and the second from the right barrel of the gun lying near the appellant had been sent to the forensic science laboratory which opined that one of the cartridges had been fired from the gun and the other could have been fired therefrom. in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the clichi. the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. there is however a hint in the testimony of inspector harjinder pal singh that his enquiries had revealed that the accused was having illicit relations with mukhtiar kaur and the court can assume that something untoward had happened which could have triggered the volatile and hostile incident. there could perhaps be some truth in this suggestion, as it is significant that though the appellant had an extended family living with him i.e. mother, wife, son living (in the village) and two young daughters who were studying outside and residing in a hostel, but were frequent visitors home, yet none of them has come forth to depose in his favour. the shot had apparently travelled upwards skirting the mandible, through the flesh of the cheek in an upward direction with minimal damage to the bone structure and it is indeed providential that the appellant got away with only an injury, albeit a very serious one. the fact that the shot was fired from below going upwards is also supported by the site plan exhibit pjj wherein marks of a shot hitting the roof were seen at point e whereas the appellant was found lying at point d in the same room. it is therefore apparent that the weapon had indeed been fired by the appellant from a close range and that the blackened portion around the wound had been removed. it is generally for the prosecution to prove its case beyond doubt but in circumstances such as the present one, some explanation is also due from an accused in order to absolve himself from suspicion of the crime. no part of the evidence of the hostile witnesses comes to the aid of the appellant. the question now arises as to the sentence that should be imposed on the appellant. it would be seen that both the sessions court and the high court were appalled by the allegations and findings of incestuous rape and murder. the court is however of the opinion, as already noted above, that a case of rape has not been made out. in this background the death sentence is not called for. STATUTE section 376, 309 of ipc

for the sake of convenience we refer to the facts mentioned in civil appeal no of 2008 arising out of s l p c no 15729 of 2008 filed by j mitra co pvt ltd. this matter is a classic illustration of the confusion which has emerged on account of the postponement of in part commencement of patents amendment act2005. quite often the commencement of an act is postponed to some specified future date or to such date as the appropriate government may by notification in the official gazette appoint. provision is also at times made for appointment of different dates for coming into force of different parts of the same act. this is what has exactly happened in this case resulting into utter confusion with regard to pending fao no 29306 filed by respondent no 3 in the high court u s 116 of the indian patents. act1970 as amended by the patents amendment act1999 w e f 26 3 99. span diagnostics limited respondent no 3 herein is a public limited company established in 1972 to indigenously develop and manufacture a comprehensive range of ready made diagnostic reagents made by clinical pathology laboratories. on 14 6 2000 j mitra company pvt ltd. 3 appellant herein filed its application for grant of patent. after scrutiny the said application stood notified by the patent office on 20 11 2004. thus proceedings commenced before the controller of patents in the year 2000 when the appellant herein sought a patent of their device which was opposed by respondent no 3 in the year 2000 by then the patents amendment act1999 had amended the patents act1970 w e f 26 3 99 s 25 of the patents act1970 as amended by patents amendment act1999 dealt with opposition to a patent vides s 25 at that time appeals against decisions made by the controller pertaining to pre grant oppositions under s 25 were maintainable before the high court u s 1162 of the indian patents act1970. we quote herein below ss 25 and 116 as it stood in the year 2000 under the patents amendment act1999 which read as under s 25 opposition to grant of patent. 1 at any time within four months from the date of advertisement of the acceptance of a complete specification under this act or within such further period not exceeding one month in the aggregate as the controller may allow on application made to him in the prescribed manner before the expiry of the four months aforesaid any person interested may give notice to the controller of opposition to the grant of the patent on any of the following grounds namely a that the applicant for the patent or the person under or through whom he claims wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims b that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim i in any specification filed in pursuance of an application for a patent made in india on or after the 1st day of january1912 or ii in india or elsewhere in any other document provided that the ground specified in sub cl ii shall not be available where such publication does not constitute an anticipation of the invention by virtue of sub s 2 or sub s 3 of section 29 that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant 's claim and filed in pursuance of an application for a patent in india being a claim of which the priority date is earlier than that of the applicant 's claim a that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in india before the priority date of that claim. explanation for the purposes of this clause an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in india before the priority date of the claim if a product made by that process had already been imported into india before that date except where such importation has been for the purpose of reasonable trial or experiment only b that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step having regard to the matter published as mentioned in cl b or having regard to what was used in india before the priority date of the applicant 's claim c that the subject of any claim of the complete specification is not an invention within the meaning of this act or is not patentable under this act d that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed e that the applicant has failed to disclose to the controller the information required by s 8 or has furnished the information which in any material particular was false to his knowledge f that in the case of a convention application the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title. but on no other ground. 2 where any such notice of opposition is duly given the controller shall notify the applicant and shall give to the applicant and the opponent an opportunity to be heard before deciding the case. the grant of a patent shall not be refused on the ground stated in cl c of sub s 1 if no patent has been granted in pursuance of the application mentioned in that clause and for the purpose of any inquiry u cl d or cl e of that sub section no account shall be taken of any secret use. s 116 appeals. no appeal shall lie from any decision order or correction made of issued under this act by the central government or from any act or order of the controller for the purpose of giving effect to any such decision order or direction. 2 save as otherwise expressly provided in sub section 1an appeal shall lie to a high court from any decision order or direction of the controller under any of the following provisions that is to say section 15section 16section17section 18section. 19section. 20section 25section. 27section 28section. 51section 54section 57section. 60section 61section 63sub s 3 of section 69section 78section 84section 86s 883section 89section 93s 96 and s 97. every appeal under this section shall be in writing and shall be made within three months from the date of the decision order or direction as the case may be of the controller or within such further time as the high court may in accordance with the rules made by it u s 158 allow. emphasis supplied by us. suffice it to note that under patents amendment act1999 there was only one right given to a person interested to oppose the grant of patent by filing objections at the pre grant stage. under the said amendment act1999as stated above vide. s 116 2. a right of appeal was available to the aggrieved party against orders passed under s 25 the said appellate remedy was available by way of an appeal to the high court. in 2002the legislature desired an amendment to the law and intended to create an appellate forum to hear appeals against orders passed by the controller consequently patents amendment. act2002 was promulgated on 25 6 2002 however it was not brought into force immediately. it may be noted that in the said amendment act2002no provision was made pertaining to post grant opposition. that provision came to be made only under the patents amendment act2005 which was promulgated on 4 4 2005 w e f 1 1 2005. vide s 47 of the patents amendment act2002 entire chapter xix stood substituted. ss 116 and 117a were reworded which read as under s 116 1 subject to the provisions of this act the appellate board established u s 83 of the trade marks act1999 shall be the appellate board for the purposes of this act and the said appellate board shall exercise the jurisdiction power and authority conferred on it by or under this act. provided that the technical member of the appellate board for the purposes of this act shall have the qualifications specified in sub s 2. 2 a person shall not be qualified for appointment as a technical member for the purposes of this act unless he. a has at least five years hold the post of controller under this act or has exercised the functions of the controller under this act for at least five years or. b has for at least ten years functioned as a registered patent agent and possesses a degree in engineering or technology or a masters degree in science from any university established under law for the time being in force or equivalent or c has for at least ten years been an advocate of a proven specialized experience in practicing law relating to patents and designs. section 117a 1. save as otherwise expressly provided in sub section 2no appeal shall lie from any decision order or direction made or issued under this act by the central government or from any act or order of the controller for the purpose of giving effect to any such decision order or direction. an appeal shall lie to the appellate board from any decision order or direction of the controller or central government under section 15section. 16section 17section. 18section. 51section 54section 57section 60section 61section 63section. 66sub s 3 of section 69section. 78sub ss 1 to 5 of section 84section 85section 88section 91s 92 and s 94. every appeal under this section shall be in prescribed form and shall be verified in such manner as may be prescribed and shall be accompanied by a copy of the decision order or direction appealed against any by such fees as may be prescribed. every appeal shall be made within three months from the date of the decision order or direction as the case may be of the controller or the central government or within such further time as the appellate board may in accordance with the rules made by it allow. the provisions of the said amendment act2002however were not simultaneously brought into force. suffice it to note that ss 116 and 117a were not brought into force. however s 25 was brought into force vide notification dated 20 5 2003 even as on 20 5 2003 vide s 25 only one right to oppose a patent at the pre grant stage was available and appeal against an order passed by the earlier lay before the high court under the then existing s 116 of the patents. act1970 for the reason that the amended ss 116 and 117a were not brought into force. without giving effect to the amendments to ss 116 and 117a suggested by s 47 of the patents amendment. act2002on 4 4 2005. the legislature enacted the patents amendment act2005 even here not all provisions were simultaneously brought into force. only certain sections of the patents amendment act2005 were brought into force. vide s 23 of the patents amendment. act2005the then existing s 25 was substituted. the substituted s 25 reads as under 25 opposition to the patent 1. where an application for a patent has been published but a patent has not been granted any person may in writing represent by way of opposition to the controller against the grant of patent on the ground a that the applicant for the patent or the person under or through whom he claims wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims b that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim i in any specification filed in pursuance of an application for a patent made in india on or after the 1st day of january1912 or ii in india or elsewhere in any other document c that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant 's claim and filed in pursuance of an application for a patent in india being a claim of which the priority date is earlier than that of the applicant 's claim. d that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in india before the priority date of that claim. explanation. for the purposes of this clause an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in india before the priority date of the claim if a product made by that process had already been imported into india before that date except where such importation has been for the purpose of reasonable trial or experiment only e that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step having regard to the matter published as mentioned in cl b or having regard to what was used in india before the priority date of the applicant 's claim f that the subject of any claim of the complete specification is not an invention within the meaning of this act or is not patentable under this act g that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed h that the applicant has failed to disclose to the controller the information required by s 8 or has furnished the information which in any material particular was false to his knowledge i that in the case of convention application the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title j that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention k that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge oral or otherwise available within any local or indigenous community in india or elsewhere but on no other ground and the controller shall if requested by such person for being heard hear him and dispose of such representation in such manner and within such period as may be prescribed. at any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of a patent any person interested may give notice of opposition to the controller in the prescribed manner on any of the following grounds namely a that the patentee or the person under or through whom he claims wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims b that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim c that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the claim of the patentee and filed in pursuance of an application for a patent in india being a claim of which the priority date is earlier than that of the claim of the patentee explanation for the purposes of this clause an invention relating to a process for which a patent is granted shall be deemed to have been publicly known or publicly used in india before the priority date of the claim if a product made by that process had already been imported into india before that date except where such importation has been for the purpose of reasonable trial or experiment only. e that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step having regard to the matter published as mentioned in cl b or having regard to what was used in india before the priority date of the claim h that the patentee has failed to disclose to the controller the information required by s 8 or has furnished the information which in any material particular was false to his knowledge i that in the case of a patent granted on convention application the application for patent was not made within twelve months from the date of the first application for protection for the invention made in a convention country or in india by the patentee or a person from whom he derives title j that the complete specification does not disclose or wrongly mentions the source and geographical origin of biological material used for the invention k that the invention so far as claimed in any claim of the complete specification was anticipated. having regard to the knowledge oral or otherwise available within any local or indigenous community in india or elsewhere but on no other ground. 3 a where any such notice of opposition is duly given under sub section 2the controller shall notify the patentee. b on receipt of such notice of opposition the controller shall by order in writing constitute a board to be known as the opposition board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that board for examination and submission of its recommendations to the controller. c every opposition board constituted under cl b shall conduct the examination in accordance with such procedure as may be prescribed. on receipt of the recommendation of the opposition board and after giving the patentee and the opponent an opportunity of being heard the controller shall order either to maintain or to amend or to revoke the patent. 5 while passing an order under sub s 4 in respect of the ground mentioned in cl d or cl e of sub section. 2the controller shall not take into account any personal document or secret trial or secret use. in case the controller issues an order under sub s 4 that the patent shall be maintained subject to amendment of the specification or any other document the patent shall stand amended accordingly. we also quote s 61 of the patents amendment act2005 which reads as under s 61 in section 117a of the principal act as inserted by s 47 of the patents amendment act2002in. sub section 2for the words and figures section 20section 25section 27section 28the words figures and brackets section 20sub s 4 of section 25section 28 shall be substituted. this section was not brought into force till 2 4 2007. in short by the patents amendment act2005for the first time a dichotomy was introduced in the patent law between opposition to the pre grant and opposition to the post grant of patent. this was the major structural change in the patent law. similarly under the patents amendment act2005appeal was restricted to the post grant opposition orders and that appeal lay before the appellate board and not to the high court. here also s 25 of the patents act1970 as amended by patents amendment act2005. which refers to pre grant opposition and post grant opposition was brought into force on and from 1 1 2005 whereas amended section 117a by which appeal was provided for against post grant opposition order was not brought into force till 2 4 2007 one more aspect needs to be mentioned. as stated vide patents amendment. act2005a dichotomy was brought in between pre grant and post grant opposition orders. w e f 1 1 2005 but when it came to filing of first appeal for some unknown reasons the amended section 117a which provided for only one statutory appeal and that too against post grant orders passed by the controller was not brought into force. the result is that although the legislature intended to provide for only one statutory appeal to the appellate board by reason of s 61 of the patents amendment act2005 not being brought into force till 2 4 07 a strange situation developed. the legislature intended to provide for only one statutory appeal to the appellate board but by not bringing s 61 into force till 2 4 07appeals filed during the interregnum as in this case became vulnerable and liable to be dismissed as misconceived as is contended by the appellant. this is the controversy which needs to be resolved in this case. on 19 10 2006 when fao no 29306 was filed in the high court chapter xix of the parent act as amended vide patents amendment. act1999 continued to be in operation notwithstanding the enactment of the patents. amendment act2002 and the patents amendment. act2005 as the amended ss 116 and 117a were brought into force only vide notification dated 2 4 07 one more point needs to be noted. section 117 g of the principal act was substituted vide patents amendment act2005 it reads as under section 117g transfer of pending proceedings to appellate board all cases of appeals against any order or decision of the controller and all cases pertaining to revocation of patent other than on a counter claim in a suit for infringement and rectification of register pending before any high court shall be transferred to the appellate board from such date as may be notified by the central government in the official gazette and the appellate board may proceed with the matter either de novo or from the stage it was so transferred. on reading amended section 117 g it becomes clear that all appeals against any order or decision of the controller had to be transferred to the appellate board from such date as may be notified by the central government in the official gazette. this amended section 117 g was also brought into force vide notification dated 3 4 2007 under notes on clauses attached to the statement of objects and reasons it has been clarified vide cl 62. that amended s 117 g is consequential to the enforcement of the jurisdiction of the appellate board u s 64 which results to revocation of patent. vide cl 47 of notes on clauses attached to the statement of objects and reasons it has been clarified that s 64 is also amended vide patents amendment act2005 to confer wider jurisdiction on the appellate board in matters of revocation of patent therefore amended section 117 g which is brought into force only from 3 4 2007 dealt with transfer of pending proceedings from the high court to the appellate board. the question which arises for determination in this batch of civil appeals is whether fao no 29206 and fao no 29306 filed by respondent no 3 herein in the high court were liable to be dismissed. according to the appellant with the change in s 25 brought about by patents amendment act2005a dichotomy was introduced in the patents act1970 according to the appellant that dichotomy was between pre grant opposition and post grant opposition. according to the appellant this was a structural change in the principal act. according to the appellant on 23 8 06 the controller rejected its pre grant opposition and on that day post grant opposition avenue was open to respondent no 3 vide s 252 according to the appellant under the amended s 25 on rejection of pre grant opposition it was open to respondent. no 3 to move an application opposing grant of patent under s 252 the patent was granted to the appellant on 22 9 06 according to the appellant it was open to respondent no 3 to challenge the grant of patent by making post grant opposition under s 252 from which an appeal was maintainable to the appellate board. this was not done. further according to the appellantpre grant opposition was filed by respondent no 3 under s 251 on 21 3 05 according to the appellant though the patents amendment act2005amended s 25 by enacting the amendment on 4 4 05 the said amendment was brought into force w e f 1 1 2005 and therefore it was open to respondent no 3 to challenge the grant of patent by invoking s 252 of the patents act1970 according to the appellant with the change in the structure of the act providing for only one statutory appeal and that too only against the order granting patent under s 254the appeal filed by respondent no 3 against pre grant opposition order was not maintainable on 19 10 06 by which time as stated above s 25 stood restructured providing for a dichotomy between pre grant opposition and post grant opposition. on the other hand on behalf of respondent no 3it has been urged that on 19 10 06 it had filed an appeal in the high court under unamended s 116 of the parent act that even though s 25 stood restructured w e f 1 1 05 on account of absence of notification bringing the amended law into force ss 116 and 117a as amended providing appeal to the appellate board came into force only with effect from 2 4 07 and therefore according to the said respondent its first appeal being fao no 29306 continued to be governed by the law as it stood on 19 10 06 on which date appeal to the high court was maintainable that on 23 8 06 the pre grant oppositionfiled by respondent no 3stood rejected. however on that date appeal against pre grant opposition order was maintainable under section 116to the high court and therefore there is no merit in the argument advanced on behalf of the appellant that the first appeal filed by respondent no 3 was misconceived that it is true that s 25 got restructured w e f 1 1 2005however such restructuring did not obliterate the first appeal filed by respondent no 3 on 19 10 2006. and lastly it was argued on behalf respondent no 3 that the appellant had filed its application for grant of patent on 14 6 2000it was notified on 20 11 04however respondent no 3 had filed its pre grant opposition under s 251 on 21 3 05 when the patents amendment act2005 was not promulgated it was promulgated on 4 4 05 and therefore according to respondent no 3 its pre grant opposition filed on 21 3 05 was valid and proper as respondent no 3 could not have invoked s 252 proceedings on that day namely21 3 05 as the law stood enacted bringing in s 252 only on 4 4 05 in the peculiar circumstances of this case it was urged on behalf of respondent no 3 that no interference is called for by this court in this batch of civil appeals. as stated above quite often the commencement of an act is postponed to some specific future date or to such date as the appropriate government may by notification in the official gazette appoint. at times provision is made for appointment of different dates for coming into force of different parts of the same act. an act can not be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation. applying the above tests to the present case we find that by patents amendment act2005 for the first time a dichotomy was inserted in the patent law by providing vide s 251 for opposition to pre grant and vide s 25 2 for opposition to post grant of patent. by reason of patents amendment act2005the kind of opposition available under the said 1970 act is different from what existed earlier. previously there was no post grant opposition. previously the only provision of challenge by an interested party was a pre grant challenge under s 25 1 as it then stood. therefore the courts had evolved the rule of caution as the patent had not faced any challenge at the hands of interested parties. there is however a radical shift due to incorporation of s 252 where an interested party is granted the right to challenge the patent after its grant. the ground of challenge under s 251 is identical to s 252 of the said 1970 act. however s 251 is wider than s 252 as the latter is available only to a person aggrieved. the main difference between s 251 and s 252as brought about by patents amendment. act2005is that even after a patent is grantedpost grant opposition can be filed under s 25 2 for a period of one year. the reason is obvious. in relation to patents that are of recent origin a higher scrutiny is necessary. this is the main rationale underlying s 252 of the said 1970 act. therefore the legislature intended an appeal under section 117a2 to the appellate board from any decision order or direction of the controller inter alia under s 254 which refers to the power of the controller to maintain amend or revoke the patent. in the present case the legislature intended to provide for two types of scrutiny followed by one statutory appeal to the appellate board against post grant proceedings. the legislature intended to have a dichotomy between pre grant opposition and post grant opposition. however the legislature intended that there shall be only one statutory appeal against grant of patent. the legislature intended to obliterate appeal from pre grant proceedingswhich existed earlier. however it was left to the executive to bring the enacted law into force vide notification. for some unknown reasons the amended ss 116 and 117a2 were not brought into force till 2 4 07 whereas the concept of pre grant and post grant oppositions were brought into force w e f 1 1 2005 this is where the legislative intent got defeated during the interregnum. it is during this interregnum that respondent no 3 filed its fao no 29306 in the high court under section 116as. it stood on 19 10 06 under the patents amendment act1999 on that date the amended section 117a suggested by patents amendment act2005was not brought into force. on 19 10 06 the old law prevailed under which an appeal lay before the high court. respondent no 3in both the cases preferred first appeals to the high court u s 116 as it then stood. they are fao no 29206 and fao. no 29306 we have to decide the fate of these pending appeals. one more aspect needs to be mentioned. under the patents amendment act2005appeal is provided to the appellate board against the order of the controller under s 254 however that statutory appeal is maintainable only in post grant opposition proceedings whereas respondent no 3 herein has instituted first appeals under the law then prevailing challenging the order rejecting pre grant opposition dated 23 8 06. taking into account the complexities involved in this case on account of a hiatus created by reason of the law not being brought into force in time we are of the view that the first appeals filed by respondent no 3 in the high court being fao. no 29206 and fao. no 29306would remain in the high court. the said appeals would be heard and disposed of by the high court in accordance with law u s 116 of the said 1970 act as it stood on 19 10 06 the high court will hear and decide the validity of the order passed by the controller dated 23 8 06 rejecting pre grant opposition filed by respondent. no 3 we are informed that there are hardly one or two matters of this nature which are pending. therefore we are of the view that respondent. no 3 can not be let without remedy. in the special circumstances of this case particularly when after 2 4 07 appeals against orders rejecting pre grant opposition are not maintainable and particularly when fao no 29206 and fao no 29306 were filed by respondent no 3 prior to 2 4 07 under the old law we are of the view that these two appeals shall be heard and decided by the high court in accordance with law. the appellate board after 2 4 07 is entitled to hear appeals only arising from orders passed by the controller under s 254i e. in cases of orders passed in post grant opposition. therefore there is no point in transferring the pending fao no 29206 and fao no 29306 to the appellate board which has no authority to decide matters concerning pre grant opposition. moreover it may be noted that even section 117g which refers to transfer of pending proceedings to the appellate board is also brought into force vide notification dated 3 4 07 keeping in mind the peculiar nature of the problem in hand we are of the view that ends of justice. would be sub served if the high court is directed to hear and decide the appeals bearing fao no 29206 and fao no 29306 in accordance with law as it then stood i e. u s 116 under patents. amendment act1999 against orders passed by the controller in pre grant opposition proceedings. accordingly the two civil appeals filed by the appellant herein stand disposed of with no order as to costs. appeal disposed of.

FACTS span diagnostics limited,respondent no.3 herein,is a public limited company established in 1972 to indigenously develop and manufacture a comprehensive range of readymade diagnostic reagents made by clinical pathology laboratories. on 14.6.2000 j.mitra &amp company pvt.ltd, appellant herein,filed its application for grant of patent.after scrutiny,the said application stood notified by the patent office on 20.11.2004. thus,proceedings commenced before the controller of patents in the year 2000 when the appellant herein sought a patent of their device which was opposed by respondent no.3 in the year 2000.by then,the patents (amendment) act,1999 had amended the patents act,1970 dealt with opposition to a patent vides s.25. at that time appeals against decisions made by the controller pertaining to "pre-grant oppositions" under s.25 were maintainable before the high court u/s.116(2) of the indian patents act,1970. in 2002,the legislature desired an amendment to the law and intended to create an appellate forum to hear appeals against orders passed by the controller consequently patents (amendment) act,2002 was promulgated on 25.6.2002.however,it was not brought into force immediately.it may be noted that in the said amendment act,2002,no provision was made pertaining to "post-grant opposition".that provision came to be made only under the patents (amendment) act,2005. ARGUMENT the controller rejected its "pre-grant opposition" and on that day "post-grant opposition" avenue was open to respondent no.3 vide s.25(2). according to the appellant,under the amended s.25 on rejection of "pre-grant opposition" it was open to respondent no.3 to move an application opposing grant of patent under s.25(2). the patent was granted to the appellant on 22.9.06. according to the appellant,it was open to respondent no.3 to challenge the grant of patent by making "post-grant opposition" under s.25(2) from which an appeal was maintainable to the appellate board. with the change in the structure of the act providing for only one statutory appeal and that too only against the order granting patent under s.25(4),the appeal filed by respondent no.3 against pre-grant opposition order was not maintainable on 19.10.06 by which time,as stated above,s.25 stood restructured providing for a dichotomy between "pre-grant opposition" and "post-grant opposition". ISSUE the question which arises for determination in this batch of civil appeals is : whether fao no.292/06 and fao no.293/06 filed by respondent no.3 herein in the high court were liable to be dismissed. according to the appellant,with the change in s.25 brought about by patents (amendment) act,2005,a dichotomy was introduced in the patents act,1970.according to the appellant,that dichotomy was between "pre-grant opposition" and "post-grant opposition". ANALYSIS patents (amendment) act,2005,for the first time a dichotomy was introduced in the patent law between "opposition to the pre-grant" and "opposition to the post-grant of patent. this was the major structural change in the patent law. similarly,under the patents (amendment) act,2005,appeal was restricted to the post-grant opposition orders and that appeal lay before the appellate board and not to the high court.here also,s.25 of the patents act,1970 as amended by patents (amendment) act,2005 whereas amended section 117a by which appeal was provided for against post-grant opposition order was not brought into force 2007. on 19.10.2006 when fao no.293/06 was filed in the high court,chapter xix of the parent act as amended vide patents (amendment) act,1999 continued to be in operation notwithstanding the enactment of the patents (amendment) act,2002 and the patents (amendment) act,2005 as the amended ss.116 and 117a were brought into force only vide notification dated 2.4.07. quite often the commencement of an act is postponed to some specific future date or to such date as the appropriate government may,by notification in the official gazette,appoint. an act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation. s.25(1) is wider than s.25(2) as the latter is available only to a "person aggrieved". the main difference between s.25(1) and s.25(2),as brought about by patents (amendment) act,2005,is that even after a patent is granted,"post-grant opposition" can be filed under s.25 (2) for a period of one year. the reason is obvious. in relation to patents that are of recent origin,a higher scrutiny is necessary. this is the main rationale underlying s.25(2) of the said 1970 act. therefore,the legislature intended an appeal under section 117a(2) to the appellate board from any decision,order or direction of the controller,inter alia,under s.25(4). the legislature intended to provide for two types of scrutiny followed by one statutory appeal to the appellate board against "post-grant proceedings". the legislature intended to have a dichotomy between "pre-grant opposition" and "post-grant opposition". however,the legislature intended that there shall be only one statutory appeal against grant of patent. it was left to the executive to bring the enacted law into force vide notification. for some unknown reasons,the amended ss.116 and 117a(2) were not brought into force till 2.4.07 whereas the concept of "pre-grant" and "post-grant" oppositions were brought into force w.e.f.1.1.2005. this is where the legislative intent got defeated during the interregnum. it is during this interregnum that respondent no.3 filed its fao no.293/06 in the high court under section 116,as it stood on 19.10.06 under the patents (amendment) act,1999. on that date,the amended section 117a,suggested by patents (amendment) act,2005,was not brought into force. on 19.10.06 the old law prevailed under which an appeal lay before the high court.respondent no.3,in both the cases,preferred first appeals to the high court u/s.116 as it then stood. they are fao no.292/06 and fao no.293/06. the court to decide the fate of these pending appeals.one more aspect needs to be mentioned. under the patents (amendment) act,2005,appeal is provided to the appellate board against the order of the controller under s.25(4). however,that statutory appeal is maintainable only in "post-grant opposition" proceedings whereas respondent no.3 herein has instituted first appeals under the law then prevailing,challenging the order rejecting "pre-grant opposition". there is no point in transferring the pending fao no.292/06 and fao no.293/06 to the appellate board which has no authority to decide matters concerning "pre-grant opposition". moreover,it may be noted that even section 117g,which refers to transfer of pending proceedings to the appellate board,is also brought into force vide notification dated 3.4.07.keeping in mind the peculiar nature of the problem in hand,the court was of the view that ends of justice would be sub served if the high court is directed to hear and decide the appeals bearing fao no.292/06 and fao no.293/06 in accordance with law as it then stood,i.e.,u/s.116 under patents (amendment) act,1999 against orders passed by the controller in "pre-grant opposition" proceedings. STATUTE s.25 of the patents act, 1970- opposition to grant of patent. s.116 of the patents act, 1970.- (1) subject to the provisions of this act,the appellate board established u/s.83 of the trade marks act,1999 shall be the appellate board for the purposes of this act and the said appellate board shall exercise the jurisdiction,power and authority conferred on it by or under this act: provided that the technical member of the appellate board for the purposes of this act shall have the qualifications specified in sub-s.(2). (2) a person shall not be qualified for appointment as a technical member for the purposes of this act unless he- (a) has,at least five years,hold the post of controller under this act or has exercised the functions of the controller under this act for at least five years; or (b) has,for at least ten years,functioned as a registered patent agent and possesses a degree in engineering or technology or a masters degree in science from any university established under law for the time being in force or equivalent; or (c) has,for at least ten years,been an advocate of a proven specialized experience in practicing law relating to patents and designs. section 117a.(1) save as otherwise expressly provided in sub-section (2),no appeal shall lie from any decision,order or direction made or issued under this act by the central government,or from any act or order of the controller for the purpose of giving effect to any such decision,order or direction. (2) an appeal shall lie to the appellate board from any decision,order or direction of the controller or central government under section 15,section 16,section 17,section 18,section 19,section 20,section 25,section 27,section 28,section 51,section 54,section 57,section 60,section 61,section 63,section 66,sub-s.(3) of section 69,section 78,sub-ss.(1) to (5) of section 84,section 85,section 88,section 91,s.92 and s.94. (3) every appeal under this section shall be in prescribed form and shall be verified in such manner as may be prescribed and shall be accompanied by a copy of the decision,order or direction appealed against any by such fees as may be prescribed. (4) every appeal shall be made within three months from the date of the decision,order or direction,as the case may be,of the controller or the central government or within such further time as the appellate board may,in accordance with the rules made by it,allow. section 61 of the patents act, 1970- in section 117a of the principal act [as inserted by s.47 of the patents (amendment) act,2002,in sub-section (2),for the words and figures "section 20,section 25,section 27,section 28,",the words,figures and brackets "section 20,sub-s.(4) of section 25,section 28" shall be substituted. section 117g of the patents act, 1970 - transfer of pending proceedings to appellate board.-all cases of appeals against any order or decision of the controller and all cases pertaining to revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any high court,shall be transferred to the appellate board from such date as may be notified by the central government in the official gazette and the appellate board may proceed with the matter either de novo or from the stage it was so transferred.

FACTS span diagnostics limited,respondent no.3 herein,is a public limited company established in 1972 to indigenously develop and manufacture a comprehensive range of readymade diagnostic reagents made by clinical pathology laboratories. on 14.6.2000 j.mitra &amp company pvt.ltd, appellant herein,filed its application for grant of patent.after scrutiny,the said application stood notified by the patent office on 20.11.2004. thus,proceedings commenced before the controller of patents in the year 2000 when the appellant herein sought a patent of their device which was opposed by respondent no.3 in the year 2000.by then,the patents (amendment) act,1999 had amended the patents act,1970 dealt with opposition to a patent vides s.25. at that time appeals against decisions made by the controller pertaining to "pre-grant oppositions" under s.25 were maintainable before the high court u/s.116(2) of the indian patents act,1970. in 2002,the legislature desired an amendment to the law and intended to create an appellate forum to hear appeals against orders passed by the controller consequently patents (amendment) act,2002 was promulgated on 25.6.2002.however,it was not brought into force immediately.it may be noted that in the said amendment act,2002,no provision was made pertaining to "post-grant opposition".that provision came to be made only under the patents (amendment) act,2005. ARGUMENT the controller rejected its "pre-grant opposition" and on that day "post-grant opposition" avenue was open to respondent no.3 vide s.25(2). according to the appellant,under the amended s.25 on rejection of "pre-grant opposition" it was open to respondent no.3 to move an application opposing grant of patent under s.25(2). the patent was granted to the appellant on 22.9.06. according to the appellant,it was open to respondent no.3 to challenge the grant of patent by making "post-grant opposition" under s.25(2) from which an appeal was maintainable to the appellate board. with the change in the structure of the act providing for only one statutory appeal and that too only against the order granting patent under s.25(4),the appeal filed by respondent no.3 against pre-grant opposition order was not maintainable on 19.10.06 by which time,as stated above,s.25 stood restructured providing for a dichotomy between "pre-grant opposition" and "post-grant opposition". ISSUE the question which arises for determination in this batch of civil appeals is : whether fao no.292/06 and fao no.293/06 filed by respondent no.3 herein in the high court were liable to be dismissed. according to the appellant,with the change in s.25 brought about by patents (amendment) act,2005,a dichotomy was introduced in the patents act,1970.according to the appellant,that dichotomy was between "pre-grant opposition" and "post-grant opposition". ANALYSIS by the patents (amendment) act,2005,for the first time a dichotomy was introduced in the patent law between "opposition to the pre-grant" and "opposition to the post-grant of patent. this was the major structural change in the patent law. similarly,under the patents (amendment) act,2005,appeal was restricted to the post-grant opposition orders and that appeal lay before the appellate board and not to the high court.here also,s.25 of the patents act,1970 as amended by patents (amendment) act,2005 whereas amended section 117a by which appeal was provided for against post-grant opposition order was not brought into force 2007. on 19.10.2006 when fao no.293/06 was filed in the high court,chapter xix of the parent act as amended vide patents (amendment) act,1999 continued to be in operation notwithstanding the enactment of the patents (amendment) act,2002 and the patents (amendment) act,2005 as the amended ss.116 and 117a were brought into force only vide notification dated 2.4.07. quite often the commencement of an act is postponed to some specific future date or to such date as the appropriate government may,by notification in the official gazette,appoint. at times provision is made for appointment of different dates for coming into force of different parts of the same act. an act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation. s.25(1) is wider than s.25(2) as the latter is available only to a "person aggrieved". the main difference between s.25(1) and s.25(2),as brought about by patents (amendment) act,2005,is that even after a patent is granted,"post-grant opposition" can be filed under s.25 (2) for a period of one year. the reason is obvious. in relation to patents that are of recent origin,a higher scrutiny is necessary. this is the main rationale underlying s.25(2) of the said 1970 act. therefore,the legislature intended an appeal under section 117a(2) to the appellate board from any decision,order or direction of the controller,inter alia,under s.25(4). the legislature intended to provide for two types of scrutiny followed by one statutory appeal to the appellate board against "post-grant proceedings". the legislature intended to have a dichotomy between "pre-grant opposition" and "post-grant opposition". however,the legislature intended that there shall be only one statutory appeal against grant of patent. it was left to the executive to bring the enacted law into force vide notification. for some unknown reasons,the amended ss.116 and 117a(2) were not brought into force till 2.4.07 whereas the concept of "pre-grant" and "post-grant" oppositions were brought into force w.e.f.1.1.2005. this is where the legislative intent got defeated during the interregnum. it is during this interregnum that respondent no.3 filed its fao no.293/06 in the high court under section 116,as it stood on 19.10.06 under the patents (amendment) act,1999. on that date,the amended section 117a,suggested by patents (amendment) act,2005,was not brought into force. on 19.10.06 the old law prevailed under which an appeal lay before the high court.respondent no.3,in both the cases,preferred first appeals to the high court u/s.116 as it then stood. they are fao no.292/06 and fao no.293/06. the court to decide the fate of these pending appeals.one more aspect needs to be mentioned. under the patents (amendment) act,2005,appeal is provided to the appellate board against the order of the controller under s.25(4). however,that statutory appeal is maintainable only in "post-grant opposition" proceedings whereas respondent no.3 herein has instituted first appeals under the law then prevailing,challenging the order rejecting "pre-grant opposition". there is no point in transferring the pending fao no.292/06 and fao no.293/06 to the appellate board which has no authority to decide matters concerning "pre-grant opposition". moreover,it may be noted that even section 117g,which refers to transfer of pending proceedings to the appellate board,is also brought into force vide notification dated 3.4.07.keeping in mind the peculiar nature of the problem in hand,the court was of the view that ends of justice would be sub served if the high court is directed to hear and decide the appeals bearing fao no.292/06 and fao no.293/06 in accordance with law as it then stood,i.e.,u/s.116 under patents (amendment) act,1999 against orders passed by the controller in "pre-grant opposition" proceedings. STATUTE s.25 of the patents act, 1970- opposition to grant of patent. s.116 of the patents act, 1970.- (1) subject to the provisions of this act,the appellate board established u/s.83 of the trade marks act,1999 shall be the appellate board for the purposes of this act and the said appellate board shall exercise the jurisdiction,power and authority conferred on it by or under this act: provided that the technical member of the appellate board for the purposes of this act shall have the qualifications specified in sub-s.(2). (2) a person shall not be qualified for appointment as a technical member for the purposes of this act unless he- (a) has,at least five years,hold the post of controller under this act or has exercised the functions of the controller under this act for at least five years; or (b) has,for at least ten years,functioned as a registered patent agent and possesses a degree in engineering or technology or a masters degree in science from any university established under law for the time being in force or equivalent; or (c) has,for at least ten years,been an advocate of a proven specialized experience in practicing law relating to patents and designs. section 117a.(1) save as otherwise expressly provided in sub-section (2),no appeal shall lie from any decision,order or direction made or issued under this act by the central government,or from any act or order of the controller for the purpose of giving effect to any such decision,order or direction. (2) an appeal shall lie to the appellate board from any decision,order or direction of the controller or central government under section 15,section 16,section 17,section 18,section 19,section 20,section 25,section 27,section 28,section 51,section 54,section 57,section 60,section 61,section 63,section 66,sub-s.(3) of section 69,section 78,sub-ss.(1) to (5) of section 84,section 85,section 88,section 91,s.92 and s.94. (3) every appeal under this section shall be in prescribed form and shall be verified in such manner as may be prescribed and shall be accompanied by a copy of the decision,order or direction appealed against any by such fees as may be prescribed. (4) every appeal shall be made within three months from the date of the decision,order or direction,as the case may be,of the controller or the central government or within such further time as the appellate board may,in accordance with the rules made by it,allow. section 61 of the patents act, 1970- in section 117a of the principal act [as inserted by s.47 of the patents (amendment) act,2002,in sub-section (2),for the words and figures "section 20,section 25,section 27,section 28,",the words,figures and brackets "section 20,sub-s.(4) of section 25,section 28" shall be substituted. section 117g of the patents act, 1970 - transfer of pending proceedings to appellate board.-all cases of appeals against any order or decision of the controller and all cases pertaining to revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any high court,shall be transferred to the appellate board from such date as may be notified by the central government in the official gazette and the appellate board may proceed with the matter either de novo or from the stage it was so transferred.

leave granted. challenge in this appeal is to the judgment of a division bench of the madhya pradesh high court dismissing the writ appeal filed by the appellant on the ground that it was not maintainable. the appeal was filed u s 21 of the m p uchacha nyayalay khand nyaypeth ko appeal adhiniyam2005. hereinafter referred to as the act it was held that the order was passed in exercise of power of superintendence u art 227 of the constitution of india1950 in short the constitution against which the letters patent appeal is not maintainable. the order of learned single judge was passed on 9 11 2005 against the said order special leave petition was filed which was disposed of by this court by order dated 16 2 2006 we shall refer to the text of the order later. the high court construed as if this court has only waived the limitation for filing of letters patent appeal and there was no direction to consider the case on merits. learned counsel for the appellant submitted that the order of this court is very clear and the conclusions of the high court that merely limitation was waived is contrary to the clear terms of the earlier order of this court. additionally it is submitted that the prayer in the writ petition was to quash the order passed by the assistant commissioner commercial tax. that being so the mere fact that the writ petition was styled u art 227 of the constitution is of no consequence. it is the nature of the relief sought for and the controversy involved which determines the article which is applicable. learned counsel for the respondent state on the other hand supported the impugned judgment of the high court. the earlier order passed by this court dated 22 8 2006 reads as follows heard. since the impugned order is passed by a learned single judge. the normal remedy is to file a letters patent appeal. since we had entertained the special leave petition against the learned single judge 's order it would be appropriate to grant three weeks time to the petitioner to prefer the lpa which if otherwise free from defect shall be entertained for being considered on merits. the interim order passed by this court shall continue for the aforesaid purpose. the special leave petition is disposed of accordingly. underlined for emphasis. a bare reading of the order shows that the direction was to consider the lpa on merits and time was granted to prefer the lpa within three weeks. the high court was directed to dispose of the lpa on merits if it was otherwise free from defect. the high court was therefore not justified in holding that this court 's earlier order only waived the limitation for filing a letters patent appeal. on that score alone the high court 's order is unsustainable. in addition the high court seems to have gone by the nomenclature gone by the nomenclature i e the discription given in the writ petition to be one u art 227 of the constitution. the high court did not consider the nature of the controversy and the prayer involved in the writ petition. as noted above the prayer was to quash the order of assessment passed by the assistant commissioner commercial tax levying purchase as well as entry tax. s 2 of the act reads as follows 21. an appeal shall lie from a judgment or order passed by the one judge of the high court in exercise of original jurisdiction u art 226 of the constitution of india to a division bench comprising of two judges of the same high court. provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction u art 227 of the constitution of india. this court in hari vishnu kamath v syed ahmad ishaque and ors air 1955 sc 233 1954 indlaw sc 212 held that the high court while issuing writ of certiorari u art 226 of the constitution can only annul a decision of a tribunal whereas u art 227 of the constitution it can issue further directions as well. as noted above the prayer in the writ petition was to set aside the decision of the assessing officer. in umaji keshao meshram v radhikabai air 1986 sc 1272 1986 indlaw sc 651. it was noted as follows. u art 226 an order direction or writ is to issue to a person authority or the state. in a proceeding under that article the person authority or state against whom the direction order or writ is sought is a necessary party. under article 227however what comes up before the high court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. prior to the commencement of the constitution the chartered high courts as also the judicial committee had held that the power to issue prerogative writs possessed by the chartered high courts was an exercise of original jurisdiction see mahomedalli allabux v ismailji abdulali air 1926. bom 332 1926 indlaw mum 144raghunath keshav khadilkar v poona municipalityair. 1945 bom 7 1943 indlaw mum 140 ryots of garabandho v zemindar of parlakimedi air 1943 pc 164 1943 indlaw pc 23 and moulvi hamid hasan nomani. v banwarilal roy 1947 indlaw pc 15 1946 47 74 ind app 120130 131 in the last mentioned case which dealt with the nature of a writ of quo warranto. the judicial committee held in their lordships opinion any original civil jurisdiction possessed by the high court and not in express terms conferred by the letters patent or later enactments falls within the description of ordinary original civil jurisdiction. by art 226 the power of issuing prerogative writs possessed by the chartered high courts prior to the commencement of the constitution has been made wider and more extensive and conferred upon every high court. the nature of the exercise of the power under article 226however remains the same as in the case of the power of issuing prerogative writs possessed by the chartered high courts. a series of decisions of this court has firmly established that a proceeding u art 226 is an original proceeding and when it concerns civil rights it is an original civil proceeding see for instance state of u p v. vijay anand maharaj. 1963 1 scr 1 1962 indlaw sc 34016cit v ishwarlal bhagwandas air 1965 sc 1818 1965 indlaw sc 158ramesh v seth gendalal motilal patni 1966 3 scr 198 1966 indlaw sc 395arbind kumar singh v nand kishore prasad1968 3 scr 322 1968 indlaw sc 223 and ahmedabad mfg calico ptg. co ltd v. ram tahel ramnand air 1972 sc 1598 1972 indlaw sc 378. it was noted as follows. the non obstante clause in rule 18namelynotwithstanding anything contained in rules 14 and 17 of this chaptermakes it abundantly clear why that rule uses the words finally disposed of. as seen above under rules 1 and 17applications u arts 226 and 227 are required to be heard and disposed of by a division bench. rule 4however gives power to a single judge to issue rule nisi on an application u art 226. but precludes him from passing any final order on such application. it is because a single judge has no power under rules 14 and 17 to hear and dispose of a petition u art 226 or 227 that the non obstante clause has been introduced in rule 18 the use of the words be heard and finally disposed of by a single judge in rule 18 merely clarifies the position that in such cases the power of the single judge is not confined merely to issuing a rule nisi. these words were not intended to bar a right of appeal. to say that the words finally disposed of mean finally disposed of so far as the high court is concerned is illogical because rules 14 and 7 use the words be heard and disposed of by a divisional bench and were the reasoning of the full bench correct it would mean that so far as the high court is concerned when a single judge hears a matter and disposes it of it is finally disposed of and when a division bench disposes it of it is not finally disposed of. the right of appeal against the judgment of a single judge is given by the letters patent which have been continued in force by art 225 of the constitution. if under the rules of the high court a matter is heard and disposed of by a single judge an appeal lies against his judgment unless it is barred either under the letters patent or some other enactment. the word finally used in rule 18 of chapter xvii of the appellate side rules does not and can not possibly have the effect of barring a right of appeal conferred by the letters patent. as we have seen above an intra court appeal against the judgment of a single judge in a petition u art 226 is not barred while cl 15 itself bars an intra court appeal against the judgment of a single judge in a petition u art 227. in sushilabai laxminarayan mudliyar v nihalchand waghajibhai shaha 1993 supp 1 scc 11 1991 indlaw sc 718. this court with reference to an unreported judgment in ratnagiri district central co operative bank ltd v. dinkar kashinath watve 1989 indlaw sc 421c a no 520 of 1989 decided on 27 1 1989 held as follows even when in the cause title of an application both art 226 and art 227 of the constitution have been mentioned the learned single judge is at liberty to decide according to facts of each particular case whether the said application ought to be dealt with only u art 226 of the constitution. for determining the question of maintainability of an appeal against such a judgment of the single judge the division bench has to find out whether in substance the judgment has been passed by the learned single judge in exercise of the jurisdiction u art 226 of the constitution. in the event in passing his judgment on an application which had mentioned in its cause title both arts 226 and 227the single judge has in fact invoked only his supervisory powers under article 227the appeal under cl 15 would not lie. the cl 15 of the letters patent expressly bars appeals against orders of single judges passed under revisional or supervisory powers. even when the learned single judge 's order has been passed under both the articles for deciding the maintainability against such an order what would be relevant is the principal or main relief granted by the judgment passed by learned single judge and not the ancillary directions given by him. the expression ancillary means in the context incidental or consequential to the main part of the order. thus the determining factor is the real nature of principal order passed by the single judge which is appealed against and neither the mentioning in the cause title of the application of both the articles nor the granting of ancillary orders thereupon made by learned single judge would be relevant. thus in each case the division bench may consider the substance of the judgment under appeal to ascertain whether the single judge has mainly or principally exercised in the matter his jurisdiction. u art 226 or u art 227 in. the event in his judgment the learned single judge himself had mentioned the particular article of the constitution under which he was passing his judgment in an appeal under cl 15 against such a judgment it may not be necessary for the appellate bench to elaborately examine the question of its maintainability. when without mentioning the particular article the learned single judge decided on merits the application in order to decide the question of maintainability of an appeal against such a judgment the division bench might examine the relief granted by the learned single judge for maintainability of an appeal the determination would be the main and not the ancillary relief. when a combined application u arts 226 and 227 of the constitution is summarily dismissed without reasons the appeal court may consider whether the facts alleged warranted filing of the application u art 226 or u art 227 of the constitution. thereafter this court explained the ratio laid down in the case of umaji 's case1986 indlaw sc 651 supra and expressed thus in umaji case it was clearly held that where the facts justify a party in filing an application either u art 226 or 227 of the constitution of india and the party chooses to file his application under both these articles in fairness of justice to party and in order not to deprive him of valuable right of appeal the court ought to treat the application as being made under article 226and if in deciding the matter in the final order the court gives ancillary directions which may pertain to article 227this ought not to be held to deprive a party of the right of appeal under cl 15 of the letters patent where the substantial part of the order sought to be appealed against is u art 226 rule 18 of the bombay high court appellate side rules read with cl 15 of the letters patent provides for appeal to the division bench of the high court from a judgment of the learned single judge passed on a writ petition u art 226 of the constitution. in the present case the division bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned single judge. in mangalbhai ors v. radhyshyam dr air 1993 sc 806 1992 indlaw sc 509 it was inter alia observed as follows the learned single judge in his impugned judgment dated december 111987 nowhere mentioned that he was exercising the powers u art 227 of the constitution. the learned single judge examined the matter on merit and set aside the orders of the rent controller as well as the resident deputy collector on the ground that the aforesaid judgments were perverse. the findings of the rent controller and resident deputy collector were set aside on the question of habitual defaulter as well as on the ground of bona fide need. thus in the totality of the facts and circumstances of the case the pleadings of the parties in the writ petition and the judgment of the learned single judge leaves no manner of doubt that it was an order passed u art 226 of the constitution and in that view of the matter the letters patent appeal was maintainable before the high court. after taking the aforesaid view one course open was to set aside the order of the division bench and to remand the matter for being disposed of on merits by the division bench of the high court. however taking in view the fact that this litigation is going on for nearly a decade and also the fact that even the learned single judge in his impugned order dated december 111987 had remanded the case to the rent controller we considered it proper in the interest of justice to hear the appeal on merits against the judgment of the learned single judge. we have heard learned counsel for the parties at length on the merits of the case. in lokmat newspapers p shankarprasad 1999 6 scc 275 1999 indlaw sc 587. it was observed as follows it is therefore obvious that the writ petition invoking jurisdiction of the high court both u arts 226 and 227 of the constitution had tried to make out a case for the high court 's interference seeking issuance of an appropriate writ of certiorari u art 226 of the constitution of india. basic averments for invoking such a jurisdiction were already pleaded in the writ petition for the high court 's consideration. it is true as submitted by learned counsel for the appellant that the order of the learned single judge nowhere stated that the court was considering the writ petition u art 226 of the constitution of india. it is equally true that the learned single judge dismissed the writ petition by observing that the courts below had appreciated the contentions and rejected the complaint. but the said observation of the learned single judge did not necessarily mean that the learned judge was not inclined to interfere u art 227 of the constitution of india only. the said observation equally supports the conclusion that the learned judge was not inclined to interfere u arts 226 and 227 as seen earlier he was considering the aforesaid writ petition moved u art 226 as well as art 227 of the constitution of india. under these circumstances it is not possible to agree with the contention of learned counsel for the appellant that the learned single judge had refused to interfere only u art 227 of the constitution of india when he dismissed the writ petition of the respondent. in this connection it is profitable to have a look at the decision of this court in the case of umaji keshao meshram v radhikabai 1986 supp. scc 401 1986 indlaw sc 651 in. that case o chinnappa reddy and d p madon. jj considered the very same question in the light of cl 15 of the letters patent of the bombay high court. madon j speaking for the court made the following pertinent observations petitions are at times filed both u arts 226 and 227 of the constitution. the case of hari vishnu kamath v syed ahmad ishaque air 1955 sc 233 1954 indlaw sc 212 before this court was of such a type. rule 18 provides that where such petitions are filed against orders of the tribunals or authorities specified in rule 18 of chapter xvii of the appellate side rules or against decrees or orders of courts specified in that rule they shall be heard and finally disposed of by a single judge. the question is whether an appeal would lie from the decision of the single judge in such a case. in our opinion where the facts justify a party in filing an application either u art 226 or 227 of the constitution and the party chooses to file his application under both these articles in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the court ought to treat the application as being made under article 226and if in deciding the matter in the final order the court gives ancillary directions which may pertain to article 227this ought not to be held to deprive a party of the right of appeal under cl 15 of the letters patent where the substantial part of the order sought to 296be appealed against is u art 226 such was the view taken by the allahabad high court in aidal singh v karan singh air 1957 all 414 1956 indlaw all 107 and by the punjab high court in raj kishan jain v tulsi dass air 1959 punj 291 1958 indlaw pnh 109 and barham dutt v peoples coop. transport society ltd air 1961 punj 24 1960 indlaw pnh 196 and we are in agreement with it. the aforesaid decision squarely gets attracted on the facts of the present case. it was open to the respondent to invoke the jurisdiction of the high court both u arts 226 and 227 of the constitution of india. once such a jurisdiction was invoked and when his writ petition was dismissed on merits it can not be said that the learned single judge had exercised his jurisdiction only u art 226 of the constitution of india. this conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned single judge in his judgment as seen earlier. consequently it could not be said that cl 15 of the letters patent was not attracted for preferring appeal against the judgment of the learned single judge. it is also necessary to note that the appellant being the respondent in letters patent appeal joined issues on merits and did not take up the contention that the letters patent appeal was not maintainable. for all these reasons therefore the primary objection to the maintainability of the letters patent appeal as canvassed by learned counsel for the appellant has to be repelled. point 1 is therefore answered in the affirmative against the appellant and in favour of the respondent. it takes us to the consideration of points arising for our decision on merits. in surya dev rai v ram chander rai ors air 2003 sc 3044 2003 indlaw sc 598 after referring to decisions in custodian of evacuee property bangalore v khan saheb abdul shukoor etc 1961 3 scr 855 1961 indlaw sc 499 and nagendra nath bora. anr v. commissioner of hills division. air 1958 sc 398 1958 indlaw sc 62t c basappa v t nagappa air 1954 sc 440 1954 indlaw sc 39 and rupa ashok hurra v ashok hurra air 2002 sc 1771 2002 indlaw sc 1966this court held as follows from the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition nature of the order passed by the learned single judge character and the contour of the order directions issued nomenclature given the jurisdictional prospective in the constitutional context are to be perceived. it can not be said in a hypertechnical manner that an order passed in a writ petition if there is assail to the order emerging from the inferior tribunal or subordinate court has to be treated all the time for all purposes to be u art 227 of the constitution of india. phraseology used in exercise of original jurisdiction u art 226 of the constitution in s 2 of the act can not be given a restricted and constricted meaning because an order passed in a writ petition can tantamount to an order u art 226 or 227 of the constitution of india and it would depend upon the real nature of the order passed by the learned single judge. to elaborate whether the learned single judge has exercised his jurisdiction u art 226 or u art 227 or both would depend upon various aspects and many a facet as has been emphasized in the afore quoted decisions of the apex court. the pleadings as has been indicated hereinabove also assume immense significance. as has been held in the case of surya devi rai supra a writ of certiorari can be issued u art 226 of the constitution against an order of a tribunal or an order passed by the sub ordinate court. in quintessentiality it can not be put in a state jacket formula that any order of the learned judge that deals with an order arising from an inferior tribunal or the sub ordinate court is an order u art 227 of the constitution of india and not an order u art 226 of the constitution. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of arts 226 and 227 of the constitution in a composite manner and they can coincide co exit overlap imbricate. in this context it is apt to note that there may be cases where the learned single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that art 226 of the constitutions is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of the case. thus there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the high court are amenable to writ jurisdiction of the high court u art 226 of the constitution. upon a review of decided cases and a survey of the occasions wherein the high courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction u art 227 in the given facts and circumstances in a variety of cases it seems that the distinction between the two jurisdictions stands almost obliterated in practice. probably this is the reason why it has become customary with the lawyers labelling their petitions as one common u arts 226 and 227 of the constitution though such practice has been deprecated in some judicial pronouncement. without entering into niceties and technicality of the subject we venture to state the broad general difference between the two jurisdictions. firstly the writ of certiorari is an exercise of its original jurisdiction by the high court exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. secondly in a writ of certiorari the record of the proceedings having been certified and sent up by the inferior court or tribunal to the high court the high court if inclined to exercise its jurisdiction may simply annul or quash the proceedings and then do no more. in exercise of supervisory jurisdiction the high court may not only quash or set aside the impugned proceedings judgment or order but it may also make such directions as the facts and circumstances of the case may warrant maybe by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the high court. in appropriate cases the high court while exercising supervisory jurisdiction may substitute such a decision of its own in place of the impugned decision as the inferior court or tribunal should have made. lastly the jurisdiction u art 226 of the constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved the supervisory jurisdiction is capable of being exercised suo motu as well. in view of what has been stated above the high court was not justified in holding that the letters patent appeal was not maintainable. in addition a bare reading of this court 's earlier order shows that the impugned order is clearly erroneous. the impugned order is set aside. the writ appeal shall be heard by the division bench on merits. the appeal is allowed.

FACTS challenge in this appeal is to the judgment of a division bench of the madhya pradesh high court dismissing the writ appeal filed by the appellant on the ground that it was not maintainable. the appeal was filed u/s.2(1) of the m.p.uchacha nyayalay (khand nyaypeth ko appeal) adhiniyam,2005. it was held that the order was passed in exercise of power of superintendence u/art.227 of the constitution of india,1950 (in short the 'constitution') against which the letters patent appeal is not maintainable. ARGUMENT learned counsel for the appellant submitted that the order of this court is very clear and the conclusions of the high court that merely limitation was waived is contrary to the clear terms of the earlier order of this court. additionally it is submitted that the prayer in the writ petition was to quash the order passed by the assistant commissioner,commercial tax. ISSUE whether to quash the order of assessment passed by the assistant commissioner,commercial tax levying purchase as well as entry tax. ANALYSIS the writ petition was styled u/art.227 of the constitution is of no consequence. it is the nature of the relief sought for and the controversy involved which determines the article which is applicable. a bare reading of the order shows that the direction was to consider the lpa on merits and time was granted to prefer the lpa within three weeks. the high court's order is unsustainable. the high court seems to have gone by the nomenclature gone by the nomenclature i.e.the discription given in the writ petition to be one u/art.227 of the constitution. the high court did not consider the nature of the controversy and the prayer involved in the writ petition. by art.226 the power of issuing prerogative writs possessed by the chartered high courts prior to the commencement of the constitution has been made wider and more extensive and conferred upon every high court. in umaji keshao meshram v. radhikabai [air 1986 sc 1272 1986 indlaw sc 651. it was noted as follows. u/art.226 an order,direction or writ is to issue to a person,authority or the state. in a proceeding under that article the person,authority or state against whom the direction,order or writ is sought is a necessary party. under article 227,however,what comes up before the high court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. the nature of the exercise of the power under article 226,however,remains the same as in the case of the power of issuing prerogative writs possessed by the chartered high courts. it was open to the respondent to invoke the jurisdiction of the high court both u/arts.226 and 227 of the constitution of india. once such a jurisdiction was invoked and when his writ petition was dismissed on merits,it cannot be said that the learned single judge had exercised his jurisdiction only u/art.226 of the constitution of india. this conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned single judge in his judgment,as seen earlier. consequently,it could not be said that cl.15 of the letters patent was not attracted for preferring appeal against the judgment of the learned single judge. it is also necessary to note that the appellant being the respondent in letters patent appeal joined issues on merits and did not take up the contention that the letters patent appeal was not maintainable. for all these reasons,therefore,the primary objection to the maintainability of the letters patent appeal as canvassed by learned counsel for the appellant,has to be repelled. the high court was not justified in holding that the letters patent appeal was not maintainable. in addition,a bare reading of this court's earlier order shows that the impugned order is clearly erroneous. STATUTE s.2 of the m.p.uchacha nyayalay (khand nyaypeth ko appeal) adhiniyam,2005 reads as follows: "2(1. an appeal shall lie from a judgment or order passed by the one judge of the high court in exercise of original jurisdiction u/art.226 of the constitution of india,to a division bench comprising of two judges of the same high court. provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction u/art.227 of the constitution of india.

FACTS challenge in this appeal is to the judgment of a division bench of the madhya pradesh high court dismissing the writ appeal filed by the appellant on the ground that it was not maintainable. the appeal was filed u/s.2(1) of the m.p.uchacha nyayalay (khand nyaypeth ko appeal) adhiniyam,2005. it was held that the order was passed in exercise of power of superintendence u/art.227 of the constitution of india,1950 against which the letters patent appeal is not maintainable. the prayer in the writ petition was to set aside the decision of the assessing officer. ARGUMENT the order of this court is very clear and the conclusions of the high court that merely limitation was waived is contrary to the clear terms of the earlier order of this court. additionally it is submitted that the prayer in the writ petition was to quash the order passed by the assistant commissioner, commercial tax. ISSUE whether to quash the order of assessment passed by the assistant commissioner,commercial tax levying purchase as well as entry tax. ANALYSIS the writ petition was styled u/art.227 of the constitution is of no consequence. it is the nature of the relief sought for and the controversy involved which determines the article which is applicable. the high court's order is unsustainable. the high court did not consider the nature of the controversy and the prayer involved in the writ petition. by art.226 the power of issuing prerogative writs possessed by the chartered high courts prior to the commencement of the constitution has been made wider and more extensive and conferred upon every high court. in umaji keshao meshram v. radhikabai [air 1986 sc 1272 1986 indlaw sc 651. it was noted that under article 226 an order,direction or writ is to issue to a person,authority or the state. in a proceeding under that article the person,authority or state against whom the direction,order or writ is sought is a necessary party. under article 227,however,what comes up before the high court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. the nature of the exercise of the power under article 226,however,remains the same as in the case of the power of issuing prerogative writs possessed by the chartered high courts. it was open to the respondent to invoke the jurisdiction of the high court both u/arts.226 and 227 of the constitution of india. once such a jurisdiction was invoked and when his writ petition was dismissed on merits,it cannot be said that the learned single judge had exercised his jurisdiction only u/art.226 of the constitution of india. this conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned single judge in his judgment,as seen earlier. consequently,it could not be said that cl.15 of the letters patent was not attracted for preferring appeal against the judgment of the learned single judge. it is also necessary to note that the appellant being the respondent in letters patent appeal joined issues on merits and did not take up the contention that the letters patent appeal was not maintainable. for all these reasons,therefore,the primary objection to the maintainability of the letters patent appeal as canvassed by learned counsel for the appellant,has to be repelled. the high court was not justified in holding that the letters patent appeal was not maintainable. in addition,a bare reading of this court's earlier order shows that the impugned order is clearly erroneous. in surya dev rai v.ram chander rai & ors.[air 2003 sc 3044 2003 indlaw sc 598] after referring to decisions in custodian of evacuee property,bangalore v.khan saheb abdul shukoor,etc.[1961 (3) scr 855 1961 indlaw sc 499] and nagendra nath bora & anr.v.commissioner of hills division [air 1958 sc 398 1958 indlaw sc 62],t.c.basappa v.t.nagappa [air 1954 sc 440 1954 indlaw sc 39] and rupa ashok hurra v.ashok hurra [air 2002 sc 1771 2002 indlaw sc 1966],this court held that from the aforesaid enunciation of law it is quite vivid and luminescent that the pleadings in the writ petition,nature of the order passed by the learned single judge,character and the contour of the order,directions issued,nomenclature given the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hypertechnical manner that an order passed in a writ petition,if there is assail to the order emerging from the inferior tribunal or subordinate court has to be treated all the time for all purposes to be u/art.227 of the constitution of india. STATUTE s.2 of the m.p.uchacha nyayalay (khand nyaypeth ko appeal) adhiniyam,2005 reads as- an appeal shall lie from a judgment or order passed by the one judge of the high court in exercise of original jurisdiction u/art.226 of the constitution of india,to a division bench comprising of two judges of the same high court. provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction u/art.227 of the constitution of india.

aggrieved by the decision of customs excise and gold control appellate tribunal cegat dated 11 4 2000the appellants assessee have come by way of civil appeals under section 35l of the central excise act1944. appellants were engaged in the manufacture of biscuits classifiable under sub heading 1905 11 of the central excise tariff. the biscuits were sold under the brand name meghraj. under show cause notices it was alleged that the appellants herein assessee have sold the biscuits under the brand name meghrajwhich was a registered trade mark of kay aar biscuits p ltd who was using the said trade mark on manufacture of biscuits themselves and therefore the appellants were not eligible to the benefit of ssi notification no 193 ce dated 28 2 1993 as amended by notification no 5994 ce dated 1 3 1994. the above show cause notices were issued by the department demanding differential duty for the period april 1994 to june 1994 amounting to rs 374948 plus short paid duty for the period april 1995 to may 1995 amounting to rs 92992 the said demand was based on an agreement detected by the department. that agreement was between madan verma director of a company known as m s. kay aar biscuits p. ltd ghaziabad and m s rich food products p ltd noida. under the said agreement m s kay aar biscuits p ltd was. party no 1 under the agreement. it was declared that m s kay aar biscuits p ltd was the owner of the registered trade mark meghraj. under the agreement. it was stated that m s kay aar biscuits p ltd was using the aforestated trade mark meghraj for the manufacture of biscuits. under the agreement there was a recital under which it was stated that m s. rich food products p. ltd had put up a unit for manufacture of wafers in noida which it sought to manufacture under the brand name meghraj. under. the said agreement m s kay aar biscuits p ltd gave permission to m s rich food products pvt. ltd to use its trade mark for the manufacture of wafers alone. the said agreement was valid for three years commencing from 22 11 1989. at this stage it may be noted that the appellants herein claim to have started manufacture of biscuits in 1991 the biscuits were sold in wrapper mentioning the name of the appellantsm s. meghraj biscuits industries ltd or meghraj. the appellants claimed that it has been using the wrapper since beginning and since 1991 the use of the trade name or brand name meghraj has never been challenged. the assistant commissioner ghaziabad examined the printed wrappers. he came to the conclusion vide his orders that the trade name meghraj was in the form of a logo printed on the wrapper of the biscuits and therefore the appellants were not entitled to the benefit of notification no 193 ce dated 28 2 93 as amended by notification no 5994 dated 1 3 94 consequently the adjudicating authority called upon the appellants to pay differential duty for the period april 1994 to june 1994 amounting to rs 374948 plus short paid duty for the period april 1995 to may 1995 amounting to rs 92992. aggrieved by the decision of the adjudicating authority the assessee preferred appeals to the commissioner a the said appeals were rejected on the ground that the appellants were using the brand name meghraj of another manufacturer m s kay aar biscuits p ltd on their products biscuits and therefore they were not entitled to the benefit of exemption under notification no 193 ce as amended. it was held that the word meghraj was printed on all the printed wrappers and therefore it was wrong to say that the appellants were not using the brand name meghraj on its products. in this connection reliance was placed by the commissioner a on the said agreement dated 22 11 89 before the commissioner a the appellants herein contended that they had used the name m s meghraj biscuits industries ltd on the wrapper and not on the product. and therefore they were entitled to exemption. this argument was rejected by the commissioner a saying that the appellants were using the brand name meghraj on their products. according to the commissioner athe appellants used the trade name meghraj in the form of a logo which was printed on the wrapper. before the commissioner ait was argued in the alternative that the logo belonged to m s. kay aar biscuits p ltd. that the same was registered ssi unit that m s kay aar biscuits p ltd was lying closed since 1 3 93 and therefore the appellants have been using that logo of m s kay aar biscuits p ltd who was eligible for exemption under notification no 193 ce as amended. this contention was rejected by the commissioner a on the ground that under the notification no 193 ce as amended exemption was not available to the specified goods bearing brand name or trade name registered or not of another person. since the appellants herein had used the trade name meghraj on their products which trade name was owned by m s ltd the appellants were not entitled to the benefit of exemption under notification no 193 ce as amended. accordingly the commissioner a dismissed the appeals. the orders of the commissioner a have been confirmed by order dated 11 4 2000 passed by cegat. hence these civil appeals. to complete the chronology of events it may be pointed out that after the impugned decision of the tribunal dated 11 4 2000the appellants herein moved an application for rectification on 12 5 2000 rom no 722000 in that application it was urged on behalf of the appellants herein that the said brand name meghraj did not belong to m s kay aar biscuits p ltd that the department has failed to discharge its burden to prove that the trade name meghraj belonged to m s kay aar biscuits p ltd that a mere agreement between m s. ltd and m s. rich food products p ltd would not be sufficient to prove that m s kay aar biscuits p ltd was the lawful owner of the brand name. meghraj. in the rectification application. it was further pointed out that in fact the appellants had applied for ownership of the brand name meghraj vide application dated 30 9 91 to the registrar trade marks under the trade marks act and that the said application for registration was pending before the competent authority and since the above arguments were not recorded in the impugned order of the cegat dated 11 4 2000 the same warranted rectification. by order dated 8 12 2000cegat rejected the above rectification application made by the appellants. one more fact needs to be mentioned that on 30 6 2000 the registrar of trade marks appears to have issued registration certificate on 30 6 2000 registering the trade mark meghraj in favour of the appellants with effect form 30 9 91 it appears that issuance of this certificate was mentioned before the cegat which rejected the rectification application on 8 12 2000. notification no 193 ce dated 28 2 93 was issued to help the ssi units to survive in the market dominated by brand name trade name. the object of the notification therefore was to help the ssi units and thereby increased industrial production. under para 4 of the said notification the benefit of exemption was not available for excisable goods bearing brand name or trade name registered or not of another person. explanation ix defined the word brand name or trade name. the same is quoted hereinbelow. explanation ix brand name or trade name shall mean a brand name or trade name whether registered or not that is to say a name or a mark such as symbol monogram label signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. notification no 193 ce dated 28 2 1993 was subsequently amended by notification no 5994 dated 1 3 94 para 7 of notification no 193 ce as amended read as under para 7 the exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name registered or not of another person who is not eligible for the grant of exemption under this notification. in the present case as stated above m s kay aar biscuits p ltd entered into an agreement on 22 11 89 with m s rich food products p ltd under that agreement the director of m s kay aar biscuits p ltd declared that his company was the owner of the registered trade mark meghraj. the name of that director is madan verma. he is the director of the appellants company also. further there is no evidence to show as to whether m s kay aar biscuits p ltd was an eligible manufacturer. this aspect is important since one of the arguments advanced by the appellants herein before the commissioner a was that the trade mark belonged to m s ltd which was registered ssi unit lying closed since 1 3 1993. no explanation has been given as to why madan verma has not been examined by the appellants. he has not been examined even on the question of alleged transfer of the trade mark in favour of the appellants. in the circumstances we do not find any merit in this appeal. on behalf of the appellants it has been vehemently argued that m s kay aar biscuits p ltd was never the registered owner of the trade mark meghraj. it was urged that merely because an agreement stood entered into on 22 11 89 between m s ltd. the department had erred in alleging that the trade mark belonged to m s it was urged that m s ltd had never got the trade mark registered under the trade marks act. it was urged that a false declaration was made by m s kay aar biscuits p ltd under the above agreement on 22 11 89. it was urged that a mere agreement between two parties can not constitute ownership of the trade mark in favour of m s it was urged that in any event m s kay aar biscuits p ltd had stopped its production in 1993 that the company had become defunct that the appellants herein had applied to the registrar of trade marks for registration of the mark meghraj and vide registration certificate dated 30 6 2000 the registrar has recognized the appellants as owner of the trade mark with effect from 30 9 91 in the circumstances the appellants submitted that the demand for differential duty was unwarranted. we do not find any merit in the above arguments. in the case of pahwa chemicals pvt. ltd v. commissioner of central excise delhi 2005 189. elt 257 2005 indlaw sc 799sc. this court has held that the object of the exemption notification was neither to protect the owners of the trade mark nor the consumers from being misled. these are considerations which are relevant in disputes arising out of infringement passing of actions under the trade marks act. the object of the notification is to grant benefits only to those industries which otherwise do not have the advantage of a brand name. applying the ratio of the above judgment to the present case it is clear that grant of registration certificate under the trade marks act will not automatically provide benefit of exemption to the ssi unit. in the case of commissioner of central excise chandigarh v bhalla enterprises 2004. elt 225 2004 indlaw sc 996scthis court held that the assessee will not be entitled to the benefit of exemption if it uses on goods in question same similar brand name with intention of indicating a connection with the goods of the assessee and such other person or uses the name in such manner that it would indicate such connection. it was further held that the burden is on the assessee to satisfy the adjudicating authority that there was no such intention. applying the above test to the facts of the present case madan verma is a common director in the two companies. he has filed an affidavit enclosing the registration certificate dated 30 6 2000. however in that affidavit he has not stated as to on what basis in the agreement of 23 11 89 signed by him he had declared that m s ltd is the owner of the registered trade mark meghraj. there is no deed of assignment from m s kay aar biscuits p ltd in favour of the appellants herein. the department has rightly placed reliance on the agreement of 23 11 89 in the circumstances the burden was on the assessee appellants herein to satisfy the adjudicating authority that there was no intention of indicating a connection with the goods of the assessee and such other person. before us it has been urged that m s ltd is non functional since 1 3 93 and therefore in any event appellants were entitled to use the trade mark meghraj. this argument is based on the concept of abandonment. we do not find any merit in this argument. discontinuation of business in respect of a product does not necessarily amount to abandonment. in the present case there is no evidence from the side of the appellants indicating abandonment of the trade mark by m s although madan verma the director of m s kay aar biscuits p ltd has filed his affidavit enclosing the registration certificate he has nowhere stated that m s ltd has abandoned the trade mark. in the circumstances the department was right in rejecting the above contention. abandonment of the trade mark has to be proved by the appellants in the present case. the burden is on the appellants particularly when the department is relying upon the agreement dated 23 11 89 between m s lastly we are required to examine the retrospective effect of the registration certificate dated 30 6 2000 with effect from 30 9 91 at the outset we may reiterate that the object of the exemption notification was neither to protect the owners of the trade mark nor the consumers from being misled. these are considerations which are relevant in disputes arising under the trade marks act. the object of the exemption notification no 193 ce was to grant benefits to those industries which do not have the advantage of a brand name. however since retrospective nature of the registration certificate dated 30 6 2000 is repeatedly being raised in this court we would like to examine the case law in this regard. the trade marks act1999 has been enacted to amend and consolidate the law relating to trade marks to provide for registration and better protection of trade marks and for prevention of the use of fraudulent marks. u s 28 of the trade marks act1999registration gives to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the trade marks act. it is correct to say that the registrar trade marks can issue registration certificate u s 28 of the trade marks act with retrospective effect. the question before us is what is the effect of issuance of registration certificate with retrospective effect. this question has been decided by the bombay high court in the case of sunder parmanand lalwani and others v caltex india ltd air 1969 bombay 24 1965 indlaw mum 1419 in which it has been held vide paras 32 and 38 as follows a proprietary right in a mark can be obtained in a number of ways. the mark can be originated by a person or it can be subsequently acquired by him from somebody else. our trade marks law is based on the english trade marks law and the english acts. the first trade marks act in england was passed in 1875 even prior thereto it was firmly established in england that a trader acquired a right of property in a distinctive mark merely by using it upon or in connection with goods irrespective of the length of such user and the extent of his trade and that he was entitled to protect such right of property by appropriate proceedings by way of injunction in a court of law. then came the english trade marks act of 1875which was substituted later by later acts. the english acts enabled registration of a new mark not till then used with the like consequences which a distinctive mark had prior to the passing of the acts. the effect of the relevant provision of the english acts was that registration of a trade mark would be deemed to be equivalent to public user of such mark. prior to the acts one could become a proprietor of a trade mark only by user but after the passing of the act of 1875one could become a proprietor either by user or by registering the mark even prior to its user. he could do the latter after complying with the other requirements of the act including the filing of a declaration of his intention to use such mark. see observations of llyod jacob j in 1956 rpc 1 in the matter of vitamins ltd 's application for trade mark at p 12and. particularly the following a proprietary right in a mark sought to be registered can be obtained in a number of ways. the mark can be originated by a person or can be acquired but in all cases it is necessary that the person putting forward the application should be in possession of some proprietary right which if questioned can be substantiated. law in india under our present act is similar. a person may become a proprietor of a trade mark in diverse ways. the particular mode of acquisition of proprietorship relied upon by the applicant in this case is of his user for the first time in india in connection with watches and allied goods mentioned by him of the mark caltexwhich at the material time was a foreign mark belonging to degoumois co of switzerland and used by them in respect of watches in switzerland. before the deputy registrar and before mr justice shah proprietorship was claimed on the basis that the applicant was entitled to it as an importer 's mark. several authorities were cited and were considered and principles deduced and relied upon in that behalf. in our opinion it is not necessary in this case to go into details about facts in the various decided cases dealing with importer 's marks. in many of those cases the dispute was between a foreign trader using a foreign mark in a foreign country on goods which were subsequently imported by indian importers and sold by them in this country under that very mark. in short it was a competition between a foreign trader and the indian importer for the proprietorship of that mark in this country. we have already reached a conclusion that so far as this country is concerned degoumois co have totally disclaimed any interest in the proprietorship of that mark for watches etc. in india the mark caltex was a totally new mark for watches and allied goods. the applicant was the originator of that mark so far as that class of goods is concerned and so far as this country is concerned. he in fact used it in respect of watches. there is no evidence that that mark was used by anyone else in this country before the applicant in connection with that class of goods. unquestionably the applicant 's user was not large but that fact makes no difference because so far as this country is concerned the mark was a new mark in respect of the class of goods in respect of which the applicant used it. we therefore hold that the applicant is the proprietor of that mark. emphasis supplied. on reading the above quoted paragraphs from the above judgment with which we agree it is clear that the effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. this deeming fiction can not be extended to the excise law. it is confined to the provisions of the trade marks act. in a given case like the present case where there is evidence with the department of the trade mark being owned by m s ltd and where there is evidence of the appellants trading on the reputation of m s ltd which is not rebutted by the appellants assesseeissuance of registration certificate with retrospective effect can not confer the benefit of exemption notification to the assessee. in the present case issuance of registration certificate with retrospective effect from 30 9 91 will not tantamount to conferment of exemption benefit under the excise law once it is found that the appellants had wrongly used the trade mark of m s. in the case of consolidated foods corporation v brandon and co. air 1965 bombay 35 1961 indlaw mum 91it has been held vide paras 27 and 30 that the trade marks act merely facilitates the mode of proof. instead of compelling the holder of a trade mark in every case to prove his proprietary right the act provides a procedure whereby on registration the owner gets certain facilities in the mode of proving his title. we quote hereinbelow paras 27 and 30 of the said judgment which read as follows at any rate it must be remembered that in this case i am not dealing with a passing off action or an action for infringement of a trade mark which is alleged to be common property. the case put up by the petitioner corporation that it was the first to use the mark monarch in this country on its food products and that in as much as the mark monarch was admittedly a distinctive mark it had acquired the right to get the mark registered in its name and also the right to oppose the application of any other trader in this country seeking to get that mark registered in his name in respect of the food products manufactured or sold by him. apparently in such a case there is no question of infringement of any right of property in a trade mark for which any relief is sought nor is there any question of passing off so that it might be necessary to enter into questions of nicety as regards whether there could or could not be any property in a trade mark. as already stated by me while referring to the observations of sir john romily it is not really necessary for me to decide in this case as to whether there could or could not be any property in a trade mark for the purpose of deciding this case. even if it is found to be necessary to decide this question as to property in a trade mark i have already pointed out that the courts of equity in england granted relief in cases of infringement of trade marks on the basis of infringement of the right of property in the trade mark. there was no other basis on which those courts could give any relief to the plaintiffs in such cases and for the purpose of such relief the courts of equity did not require the plaintiff to prove that his mark by any length of user was associated in the minds of the public with his goods. all that was necessary for the plaintiff to prove was that he had used that mark in respect of his particular type of goods. that was enough in the eyes of the courts of equity to entitle him to a relief by way of an injunction in case of an infringement of his mark by some other trader. i have also pointed out that the statute which came to be enacted in england in 1875 and the subsequent statutes did nothing more than to embody the rights in relation to trade marks which were already laid down by the courts of equity. as a matter of fact the statute enabled a person to have registered a mark not only which he had been using but also a mark which he proposed to use. the latter type of mark would evidently refer to a distinctive mark a mark which does not directly describe the nature or quality of the goods to which it is attached. in cases of such marks whereas the courts of equity did require some slight user before the proprietor thereof could institute an action for infringement thereof the statute enabled the registration of such mark without any user at all because such mark being distinctive per se it was not necessary for the person applying for its registration to show that mark had acquired a reputation in the market so that it could be associated only with his goods and of nobody else. even so far as this country is concerned the trade marks act of 1940 does not seem to have made any change in the legal rights of the owner of a trade mark as established by the courts of chancery in england. in in re century spinning and manufacturing co ltd. 49 bom lr 52. air 1947 bom 445chagla j as he then was observed in this connection as follows the question is whether in india the trade marks act of 1940 has made any change in the legal rights of the owner of a trade mark. to my mind it is clear that even prior to the passing of this act the owner of a trade mark could maintain an action for the infringement of a trade mark and that action could only be maintained on the assumption that he was the owner of the trade mark and he had a proprietary right in the trade mark. sub cl i of s 20 of the trade marks act itself assumes and implies that such a right existed in the owner of a trade mark because it says that the unregistered holder of a trade mark can maintain a suit for the infringement of a trade mark provided that the trade mark was in use before february. 251937and an application for registration had been made and refused. as regards the question whether there could be any property in a trade mark the learned judge further observed on the same page as follows again turning to s 54 of the specific relief act which deals with cases when a perpetual injunction may be granted the explanation to that section lays down that for the purpose of that section a trade mark is property. therefore if a person invaded or threatened to invade the other 's right to or enjoyment of property the court u s 54 had the discretion to grant a perpetual injunction and trade mark was as much property for the purpose of s 54 as any other kind of property. i therefore agree with the learned advocate general that all that the trade marks act has done is to facilitate the mode of proof. instead of compelling the holder of a trade mark in every case to prove his proprietary right before he could ask the court to grant him an injunction the trade marks act provides a procedure whereby by registering his trade mark the owner gets certain facilities in the mode of proving his title. for instance under s 23 of the trade marks act registration is to be prima facie evidence of the validity of the trade mark. this was precisely the view which was expressed by lord justice romer in 1905 1 k b 592 to which i have already referred in the earlier part of the judgment. to summarise therefore a trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. the trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market. as between two competitors who are each desirous of adopting such a markit is to use familiar language entirely a question of who gets there first. gaw kan lye v saw kyone saing air 1939. rang 343. fb registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. it does however facilitate a remedy which may be enforced and obtained throughout the state and it established the record of facts affecting the right to the mark. registration itself does not create a trade mark. the trade mark exists independently of the registration which merely affords further protection under the statute. common law rights are left wholly unaffected. priority in adoption and use of a trade mark is superior to priority in registration. it was next contended by mr shavaksha that the respondent company had itself shown kipre and co private ltd. the proprietors of the mark on the labels bearing the mark monarch on the different kinds of its food products and therefore the respondent company had no right to apply for registration in its favours as if it was the proprietor thereof. it was conceded by mr shah that the labels which were used on the food products manufactured by kipre and co private ltd did bear the name of kipre and co private ltd immediately below the mark monarch and that the respondent company 's name was printed below it as sole distributors. mr shah however contended that by an agreement exhibit f made between the respondent company and kipre and co private ltd in 1951. it was clearly provided that the mark monarch belonged to the respondent company that kipre and co private ltd were only to manufacture the food products as ordered by the respondent company and that the food products so manufactured were to be bottled and packed by them for its use and benefit and that therefore in spite of kipre and co 's name appearing on the labels the respondent company was the true proprietor of the mark monarch and that therefore it was entitled to apply for its registration as proprietor thereof. now once again turning to the provisions of s 18 sub section iit is clear that only a person claiming to be the proprietor of a trade mark used by him or proposed to be used by him could make an application to the registrar for the registration thereof. according to this provision not only a person should claim to be the proprietor of a trade mark but he should prove that he had used it as such proprietor on his goods. then turning to the label as it stood at the date of the application two names appeared on the label one of kipre and co and the other of the respondent company. if these two names had stood by themselves without any further description of either of them it could be said that both kipre and co and the respondent company were jointly the owners of the mark as well as the owners of the goods to which the label was affixed. but that is not the case. the respondent company is described as the sole distributors on the label. the reasonable inference that could be drawn from this description surely is that the goods were the property of kipre and co and so also the mark. if the respondent company was really the proprietor of the mark and also the owner of the goods one would expect some such words as manufactured by kipre and co for brandon and co private ltd in the absence of any such words a person buying any of these goods on reading the label would naturally believe that what he was buying was the property of kipre and co which was selling its goods under the mark monarch. it is true as contended by mr shah that even distributors and sellers may have marks of their own but then there are ways and ways of indicating on the label itself that the mark embodied therein is the mark belonging to such distributor or seller. obviously therefore on the label as it stood it could not be said that the respondent company was the proprietor of the mark monarch nor could it be said that the mark was used by the respondent company as proprietor thereof. applying the principle of deemed equivalence we may clarify that if the ssi unit wrongly affixes a trade mark of another person be it registered or not or if it uses the trade mark of an ineligible person then such default would not be eliminated by the above principle of deemed equivalence embodied in s 28 of the trade marks act1999 as that principle is based on a deeming fiction which fiction is confined only to the provisions of the trade marks act. before concluding we may refer to the judgment of this court in the case of commissioner of central excise mumbai v bigen industries ltd 2006 197. 305 2006 indlaw sc 546 in that matter a show cause notice was issued calling upon the assessee to show cause why the exemption be not denied to the assessee. in para 19 of the show cause notice the authority accepted the existence of a deed of assignment. however the show cause notice denied the exemption on the ground that notification no 14083 ce did not make any distinction between a brand name owned by a person in india or abroad. in the present case the facts are entirely different. in the present case there is no deed or assignment from m s ltd to the m s meghraj biscuits industries ltd appellants herein as stated above there is no proof of acquisition on payment or consideration by the appellants to m s kay aar biscuits p ltd in the present case there is no evidence of assignment or licence from m s ltd to the appellants. in the present case we are concerned with the retrospective effect of the certificate issued by the registrar of trade marks on 30 6 2000 with effect from 30 9 91. in the circumstances the judgment of this court in the case of bigen industries 2006 indlaw sc 546 supra has no application. for the aforestated reasons we do not find any merit in these civil appeals. before concluding we may point out that we do not wish to express any opinion on the subsequent events which have taken place in this case. our judgment is confined only to the period in question under the impugned show cause notices. accordingly the civil appeals stand dismissed with no order as to costs. appeals dismissed.

FACTS appellants were engaged in the manufacture of biscuits classifiable under the central excise tariff. the biscuits were sold under the brand name "meghraj". under show cause notices it was alleged that the appellants herein (assessee) have sold the biscuits under the brand name "meghraj",which was a registered trade mark of kay aar biscuits (p) ltd.,who was using the said trade mark on manufacture of biscuits themselves,and,therefore,the appellants were not eligible to the benefit of ssi notification. the assistant commissioner,ghaziabad,examined the printed wrappers and came to the conclusion vide his orders that the trade name "meghraj" was in the form of a logo printed on the wrapper of the biscuits and,therefore,the appellants were not entitled to the benefit of notification. consequently,the adjudicating authority called upon the appellants to pay differential duty for the period april 1994 to june 1994 amounting to rs.3,74,948 plus short paid duty for the period april 1995 to may 1995 amounting to rs.92,992. aggrieved by the decision of the adjudicating authority,the assessee preferred appeals to the commissioner (a). the said appeals were rejected on the ground that the appellants were using the brand name "meghraj" of another manufacturer m/s.kay aar biscuits (p) ltd.on their products (biscuits) and,therefore,they were not entitled to the benefit of exemption under notification. it was held that the word "meghraj" was printed on all the printed wrappers and,therefore,it was wrong to say that the appellants were not using the brand name "meghraj" on its products. ARGUMENT the appellants herein claim to have started manufacture of biscuits in 1991.the biscuits were sold in wrapper mentioning the name of the appellants,"m/s.meghraj biscuits industries ltd." or "meghraj". the appellants claimed that it has been using the wrapper since beginning and since 1991 the use of the trade name or brand name "meghraj" has never been challenged. m/s.kay aar biscuits (p) ltd.was never the registered owner of the trade mark "meghraj". it was urged that merely because an agreement stood entered into on 22.11.89 between m/s.kay aar biscuits (p) ltd.and m/s.rich food products (p) ltd.,the department had erred in alleging that the trade mark belonged to m/s.kay aar biscuits (p) ltd. it was urged that m/s.kay aar biscuits (p) ltd.had never got the trade mark registered under the trade marks act. a mere agreement between two parties cannot constitute ownership of the trade mark in favour of m/s.kay aar biscuits (p) ltd. it was urged that in any event m/s.kay aar biscuits (p) ltd.had stopped its production in 1993; that the company had become defunct; that the appellants herein had applied to the registrar of trade marks for registration of the mark "meghraj" and vide registration certificate dated 30.6.2000 the registrar has recognized the appellants as owner of the trade mark with effect from 30.9.91. in the circumstances,the appellants submitted that the demand for differential duty was unwarranted. ISSUE what is the effect of issuance of registration certificate with retrospective effect. ANALYSIS the registrar of trade marks appears to have issued registration certificate on 30.6.2000 registering the trade mark "meghraj" in favour of the appellants with effect form 30.9.91. it appears that issuance of this certificate was mentioned before the cegat which rejected the rectification application. the object of the notification,therefore,was to help the ssi units and thereby increased industrial production.under para '4' of the said notification,the benefit of exemption was not available for excisable goods bearing brand name or trade name (registered or not) of another person.explanation ix defined the word "brand name" or "trade name". in the case of pahwa chemicals pvt.ltd.v.commissioner of central excise,delhi 2005 (189) elt 257 2005 indlaw sc 799(sc) this court has held that the object of the exemption notification was neither to protect the owners of the trade mark nor the consumers from being misled. these are considerations which are relevant in disputes arising out of infringement/passing of actions under the trade marks act. the object of the notification is to grant benefits only to those industries which otherwise do not have the advantage of a brand name. it is clear that grant of registration certificate under the trade marks act will not automatically provide benefit of exemption to the ssi unit. discontinuation of business in respect of a product does not necessarily amount to abandonment. u/s.28 of the trade marks act,1999,registration gives to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the trade marks act. the registrar,trade marks,can issue registration certificate u/s.28 of the trade marks act with retrospective effect. he effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. this deeming fiction cannot be extended to the excise law.it is confined to the provisions of the trade marks act. in a given case like the present case where there is evidence with the department of the trade mark being owned by m/s.kay aar biscuits (p) ltd.and where there is evidence of the appellants trading on the reputation of m/s.kay aar biscuits (p) ltd.which is not rebutted by the appellants (assessee),issuance of registration certificate with retrospective effect cannot confer the benefit of exemption notification to the assessee. in the case of commissioner of central excise,chandigarh v.bhalla enterprises 2004 (173) elt 225 2004 indlaw sc 996(sc),this court held that the assessee will not be entitled to the benefit of exemption if it uses on goods in question,same/similar brand name with intention of indicating a connection with the goods of the assessee and such other person or uses the name in such manner that it would indicate such connection. it was further held that the burden is on the assessee to satisfy the adjudicating authority that there was no such intention. it is clear that the effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. this deeming fiction cannot be extended to the excise law. it is confined to the provisions of the trade marks act. in a given case like the present case where there is evidence with the department of the trade mark being owned by m/s.kay aar biscuits (p) ltd.and where there is evidence of the appellants trading on the reputation of m/s.kay aar biscuits (p) ltd.which is not rebutted by the appellants (assessee),issuance of registration certificate with retrospective effect cannot confer the benefit of exemption notification to the assessee. issuance of registration certificate with retrospective effect from 30.9.91 will not tantamount to conferment of exemption benefit under the excise law once it is found that the appellants had wrongly used the trade mark of m/s.kay aar biscuits (p) ltd. in gaw kan lye v.saw kyone saing,air 1939 rang 343 (fb), it was held that registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. according to this provision,not only a person should claim to be the proprietor of a trade mark but he should prove that he had used it as such proprietor on his goods. then turning to the label as it stood at the date of the application,two names appeared on the label,one of kipre and co.and the other of the respondent company. if these two names had stood by themselves without any further description of either of them,it could be said that both kipre and co.and the respondent company were jointly the owners of the mark as well as the owners of the goods to which the label was affixed.but,that is not the case. the reasonable inference that could be drawn from this description surely is that the goods were the property of kipre and co.and so also the mark. if the respondent company was really the proprietor of the mark and also the owner of the goods one would expect some such words as "manufactured by kipre and co.for brandon and co.,private ltd." in the absence of any such words,a person buying any of these goods on reading the label would naturally believe that what he was buying was the property of kipre and co.which was selling its goods under the mark "monarch". even distributors and sellers may have marks of their own,but then,there are ways and ways of indicating on the label itself that the mark embodied therein is the mark belonging to such distributor or seller. therefore,on the label as it stood,it could not be said that the respondent company was the proprietor of the mark "monarch" nor could it be said that the mark was used by the respondent company as proprietor thereof. in the case of commissioner of central excise,mumbai v.bigen industries ltd.2006 (197) elt 305 2006 indlaw sc 546, in that matter a show cause notice was issued calling upon the assessee to show cause why the exemption be not denied to the assessee. in para '19' of the show cause notice the authority accepted the existence of a deed of assignment. the facts are entirely different.in the present case,there is no deed or assignment from m/s.kay aar biscuits (p) ltd.to the m/s.meghraj biscuits industries ltd.(appellants herein). as stated above,there is no proof of acquisition on payment or consideration by the appellants to m/s kay aar biscuits (p) ltd. in the present case,there is no evidence of assignment or licence from m/s.kay aar biscuits (p) ltd.to the appellants. in the present case,we are concerned with the retrospective effect of the certificate issued by the registrar of trade marks on 30.6.2000 with effect from 30.9.91.$$$ratio of the decision in the circumstances,the judgment of this court in the case of bigen industries 2006 indlaw sc 546 (supra) has no application.$$$ratio of the decision for the aforestated reasons,we do not find any merit in these civil appeals. before concluding we may point out that we do not wish to express any opinion on the subsequent events which have taken place in this case. STATUTE explanation ix of notification no.1/93-ce dated 28.2.1993- "brand name" or "trade name" shall mean a brand name or trade name,whether registered or not,that is to say a name or a mark,such as symbol,monogram,label,signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating,or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. s.18 sub-section (i) of trademarks act, 1999,it is clear that only a person claiming to be the proprietor of a trade mark used by him or proposed to be used by him could make an application to the registrar for the registration thereof. applying the principle of deemed equivalence we may clarify that if the ssi unit wrongly affixes a trade mark of another person,be it registered or not,or if it uses the trade mark of an ineligible person then such default would not be eliminated by the above principle of deemed equivalence embodied in s.28 of the trade marks act,1999 as that principle is based on a deeming fiction which fiction is confined only to the provisions of the trade marks act.

FACTS appellants were engaged in the manufacture of biscuits classifiable under the central excise tariff. the biscuits were sold under the brand name "meghraj". under show cause notices it was alleged that the appellants herein (assessee) have sold the biscuits under the brand name "meghraj",which was a registered trade mark of kay aar biscuits (p) ltd.,who was using the said trade mark on manufacture of biscuits themselves,and,therefore,the appellants were not eligible to the benefit of ssi notification. the assistant commissioner,ghaziabad,examined the printed wrappers and came to the conclusion vide his orders that the trade name "meghraj" was in the form of a logo printed on the wrapper of the biscuits and,therefore,the appellants were not entitled to the benefit of notification. consequently,the adjudicating authority called upon the appellants to pay differential duty for the period april 1994 to june 1994 amounting to rs.3,74,948 plus short paid duty for the period april 1995 to may 1995 amounting to rs.92,992. aggrieved by the decision of the adjudicating authority,the assessee preferred appeals to the commissioner (a). the said appeals were rejected on the ground that the appellants were using the brand name "meghraj" of another manufacturer m/s.kay aar biscuits (p) ltd.on their products (biscuits) and,therefore,they were not entitled to the benefit of exemption under notification. it was held that the word "meghraj" was printed on all the printed wrappers and,therefore,it was wrong to say that the appellants were not using the brand name "meghraj" on its products. ARGUMENT the appellants herein claim to have started manufacture of biscuits in 1991.the biscuits were sold in wrapper mentioning the name of the appellants,"m/s.meghraj biscuits industries ltd." or "meghraj". the appellants claimed that it has been using the wrapper since beginning and since 1991 the use of the trade name or brand name "meghraj" has never been challenged. m/s.kay aar biscuits (p) ltd.was never the registered owner of the trade mark "meghraj". it was urged that merely because an agreement stood entered into on 22.11.89 between m/s.kay aar biscuits (p) ltd.and m/s.rich food products (p) ltd.,the department had erred in alleging that the trade mark belonged to m/s.kay aar biscuits (p) ltd. it was urged that m/s.kay aar biscuits (p) ltd.had never got the trade mark registered under the trade marks act. a mere agreement between two parties cannot constitute ownership of the trade mark in favour of m/s.kay aar biscuits (p) ltd. it was urged that in any event m/s.kay aar biscuits (p) ltd.had stopped its production in 1993; that the company had become defunct; that the appellants herein had applied to the registrar of trade marks for registration of the mark "meghraj" and vide registration certificate dated 30.6.2000 the registrar has recognized the appellants as owner of the trade mark with effect from 30.9.91. in the circumstances,the appellants submitted that the demand for differential duty was unwarranted. ISSUE what is the effect of issuance of registration certificate with retrospective effect. ANALYSIS the registrar of trade marks appears to have issued registration certificate on 30.6.2000 registering the trade mark "meghraj" in favour of the appellants with effect form 30.9.91. it appears that issuance of this certificate was mentioned before the cegat which rejected the rectification application. the object of the notification,therefore,was to help the ssi units and thereby increased industrial production.under para '4' of the said notification,the benefit of exemption was not available for excisable goods bearing brand name or trade name (registered or not) of another person.explanation ix defined the word "brand name" or "trade name". in the case of pahwa chemicals pvt.ltd.v.commissioner of central excise,delhi 2005 (189) elt 257 2005 indlaw sc 799(sc) this court has held that the object of the exemption notification was neither to protect the owners of the trade mark nor the consumers from being misled. these are considerations which are relevant in disputes arising out of infringement/passing of actions under the trade marks act. the object of the notification is to grant benefits only to those industries which otherwise do not have the advantage of a brand name. it is clear that grant of registration certificate under the trade marks act will not automatically provide benefit of exemption to the ssi unit. discontinuation of business in respect of a product does not necessarily amount to abandonment. the trade marks act,1999 has been enacted to amend and consolidate the law relating to trade marks,to provide for registration and better protection of trade marks and for prevention of the use of fraudulent marks. u/s.28 of the trade marks act,1999,registration gives to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the trade marks act. the registrar,trade marks,can issue registration certificate u/s.28 of the trade marks act with retrospective effect. he effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. this deeming fiction cannot be extended to the excise law.it is confined to the provisions of the trade marks act. in a given case like the present case where there is evidence with the department of the trade mark being owned by m/s.kay aar biscuits (p) ltd.and where there is evidence of the appellants trading on the reputation of m/s.kay aar biscuits (p) ltd.which is not rebutted by the appellants (assessee),issuance of registration certificate with retrospective effect cannot confer the benefit of exemption notification to the assessee. in the case of commissioner of central excise,chandigarh v.bhalla enterprises 2004 (173) elt 225 2004 indlaw sc 996(sc),this court held that the assessee will not be entitled to the benefit of exemption if it uses on goods in question,same/similar brand name with intention of indicating a connection with the goods of the assessee and such other person or uses the name in such manner that it would indicate such connection. it was further held that the burden is on the assessee to satisfy the adjudicating authority that there was no such intention. it is clear that the effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark. this deeming fiction cannot be extended to the excise law. it is confined to the provisions of the trade marks act. in a given case like the present case where there is evidence with the department of the trade mark being owned by m/s.kay aar biscuits (p) ltd.and where there is evidence of the appellants trading on the reputation of m/s.kay aar biscuits (p) ltd.which is not rebutted by the appellants (assessee),issuance of registration certificate with retrospective effect cannot confer the benefit of exemption notification to the assessee. issuance of registration certificate with retrospective effect from 30.9.91 will not tantamount to conferment of exemption benefit under the excise law once it is found that the appellants had wrongly used the trade mark of m/s.kay aar biscuits (p) ltd. in gaw kan lye v.saw kyone saing,air 1939 rang 343 (fb), it was held that registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. according to this provision,not only a person should claim to be the proprietor of a trade mark but he should prove that he had used it as such proprietor on his goods. then turning to the label as it stood at the date of the application,two names appeared on the label,one of kipre and co.and the other of the respondent company. if these two names had stood by themselves without any further description of either of them,it could be said that both kipre and co.and the respondent company were jointly the owners of the mark as well as the owners of the goods to which the label was affixed.but,that is not the case. the respondent company is described as the sole distributors on the label. the reasonable inference that could be drawn from this description surely is that the goods were the property of kipre and co.and so also the mark. if the respondent company was really the proprietor of the mark and also the owner of the goods one would expect some such words as "manufactured by kipre and co.for brandon and co.,private ltd." in the absence of any such words,a person buying any of these goods on reading the label would naturally believe that what he was buying was the property of kipre and co.which was selling its goods under the mark "monarch". even distributors and sellers may have marks of their own,but then,there are ways and ways of indicating on the label itself that the mark embodied therein is the mark belonging to such distributor or seller. obviously,therefore,on the label as it stood,it could not be said that the respondent company was the proprietor of the mark "monarch" nor could it be said that the mark was used by the respondent company as proprietor thereof. in the case of commissioner of central excise,mumbai v.bigen industries ltd.2006 (197) elt 305 2006 indlaw sc 546, in that matter a show cause notice was issued calling upon the assessee to show cause why the exemption be not denied to the assessee. in para '19' of the show cause notice the authority accepted the existence of a deed of assignment. the facts are entirely different.in the present case,there is no deed or assignment from m/s.kay aar biscuits (p) ltd.to the m/s.meghraj biscuits industries ltd.(appellants herein). as stated above,there is no proof of acquisition on payment or consideration by the appellants to m/s kay aar biscuits (p) ltd. in the present case,there is no evidence of assignment or licence from m/s.kay aar biscuits (p) ltd.to the appellants. in the present case,we are concerned with the retrospective effect of the certificate issued by the registrar of trade marks on 30.6.2000 with effect from 30.9.91.$$$ratio of the decision in the circumstances,the judgment of this court in the case of bigen industries 2006 indlaw sc 546 (supra) has no application.$$$ratio of the decision for the aforestated reasons,we do not find any merit in these civil appeals. before concluding we may point out that we do not wish to express any opinion on the subsequent events which have taken place in this case. STATUTE explanation ix of notification no.1/93-ce dated 28.2.1993- "brand name" or "trade name" shall mean a brand name or trade name,whether registered or not,that is to say a name or a mark,such as symbol,monogram,label,signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating,or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. notification no.1/93-ce dated 28.2.1993 was subsequently amended by notification no.59/94 dated 1.3.94.para '7' of notification no.1/93-ce as amended read as under: "para-7 the exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person,who is not eligible for the grant of exemption under this notification. s.18 sub-section (i) of trademarks act, 1999,it is clear that only a person claiming to be the proprietor of a trade mark used by him or proposed to be used by him could make an application to the registrar for the registration thereof. applying the principle of deemed equivalence we may clarify that if the ssi unit wrongly affixes a trade mark of another person,be it registered or not,or if it uses the trade mark of an ineligible person then such default would not be eliminated by the above principle of deemed equivalence embodied in s.28 of the trade marks act,1999 as that principle is based on a deeming fiction which fiction is confined only to the provisions of the trade marks act.

this appeal by special leave has been preferred by tata consultancy engineers against an award dated 20th december1978 of the industrial tribunal maharashtra bombay revising the wage scales of certain categories of employees and granting various other benefits. tata consultant engineers at its inception was a partnership firm but subsequently the partnership was dissolved and in 1974 the undertaking became one of the divisions of tata sons limited. it functions as a consulting organisation and a service industry and does not manufacture any product or carry on trade. its work force consists of engineers and supervisors and different categories of workmen. out of 665 employees at bombay the draftsmen and the administrative staff number 306 these workmen are members of the tata consultant employees union. they served a charter of demands in july1974on the appellant and as their demands were not accepted and conciliation proceedings proved fruitless the state government made a reference of the dispute under s 101 dindustrial tribunal maharashtra for adjudication. the reference was numbered i t no 292 of 1975. the union filed a statement before the tribunal claiming an upward revision of the wage scales and dearness allowance and an increase from fifteen years to twenty years in the span for earning annual increments. it was urged that the efficiency bar as a feature of the wage scales should be removed. the dearness allowance it was claimed should be granted on a slab system. the claim of the union was resisted by the appellant who maintained that the existing wage scales were fair and reasonable on a region cum industry basis and that it would not be possible for the appellant to bear the additional financial burden if the demands of the union were accepted. reference was made to the political uncertainty in iran which had placed an appreciable part of the appellant 's business in jeopardy and to various other factors peculiar to an engineering consultancy business beyond the appellant 's control. there was fierce competition also it was asserted from other similar organisations. the appellant had introduced various pay scales in 1973 and some time later they were revised. there was no separate dearness allowance until january1977 when it was introduced for the first time. house rent allowance was also paid. dearness allowance became payable at 10 of the basic wage subject to a minimum of rs 50 and house rent allowance at 30 of the basic salary. nothing those facts the tribunal observed that compared with the increased paying capacity of the appellant an inference drawn from the prosperity enjoyed by the appellant over the years there was definite need for revising the wage scales. it was pointed out that the dearness allowance and house rent allowance granted by the appellant made little impact in neutralising the cost of living. the need for revising the wage scales was not disputed by the appellant. in proceeding to revise the wage structure the tribunal took into account the two principles involved in the process the financial capacity of the industry to bear the burden of an increased wage bill and the prevailing wage structure on an industry cum region basis. wage scale statements were filed by the parties before the tribunal pertaining to several engineering consultancy organisations but. in the absence of pertinent information concerning the strength of their labour force the extent of their business the financial position for some years the capital invested the precise nature of the business the position regarding reserves dividends declared and future prospects of the company the tribunal found that it was unable to rely on them as comparable concerns. holding it impossible in the circumstances to apply the principle of industry cum region basis the tribunal turned to a consideration of the financial capacity of the company to bear an additional burden in this connection it proceeded on the footing that the appellant was a separate and independent division of tata sons limited and had no functional integrality with the other divisions. having regard to the net profits earned by the appellant from 1968 to 1977 it found that the acceptance of the demands of the union would result in an increased burden of rs 7 crores a burden which would dry up the appellant 's resources and would be impossible for it to bear. the union modified its demands but even the modified terms according to the tribunal appeared to be on the high side inasmuch as the resulting total burden of rs 1 70 crores was much higher than the average profits could sustain. the particular character of the appellant that it was a service industry and not a manufacturing concern was taken into account and it was observed that unlike a manufacturing business there was little scope for diversification in the case of an engineering consultancy. nonetheless the tribunal observed there was every reason to expect that the appellant would be able to earn sound profits in the future and the instability in its business activities occasioned by the turbulent political situation in iran would be it was expected compensated by contracts secured in different developing countries. for the purpose of determining the financial capacity of the appellant the tribunal followed unichem laboratories v their workmen 1972 indlaw sc 181 where it was held that the gross profits should be computed without making deductions on account of taxation development rebate and depreciation. it decided also that there was no ground for deducting the notional value of gratuity. revising the figures on that basis it computed the annual gross profits for the years 1968 to 1977 and determined the annual average at rs 26 69 lakhs. the tribunal took note of the elaborate scales of wages already existing in the wage structure of the appellant and decided to modify the existing structure of the scales with flat increases in each category. it also observed that the category of draughtsmen needed a special increase. but it rejected the demand of the union for dearness allowance on the basis of a slab system because that would have imposed an unacceptable burden on the appellant 's financial capacity and there was no reason why the existing scheme of dearness allowance should be disturbed when a substantial increase was being made in the level of the basic wage. taking into account the circumstance that besides the staff of 306 workmen represented by the union there were several other employees who would also have to be paid the tribunal considered it fair in paragraph 23 of the award to give a flat increase of rs 150 in the category of draughtsmen and rs 100 in the case of other categories. it rejected the demand of the union for abolishing the efficiency bar but the span of 15 years for earning increment was expanded in some grades to 20 years and some adjustments were also made in specific grades. the tribunal also noted that after the salaries of the employees had been fixed in the respective scales senior employees would have to be given some more increments in the new scales according to their completed years of service. taking all these factors into consideration it made an award dated 20th december1978 prescribing the following revision in the existing scales of wages. the tribunal maintained the existing schemes of dearness allowance and house rent allowance and observed that in view of the revised basic wages there would be a resultant increase in the dearness allowance and house rent allowance. the revised wage scales the tribunal directed should take effect retrospectively from 1st january1976 it also laid down the principle enabling the actual fitment of the workmen in their respective wage scales as on that date and also provided for the number of increments to which they would be entitled having regard to the period of completed service. two days after the award was made an application was made by the union stating in the said award your honour has observed at the end of para 22in view of the increase that is being allowed in the basic pay i do not propose to revise the existing scheme of dearness allowance. further it appears that the tribunal intended to grant the increase of rs 150 to each draughtsman and rs 100 to all other workmen in their basic pay. however this is not clearly mentioned anywhere in the award due to accidental slip or omission. the union prayed that the position may be clarified and the award corrected accordingly. on the same date the tribunal disposed of the application by the following order there can be no doubt that a flat increase of rs 150 to each of the employees in the category of draftsmen and of rs 100 to each employee in the other categories has been granted under my award. the same has been made clear in paragraph. no 23but it appears that the words to each employee after the figure rs 150 were omitted. similarly the same words to each employee after the figure 100 were omitted. when the award is sent for publication a necessary corrigendum be made in the award and the aforesaid words after the figures rs 150 and rs 100 be added. it may be mentioned that only from that point of view viz to grant flat increase of rs 150 and of rs 100 to the employees in the category of draftsmen and the other categories respectively that a burden statement was called for from the company and the same was submitted vide exhibit c 51 the fitment has also to be done only after the flat increase is added to the present basic salary of each employee. i do not think that any problem would arise for interpretation of the award. since the award has been already signed i do not think anything further can be added to this award. sd k n wani industrial tribunal. in this appeal the learned counsel for the appellant had covered a wide field but in the end he states that the appellant is aggrieved by two matters only. one is the retrospectivity attached to the revised wage scales and the other is the flat increase given to each employee of rs 150 in the category of draughtsmen and rs 100 in other categories resulting from the order dated 22nd december1978. the workmen have filed an appeal by special leave civil appeal no 2300 of 1979in which they have challenged the rejection by the tribunal of their claim in respect of dearness allowance which they contend should be pegged to the cost of living index and should not be a fixed amount. considering the appeal of tata consulting engineers first the contention of learned counsel for the appellant is that having regard to the financial capacity of the appellant the tribunal erred in making the wage scales retrospective and in any event in ranging the retrospectivity back to 1st january1976. we have been taken through some of the material on the record in the attempt to support the contention but after giving careful thought to the matter i think there is ample justification for what the tribunal did. it must be remembered that although the wage scales were introduced as long ago as 1973 they were maintained at that level except for a slight revision some time thereafter. no dearness allowance was paid until the beginning of 1977 and the house rent allowance also was introduced about that time. the cost of living had gone on increasing from 1972 onwards and as the tribunal has found the dearness allowance and house rent allowance made no appreciable impact in neutralising the increasing cost. during all these years the appellant had continued to enjoy increasing profits nonetheless the emoluments received by the workmen did not receive the impress of the appellant 's growing prosperity. the charter of demands was presented by the union in july1974 and when conciliation proceedings failed the state government made the reference to the industrial tribunal in 1975 the tribunal has referred to various considerations which prevailed with it in giving retrospectivity to the revised pay scales. they are considerations which can not be ignored. accordingly the contention raised on behalf of the appellant against retrospectivity of the wage scales must be rejected. the challenge embodied in the second contention against the amendment of the award is more serious. it is urged that the amendment results in the inclusion of a flat increase of rs 150 to each workman in the case of draughtsman and rs 100 to each workman in the case of other categories a result wholly unwarranted it is said by the intent of the original award and therefore falling beyond the jurisdiction of the tribunal. in making the application of 22nd. december1978the union invoked the jurisdiction of the. tribunal under rule 31 of the industrial disputes bombay rules1957 rule 31 provides the labour court tribunal or arbitrator may correct any clerical mistake or error arising from an accidental slip or omission in any award it or he issues. the jurisdiction given to the tribunal by rule 31 is closely circumscribed. it is only a clerical mistake or error which can be corrected and the clerical mistake or error must arise from an accidental slip or omission in the award. an accidental slip or omission implies that something was intended and contrary to that intention what should not have been included has been included or what should have been included has been omitted. it must be a mistake or error amenable to clerical correction only. it must not be a mistake or error which calls for rectification by modification of the conscious adjudication on the issues involved. is the instant case one where the amendment made by the tribunal in the original award can be said to correct a mere clerical mistake or error arising from an accidental slip or omission. to answer the question it is necessary to examine the basis of the award and the intent which flows from that basis. the terms of reference in the state government 's order required the tribunal to revise the scales of pay and dearness allowance and there was no mention of giving any ad hoc increase in the basic pay of individual workman. it would do well to recall that the claim of the union filed before the tribunal also centered on the need to revise the wage scales. that was the main issue between the parties. it is to the task of revising the pay scales that the tribunal addressed itself and throughout the material part of the award it is that task which held its focussed attention. the financial capacity of the appellant and the related study of its annual profits from 1968 to 1977were examined from that view point. the sufficiency of the existing pay scales was considered in detail and regard was had to their original structure and the accretions made subsequently by way of dearness allowance and house rent allowance. for the purpose of restructuring the pay scales the tribunal ruled on the paying capacity of the appellant both with reference to the profits of the preceding year as well as the prospects of the future. the financial capacity as the tribunal observed constituted one of the principles which are required to be followed in the fixation of the wage structure. a clear statement of its intention is found in paragraph 22 of the award where the tribunal stated i only propose to modify the existing structures of the scales with flat increases in each category. no ad hoc increase to the pay of each individual workman was intended. and that is confirmed by what was stated in paragraph 23 of the award considering this outgoing the flat increase of rs 150 in the category of draughtsman and rs 100 in the case of the other categories would be fair. it will be noted that the pay scales of different categories were being restructured and the flat increase envisaged there related to an increase in the general pay scales of different categories. individual workmen were not present to the mind of the tribunal. that the increase was pertinent to the general pay scales in the revised wage structure is patently clear from a comparison of the existing pay scales and the revised pay scales. the comparative table of existing pay scales and the revised pay scales has been reproduced earlier. the revised pay scales of all categories except the category of draughtsmen shows an increase of rs 100 in the initial pay fixed in each scale the increase in the case of the category of draughtsmen being rs 150 there was only one increase contemplated in the award in paragraph 23 of award and it is more than plain that the increase was the one incorporated in the revised pay scales pertaining to different categories. no second flat increase was envisaged at all. the amendment made by the tribunal has the effect of providing a second increase this time to each individual workmen. if as the tribunal has stated in the amendment order the increase in paragraph 23 was intended to apply to each individual workmen there is nothing in the body of the award to form the foundation on which the actual figures in the restructured pay scales can be made to rest. there will be no explanation why the initial start of the revised pay scales has been increased by rs 150 in the case of the category of draughtsmen and rs 100 in the case of other categories. considering the fitment of the workman in the revised scales it was stated in the award that a workman found drawing a salary less than the beginning of the grade would be stepped up to the beginning of the grade and if his pay fell between two steps in the reclassified pay scales the basic pay was to be fixed at the step higher in the revised scale. conspicuous by its absence is any reference to a flat increase in the pay of an individual workmen. even when considering the range of permissible retrospectivity the tribunal stated in the award in view of the revision of the wage scales there would be consequent increase in the dearness allowance and the house rent allowance. and the clinching circumstances of all is that the award was made on the basis that the overall financial load according to paragraph 33 of the award would be to the tune of about rs 5 lakhs. it was that figure which the tribunal had in mind against the backdrop of the gross annual figures when it made the revised pay scales retrospective from 1st. january1976 this liability taken with the liability accruing on the need to increase the salaries of the other staff determined the tribunal 's deliberations in regard to the several features of the award including the grant of increments related to completed periods of service the expansion of the span from 15 years to 20 years for earning increments and other benefits. it can not be the case of the union that the figure of rs 5 lakhs mentioned in paragraph 33 of the award represented the result of adding a flat increase to the pay of each workman in addition to the benefits conferred by the revised pay scales and other awarded reliefs. in its order of 22nd. december1978the tribunal has referred to the statement exhibit c 51 filed by the appellant when called upon to indicate the increased financial burden apprehended by it. the tribunal has relied on this statement as evidence showing that the appellant knew that a flat increase of rs 150 and rs 100 was intended to each of the employees in the category of draughtsmen and the other categories. in so construing the statement exhibit c 51the tribunal has grievously erred. it seems from a perusal of the document exhibit c 51that it is a statement giving trial figures of the increased financial load on different bases. on the basis that a sum of rs 150 per month was added to the pay of each draughtsman and a sum of rs 100 was added to the pay of every other workman who belonged to the union staff the financial load would increase to rs 922032 likewise if a flat increase of rs 100 was given to individual workmen of all categories including draughtsmen the increased financial load would total rs 764256 the statement then goes on to indicate that if a flat increase of rs 75 per month were given to individual workmen of all categories the total increase would be rs 578220 again if the flat increase is rs 65 per month to the individual workmen of all categories the additional load would total rs 497772 finally on the basis that the individual draughtsman would be given an increase of rs 75 per month and the individual workmen of other categories rs 50 per month the additional load was calculated at rs 463092 it will be noted that the statement exhibit c 51was prepared on the basis of the employees strength as in december1971 a similar statement was prepared on the basis of the employees strength as in september1978 these statements can not be regarded as evidence that the appellant was cognizant of the intention of the tribunal to provide a flat increase to the pay of each workman. the statement afforded an indication merely of what the additional financial load would be if a flat increase was given to the individual workman on the alternative basis set forth therein. none of the alternatives was actually adopted by the tribunal because when the award was made the tribunal proceeded instead to restructure the wage scales by the addition of rs 150 in the case of the category of draughtsmen and rs 100 in the case of other categories to the initial pay in the wage scales pertaining to those categories. the addition was integrated as a feature of the wage scales it was not regarded as an addition to the pay of each individual workman. it seems that the tribunal was betrayed by a curious confusion in accepting the plea of the union that a flat increase to the pay of each workman was intended in the original wage and consequently it fell into the error of amending the award. the evidence contained in the award throughout provides incontrovertible proof that this flat increase was never originally intended in the award. the amendment has resulted in the tribunal making as it were a supplementary award whereby a further relief is being granted beyond that granted in the original award. the original award was completed and signed by the tribunal and it can not be reopened now except for the limited purpose of rule 31 in travelling outside and beyond the terms of the original award the tribunal has committed a jurisdictional error. our attention has been drawn to what purports to be an endorsement by counsel for the appellant on the application dated 22nd december1978 filed by the union before the tribunal to the effect that the appellant would submit to whatever the tribunal decided and it is urged that the appellant is bound by the order made on the application. it is an accepted principle that consent by a party can not confer jurisdiction on a court. what is without jurisdiction will remain so. in the circumstances the order of 22nd december1978 is invalid so far as it amends paragraph 23 of the original award. the corrigendum amending the award in consequence is liable to be quashed. the second contention of the appellant is entitled to succeed. i shall now consider civil appeal no 2300 of 1979 filed by the workmen. the only contention of the workmen is that the tribunal should have fixed the dearness allowance in communion with the cost of living index. it is wrong in principle it is said to provide a fixed dearness allowance. reliance was placed on the hindustan times ltd new delhi v their workmen 1964 1 scr 234 1962 indlaw sc 436247 where it was observed by this court that dearness allowance should not remain fixed at any figure but should be on a sliding scale in order to neutralise a portion of the increase in the cost of living. reference was also made to bengal chemical pharmaceutical works limited v its workmen. 2 scr 113 1968 indlaw sc 183 now it is not a universal rule that the dearness allowance should in all cases be correlated with the cost of living index. the tribunal in the present case considered the matter and found it sufficient and in accord with justice that the wage scales should be restructured with suitable increments provided therein. it noted that dearness allowance was being granted by the appellant at 10 of the salary subject to a minimum of rs 50 and house rent allowance at 30 of the basic salary. having regard to the not inconsiderable improvement in the level of the basic wage it observed that there would be a consequent increase in the dearness allowance and house rent allowance. in view of the increase so secured the tribunal rejected the suggestion that a slab system should be introduced in the dearness allowance or that there should be any other modification of the principle on which dearness allowance was being presently granted. it declared that the cumulative effect of an improved wage structure together with dearness allowance operating on a slab system would throw an impossible burden of about rs 1 crore on the financial capacity of the appellant. it was open to the tribunal to adopt the position which it did. if the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been made will have to be reconsidered. the award is a composite document in which the several elements of increased wage scales larger increments longer span of 20 years for earning increments dearness allowance at 10 of the basic wage besides several other benefits have been integrated into a balanced arrangement in keeping with what the tribunal has found to be the financial capacity of the appellant. it is not possible to maintain one part of the award and supersede another. accordingly the appeal filed by the workmen must fail. in the result civil appeal no 2299 of 1979 is allowed in part insofar that the order dated 22nd december1978 of the industrial tribunal maharashtra bombay is quashed to the extent that it modifies the original award dated 20th december1978and the corrigendum made consequent thereto is also quashed. civil appeal no 2300 of 1979 is dismissed. there is no order as to costs. chinnappa reddy j we have had the advantage of perusing the judgment prepared by our learned brother pathak j we agree with him that civil appeal no 2300 of 1979 should be dismissed. we also agree with him that civil appeal no 2299 of 1979 should also be dismissed in so far as it relates to the award dated december 201978 however we do not agree with our learned brother that civil appeal no 2299 of 1979 should be allowed in so far as it relates to the order dated december 221978 of the industrial tribunal which purports to correct the award dated december 201978 in our opinion civil appeal no 2299 of 1979 should be dismissed in its entirety. we do not propose to give our reasons to the extent we are in agreement with pathak j and we propose to state our reasons for the disagreement only. it is needless to recapitulate all the basic facts which have been set out in the judgment of pathak j the award of the industrial tribunal was made on december 201978 on december 221978 that is to say two days after the award was made and when everything must have been fresh to the minds of the tribunal the respective parties and their advocates the employees union made an application under rule 31 of the industrial disputes bombay rules1957 seeking a correction of an error which it was claimed had crept into the award. the application was as follows in the above reference your honour was pleased to pass an award on 20th december1978. in the said award your honour has observed at the end of para 22in view of the increase that is being allowed in the basic pay i do not propose to revise the existing scheme of dearness allowance. further it appears that the tribunal intended to grant the increase of rs 150 to each draughtsman and rs 100 to all other workmen in their basic pay. the union therefore prays the honourable tribunal to clarify the position and correct the award accordingly. on this application the advocate for the employer company made the following endorsement submitted to whatever this honourable tribunal desires to do. thereafter the tribunal made an order on the same day in the following terms there can be no doubt that a flat increase of rs 150 to each of the employees in the category of draftsmen and of rs 100 to each employee in the other categories has been granted under my award. this order was made in the presence of shri manak gagrat advocate for the company and shri n p mehta advocate for the workmen. the endorsement made on the application by the advocate for the company does not indicate that the company had any objection to the award being corrected as sought by the employees union. on the other hand the endorsement reads as if there was tacit agreement on the part of the company to the correction sought by the union. the order dated december 221978 of the tribunal also does not reveal that there was any opposition by the company to the application for correcting the award. even so we propose to examine whether the correction sought by the employees union was within the bounds of the authority of the tribunal or whether it was in effect a fresh award. the primary and basic question considered by the industrial tribunal in making the award dated december 201978 was the question of revision of the wage scales. implicit and intrinsically connected with the question of revision of the wage scales were the questions of fitment of employees into the wage scales and flat or ad hoc increase of salaries of workmen wherever considered necessary. it can not possibly be doubted that an industrial tribunal deciding upon the wage scales of the employees of an establishment would have full liberty to propose ad hoc increase of salaries as part of the revision of wages. nor can it be doubted that fitment into the revised pay scales is certainly a part of the revision of pay scales. this in our opinion is elementary and fundamental to the jurisdiction of the industrial tribunal in revising wage scales. in the present case the industrial tribunal on a consideration of the material placed before it came to the conclusion that the company was in an undoubted position to bear the additional financial burden. at the end of paragraph 15 of the award the tribunal stated but there can be no doubt that the company can very well bear the additional burden. the question is what should be the extent of such burden. at the end of paragraph 18 of the award the tribunal said a mere reading of exhibit u 15 will immediately dispel the misgivings about the future of the present company. for some years to come this is likely to be one of the few consulting engineers who will be securing major contracts. again in paragraph 19 it was said i have no doubt that the present company would be able to bear the additional burden for the years to come. this is further borne out from the trading results of the company for the year 1968 69 to 1977 the profits have increased all along. the copy of the letter dated july 231973alongwith. the annexures from the company to the director general posts telegraphs delhi ex. c 27 indicates the important projects the company was handling in india and abroad and the amount of foreign exchange earned and repatriated. i will therefore proceed on the ground that the present company can bear the additional financial burden. finally at the end of paragraph 21. the tribunal said in view of this position the company can easily bear some burden that might fall as a result of the upward revision of the wage scales. the question is to what extent the relief should be given to the employees. after expressing himself in categoric terms about the capacity of the company to bear the additional financial burden the tribunal went on to say i only propose to modify the existing structure of the scales with flat increases in each category. the tribunal then considered the question whether draftsmen should get a higher flat increase and the question whether the existing scheme of dearness allowance should be revised. the tribunal then observed the flat increase of rs 150 in the category of draftsmen and rs 100 in the case of the other categories would be fair. thereafter various other matters were considered and finally the tribunal revised the wage scales in the manner already mentioned by my brother pathak j the question of fitment was then considered in the following manner fitment if as on 1st january1976an employee is drawing a salary less than the beginning of the respective grade he should be first stepped up to the beginning of the grade. if the pay of an employee does not coincide with any step in the revised pay scale and falls between two steps in the reclassified pay scales the basic pay of that employee shall be fixed at the step higher in the revised scale. after fixing the salary of the employees in the scales as above the employees should be given increments in the new scales as noted below i employees who have completed 5 years or more as on 1st january19763 increments. ii employees who have completed 4 years of service as on 1st january19762 increments. all other employees with more than one year 's service shall be given one increment. now if without any flat or ad hoc increase of salary the workmen were to be fitted into the revised scales of pay it would obviously result in serious anomalous situations. in the case of several senior employees the revised scale would yield but a very small and almost a token increase in the size of the pay packet whereas the junior employees would get a large benefit. while workmen raising industrial disputes for revision of wage scales are certainly minded about their future prospects in the matter of wages they surely would be more concerned with the immediate benefits according to them. that was why the industrial tribunal thought that an all round flat increase of rs 150 in the case of draftsmen and rs 100 in the case of other workmen was called for. it was clearly so intended by the tribunal as is evident from the reference to flat increase of rs 150 in the category of draftsmen and rs 100 in the case of the other categories. since there was to be a flat increase of rs 150 and rs 100 in the case of draftsmen and other workmen respectively the revised wage scale had necessarily to commence with figures rs 150 and rs 100 above the existing wage scales. immediately after the award was pronounced while the iron was still hot as it were the employees apparently realised that the employer might take advantage of the circumstance that it was not clearly mentioned in the award that all the employees were to get additional pay of rs 150 and rs 100 respectively and might contend that the tribunal had only revised the wage scales by increasing the salary on entry into the service and restructuring the scale of pay and never granted any ad hoc increase of salary to all employees. therefore they filed an application before the tribunal for correcting the award so as to bring out what was intended. as it has now turned out what the employees apparently suspected the employer might contend is precisely what the employer is not contending though the employer did not choose to so contend before the industrial tribunal itself when the employees filed the application for rectification. the application before the tribunal was filed under rule 31 of the bombay industrial disputes rules 1957which is as follows. a board court labour court tribunal or arbitrator may at any time suo moto or on an application made by any of the parties concerned may correct any clerical mistake or error arising from an accidental slip or omission in any proceedings report award or as the case may be decision. the omission of the words to each employee first after the figure rs 150 and again after the figure rs 100 was clearly an accidental slip or omission which the tribunal was entitled to correct. we are unable to see how it can be held to be otherwise. we are not impressed with the submission of the learned counsel for the company that the corrigendum was in effect a fresh award. we therefore see no ground for quashing the order dated december 221978 of the tribunal. the result of the foregoing discussion is that civil appeal no 2299 of 1979 has to be dismissed in its entirety. we have already indicated that we agree with our brother pathak j that the appeal civil appeal no 2300 of 1979 filed by the workmen should also be dismissed. while we find lot of force in the submission of shri v m tarkunde learned counsel for the workmen that dearness allowance linked to cost of living index is ordinarily the best and the most scientific method of computing dearness allowance it can not always be said that an illegality warranting interference under article 136 is committed if some other method is adopted. the tribunal has given satisfactory reason for adopting a different mode and we are not disposed to interfere with the award of the tribunal. in the result both the appeals are dismissed without any order as to costs. the order of the court was as follows. in view of the opinion of the majority both the appeals are dismissed and there is no order as to costs.

FACTS tata consultant engineers,was a partnership firm but subsequently the partnership was dissolved and in 1974 the undertaking became one of the divisions of tata sons limited. it functions as a consulting organisation and a service industry,and does not manufacture any product or carry on trade.its work force consists of engineers and supervisors and different categories of workmen. the tata consultant employees union served a charter of demands in july,1974,on the appellant,and as their demands were not accepted and conciliation proceedings proved fruitless,the state government made a reference of the dispute under s.10(1)(d),industrial tribunal,maharashtra for adjudication. the union filed a statement before the tribunal claiming an upward revision of the wage scales and dearness allowance and an increase from fifteen years to twenty years in the span for earning annual increments. it was urged that the efficiency bar,as a feature of the wage scales,should be removed. the dearness allowance,it was claimed,should be granted on a slab system. the claim of the union was resisted by the appellant,who maintained that the existing wage scales were fair and reasonable on a region-cum-industry basis and that it would not be possible for the appellant to bear the additional financial burden if the demands of the union were accepted. the appellant had introduced various pay scales in 1973 and some time later they were revised. there was no separate dearness allowance until january,1977 when it was introduced for the first time. house rent allowance was also paid. dearness allowance became payable at 10% of the basic wage subject to a minimum of rs.50/ and house rent allowance at 30% of the basic salary. the tribunal observed that compared with the increased paying capacity of the appellant,an inference drawn from the prosperity enjoyed by the appellant over the years,there was definite need for revising the wage scales. it also laid down the principle enabling the actual fitment of the workmen in their respective wage scales as on that date and also provided for the number of increments to which they would be entitled having regard to the period of completed service. two days after the award was made,an application was made by the union stating: "in the said award,your honour has observed,at the end of para 22,in view of the increase that is being allowed in the basic pay,i do not propose to revise the existing scheme of dearness allowance." the workmen have filed an appeal by special leave, in which they have challenged the rejection by the tribunal of their claim in respect of dearness allowance which,they contend,should be pegged to the cost of living index and should not be a fixed amount. ARGUMENT considering the appeal of tata consulting engineers first,the contention of learned counsel for the appellant is that having regard to the financial capacity of the appellant the tribunal erred in making the wage scales retrospective and,in any event,in ranging the retrospectivity back to 1st january,1976. the learned counsel for the appellant had covered a wide field,but in the end he states that the appellant is aggrieved by two matters only. one is the retrospectivity attached to the revised wage scales,and the other is the flat increase given to each employee of rs.150/-in the category of draughtsmen and rs.100/-in other categories resulting from the order dated 22nd december,1978. it is urged that the amendment results in the inclusion of a flat increase of rs.150/-to each workman in the case of draughtsman and rs.100/-to each workman in the case of other categories,a result wholly unwarranted,it is said,by the intent of the original award and,therefore,falling beyond the jurisdiction of the tribunal. the only contention of the workmen is that the tribunal should have fixed the dearness allowance in communion with the cost of living index. ISSUE the primary and basic question considered by the industrial tribunal,in making the award dated december 20,1978 was the question of revision of the wage-scales. implicit and intrinsically connected with the question of revision of the wage-scales were the questions of fitment of employees into the wage-scales and flat or ad-hoc increase of salaries of workmen wherever considered necessary. ANALYSIS it must be remembered that although the wage scales were introduced as long ago as 1973 they were maintained at that level except for a slight revision some time thereafter. no dearness allowance was paid until the beginning of 1977 and the house rent allowance also was introduced about that time. the cost of living had gone on increasing from 1972 onwards and,as the tribunal has found,the dearness allowance and house rent allowance made no appreciable impact in neutralising the increasing cost. during all these years,the appellant had continued to enjoy increasing profits; nonetheless the emoluments received by the workmen did not receive the impress of the appellant's growing prosperity. the charter of demands was presented by the union in july,1974 and when conciliation proceedings failed the state government made the reference to the industrial tribunal in 1975. they are considerations which cannot be ignored. accordingly,the contention raised on behalf of the appellant against retrospectivity of the wage scales must be rejected. the financial capacity of the appellant,and the related study of its annual profits from 1968 to 1977,were examined from that view point. the sufficiency of the existing pay scales was considered in detail,and regard was had to their original structure and the accretions made subsequently by way of dearness allowance and house rent allowance. for the purpose of restructuring the pay scales the tribunal ruled on the paying capacity of the appellant,both with reference to the profits of the preceding year as well as the prospects of the future. the financial capacity,as the tribunal observed,constituted one of "the principles which are required to be followed in the fixation of the wage structure." no ad hoc increase to the pay of each individual workman was intended. the jurisdiction given to the tribunal by rule 31 is closely circumscribed. it is only a clerical mistake or error which can be corrected,and the clerical mistake or error must arise from an accidental slip or omission in the award. an accidental slip or omission implies that something was intended and contrary to that intention what should not have been included has been included or what should have been included has been omitted. it must be a mistake or error amenable to clerical correction only. it must not be a mistake or error which calls for rectification by modification of the conscious adjudication on the issues involved. the omission of the words to each employee first after the figure rs.150/-and again after the figure rs.100/-was clearly an accidental slip or omission which the tribunal was entitled to correct. it will be noted that the pay scales of different categories were being restructured,and the flat increase envisaged there related to an increase in the general pay scales of different categories. individual workmen were not present to the mind of the tribunal. that the increase was pertinent to the general pay scales in the revised wage structure is patently clear from a comparison of the existing pay scales and the revised pay scales. the comparative table of existing pay scales and the revised pay scales has been reproduced earlier. the revised pay scales of all categories,except the category of draughtsmen,shows an increase of rs.100/-in the initial pay fixed in each scale,the increase in the case of the category of draughtsmen being rs.150/. the amendment made by the tribunal has the effect of providing a second increase,this time to each individual workmen. if,as the tribunal has stated in the amendment order,the increase in paragraph 23 was intended to apply to each individual workmen,there is nothing in the body of the award to form the foundation on which the actual figures in the restructured pay scales can be made to rest. there will be no explanation why the initial start of the revised pay scales has been increased by rs.150/-in the case of the category of draughtsmen and rs.100/-in the case of other categories. considering the fitment of the workman in the revised scales,it was stated in the award that a workman found drawing a salary less than the beginning of the grade would be stepped up to the beginning of the grade and if his pay fell between two steps in the reclassified pay scales the basic pay was to be fixed at the step higher in the revised scale. reliance was placed on the hindustan times ltd.,new delhi v.their workmen [1964] 1 scr 234 1962 indlaw sc 436,247 where it was observed by this court that dearness allowance should not remain fixed at any figure but should be on a sliding scale in order to neutralise a portion of the increase in the cost of living. now,it is not a universal rule that the dearness allowance should in all cases be correlated with the cost of living index. it was open to the tribunal to adopt the position which it did. if the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been made will have to be reconsidered. the award is a composite document in which the several elements of increased wage scales,larger increments,longer span of 20 years for earning increments,dearness allowance at 10% of the basic wage,besides several other benefits,have been integrated into a balanced arrangement in keeping with what the tribunal has found to be the financial capacity of the appellant. it is not possible to maintain one part of the award and supersede another. conspicuous by its absence is any reference to a flat increase in the pay of an individual workmen. we are not impressed with the submission that the corrigendum was in effect a fresh award. we,therefore,see no ground for quashing the of the tribunal. dearness allowance linked to cost of living index is ordinarily the best and the most scientific method of computing dearness allowance,it cannot always be said that an illegality warranting interference under article 136 is committed if some other method is adopted. the tribunal has given satisfactory reason for adopting a different mode and we are not disposed to interfere with the award of the tribunal. STATUTE in making the application of 22nd december,1978,the union invoked the jurisdiction of the tribunal under rule 31 of the industrial disputes (bombay) rules,1957. rule 31 provides: the labour court,tribunal or arbitrator may correct any clerical mistake or error arising from an accidental slip or omission in any award it or he issues. the application before the tribunal was filed under rule 31 of the bombay industrial disputes rules 1957,which is as follows: "a board,court,labour court,tribunal or arbitrator may,at any time,suo moto or on an application made by any of the parties concerned,may correct any clerical mistake or error arising from an accidental slip or omission in any proceedings,report,award or as the case may be".

FACTS tata consultant engineers,was a partnership firm but subsequently the partnership was dissolved and in 1974 the undertaking became one of the divisions of tata sons limited. it functions as a consulting organisation and a service industry,and does not manufacture any product or carry on trade.its work force consists of engineers and supervisors and different categories of workmen. the tata consultant employees union served a charter of demands in july,1974,on the appellant,and as their demands were not accepted and conciliation proceedings proved fruitless,the state government made a reference of the dispute under s.10(1)(d),industrial tribunal,maharashtra for adjudication. the union filed a statement before the tribunal claiming an upward revision of the wage scales and dearness allowance and an increase from fifteen years to twenty years in the span for earning annual increments. it was urged that the efficiency bar,as a feature of the wage scales,should be removed. the dearness allowance,it was claimed,should be granted on a slab system. the claim of the union was resisted by the appellant,who maintained that the existing wage scales were fair and reasonable on a region-cum-industry basis and that it would not be possible for the appellant to bear the additional financial burden if the demands of the union were accepted. the appellant had introduced various pay scales in 1973 and some time later they were revised. there was no separate dearness allowance until january,1977 when it was introduced for the first time. house rent allowance was also paid. dearness allowance became payable at 10% of the basic wage subject to a minimum of rs.50/ and house rent allowance at 30% of the basic salary. the tribunal observed that compared with the increased paying capacity of the appellant,an inference drawn from the prosperity enjoyed by the appellant over the years,there was definite need for revising the wage scales. the tribunal took note of the elaborate scales of wages already existing in the wage structure of the appellant and decided "to modify the existing structure of the scales with flat increases in each category. the revised wage scales,the tribunal directed,should take effect retrospectively from 1st january,1976. it also laid down the principle enabling the actual fitment of the workmen in their respective wage scales as on that date and also provided for the number of increments to which they would be entitled having regard to the period of completed service. two days after the award was made,an application was made by the union stating: "in the said award,your honour has observed,at the end of para 22,in view of the increase that is being allowed in the basic pay,i do not propose to revise the existing scheme of dearness allowance." the workmen have filed an appeal by special leave, in which they have challenged the rejection by the tribunal of their claim in respect of dearness allowance which,they contend,should be pegged to the cost of living index and should not be a fixed amount. ARGUMENT considering the appeal of tata consulting engineers first,the contention of learned counsel for the appellant is that having regard to the financial capacity of the appellant the tribunal erred in making the wage scales retrospective and,in any event,in ranging the retrospectivity back to 1st january,1976. the learned counsel for the appellant had covered a wide field,but in the end he states that the appellant is aggrieved by two matters only. one is the retrospectivity attached to the revised wage scales,and the other is the flat increase given to each employee of rs.150/-in the category of draughtsmen and rs.100/-in other categories resulting from the order dated 22nd december,1978. it is urged that the amendment results in the inclusion of a flat increase of rs.150/-to each workman in the case of draughtsman and rs.100/-to each workman in the case of other categories,a result wholly unwarranted,it is said,by the intent of the original award and,therefore,falling beyond the jurisdiction of the tribunal. the only contention of the workmen is that the tribunal should have fixed the dearness allowance in communion with the cost of living index. ISSUE the primary and basic question considered by the industrial tribunal,in making the award dated december 20,1978 was the question of revision of the wage-scales. implicit and intrinsically connected with the question of revision of the wage-scales were the questions of fitment of employees into the wage-scales and flat or ad-hoc increase of salaries of workmen wherever considered necessary. ANALYSIS it must be remembered that although the wage scales were introduced as long ago as 1973 they were maintained at that level except for a slight revision some time thereafter. no dearness allowance was paid until the beginning of 1977 and the house rent allowance also was introduced about that time. the cost of living had gone on increasing from 1972 onwards and,as the tribunal has found,the dearness allowance and house rent allowance made no appreciable impact in neutralising the increasing cost. during all these years,the appellant had continued to enjoy increasing profits; nonetheless the emoluments received by the workmen did not receive the impress of the appellant's growing prosperity. the charter of demands was presented by the union in july,1974 and when conciliation proceedings failed the state government made the reference to the industrial tribunal in 1975. the tribunal has referred to various considerations which prevailed with it in giving retrospectivity to the revised pay scales. they are considerations which cannot be ignored. accordingly,the contention raised on behalf of the appellant against retrospectivity of the wage scales must be rejected. the financial capacity of the appellant,and the related study of its annual profits from 1968 to 1977,were examined from that view point. the sufficiency of the existing pay scales was considered in detail,and regard was had to their original structure and the accretions made subsequently by way of dearness allowance and house rent allowance. for the purpose of restructuring the pay scales the tribunal ruled on the paying capacity of the appellant,both with reference to the profits of the preceding year as well as the prospects of the future. the financial capacity,as the tribunal observed,constituted one of "the principles which are required to be followed in the fixation of the wage structure." no ad hoc increase to the pay of each individual workman was intended. the jurisdiction given to the tribunal by rule 31 is closely circumscribed. it is only a clerical mistake or error which can be corrected,and the clerical mistake or error must arise from an accidental slip or omission in the award. an accidental slip or omission implies that something was intended and contrary to that intention what should not have been included has been included or what should have been included has been omitted. it must be a mistake or error amenable to clerical correction only. it must not be a mistake or error which calls for rectification by modification of the conscious adjudication on the issues involved. the omission of the words to each employee first after the figure rs.150/-and again after the figure rs.100/-was clearly an accidental slip or omission which the tribunal was entitled to correct. it will be noted that the pay scales of different categories were being restructured,and the flat increase envisaged there related to an increase in the general pay scales of different categories. individual workmen were not present to the mind of the tribunal. that the increase was pertinent to the general pay scales in the revised wage structure is patently clear from a comparison of the existing pay scales and the revised pay scales. the comparative table of existing pay scales and the revised pay scales has been reproduced earlier. the revised pay scales of all categories,except the category of draughtsmen,shows an increase of rs.100/-in the initial pay fixed in each scale,the increase in the case of the category of draughtsmen being rs.150/. there was only one increase contemplated in the award,in paragraph 23 of award,and it is more than plain that the increase was the one incorporated in the revised pay scales pertaining to different categories. no second flat increase was envisaged at all. the amendment made by the tribunal has the effect of providing a second increase,this time to each individual workmen. if,as the tribunal has stated in the amendment order,the increase in paragraph 23 was intended to apply to each individual workmen,there is nothing in the body of the award to form the foundation on which the actual figures in the restructured pay scales can be made to rest. there will be no explanation why the initial start of the revised pay scales has been increased by rs.150/-in the case of the category of draughtsmen and rs.100/-in the case of other categories. considering the fitment of the workman in the revised scales,it was stated in the award that a workman found drawing a salary less than the beginning of the grade would be stepped up to the beginning of the grade and if his pay fell between two steps in the reclassified pay scales the basic pay was to be fixed at the step higher in the revised scale. reliance was placed on the hindustan times ltd.,new delhi v.their workmen [1964] 1 scr 234 1962 indlaw sc 436,247 where it was observed by this court that dearness allowance should not remain fixed at any figure but should be on a sliding scale in order to neutralise a portion of the increase in the cost of living. reference was also made to bengal chemical & pharmaceutical works limited v.its workmen [1969] 2 scr 113 1968 indlaw sc 183. now,it is not a universal rule that the dearness allowance should in all cases be correlated with the cost of living index. it was open to the tribunal to adopt the position which it did. if the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been made will have to be reconsidered. the award is a composite document in which the several elements of increased wage scales,larger increments,longer span of 20 years for earning increments,dearness allowance at 10% of the basic wage,besides several other benefits,have been integrated into a balanced arrangement in keeping with what the tribunal has found to be the financial capacity of the appellant. it is not possible to maintain one part of the award and supersede another. conspicuous by its absence is any reference to a flat increase in the pay of an individual workmen. we are not impressed with the submission that the corrigendum was in effect a fresh award. we,therefore,see no ground for quashing the of the tribunal. dearness allowance linked to cost of living index is ordinarily the best and the most scientific method of computing dearness allowance,it cannot always be said that an illegality warranting interference under article 136 is committed if some other method is adopted. the tribunal has given satisfactory reason for adopting a different mode and we are not disposed to interfere with the award of the tribunal. STATUTE in making the application of 22nd december,1978,the union invoked the jurisdiction of the tribunal under rule 31 of the industrial disputes (bombay) rules,1957. rule 31 provides: the labour court,tribunal or arbitrator may correct any clerical mistake or error arising from an accidental slip or omission in any award it or he issues. the application before the tribunal was filed under rule 31 of the bombay industrial disputes rules 1957,which is as follows: "a board,court,labour court,tribunal or arbitrator may,at any time,suo moto or on an application made by any of the parties concerned,may correct any clerical mistake or error arising from an accidental slip or omission in any proceedings,report,award or as the case may be".

in these appeals the dispute relates to payment of compensation pursuant to acquisition of land of respondent m s. jaswant sugar mills ltd hereinafter referred to as the company and auction of part of the land of the company. there being cross claims all of these appeals were heard together for determination by a common judgment. the company preferred two writ petitions challenging the orders passed by the district magistrate collector meerut and board of revenue dated 18th december1995 and 3rd august1996 respectively. the aforesaid orders were also challenged by the state government. the writ petitions were disposed of by the learned single judge of allahabad high court by a common judgment dated 1st. march2011 by the said judgment the high court directed the state government to pay the company the compensation on the basis of the compromise reached between the state government and the tenure holder company for acquisition of their land by meerut development authority. it is also directed that out of compensation paid by the meerut development authority about rs 4 33 crores an amount of rs 1 62 crores shall be deducted and the remaining amount shall be paid to the company. the state has been given liberty to realize the said amount from those authorities to whom it was wrongly paid by the previous collector tulsi gaur under his order dated 20th. february1992 the impugned judgment dated 1st march2011 has been challenged by the state of u p in c a nos 6169 6171 of 2013 state of u p ors. m s jaswant sugar mills ltd ors etc as also by m s jaswant sugar mills ltd in c a nos 6172 6174 of 2013. ors m s. jaswant sugar mills ltd vs. the colletor district magistrate ors. a piece of land of the company was put to auction for recovery of dues of the company. it was challenged by the company by filing a writ petition. the high court by impugned judgment dated 27th april2001 cancelled the auction sale and allowed the writ petition. in a review application preferred by auction purchaser the high court by order dated 3rd september2001 directed the respondents to refund the amount to the auction purchasers. the aforesaid judgment and orders are under challenge in c a nos 7122 of 20037123 7124 of 20037125 of 2003 and 7126 7129 of 2003. c a nos 6169 6171 of 2013 and c a nos 6172 6174 of 2013. for determination of the issue involved in c a nos 6169 6171 of 2013 and c a nos 6172 6174 of 2013it is desirable to refer the relevant factual matrix of the case which is as follows. the proprietors of respondent company namely m s jaswant sugar mills ltd had six business units as under m s. jaswant sugar mills. meerut straw board mills. pootha farm. northern india paper mills. bindal vanaspati ghee mills. meduwala open pan sugar bijnor. the company was in heavy arrears as on 3rd january1977 to the extent of rs 1 14 crores. accordingly the district collector meerut appointed a receiver under section 286 a of u p zamindari abolition and land reforms acthereinafter referred to as the zamindari abolition act. subsequently the company was acquired by the state on 28th october1984. as per provisions of the u p state sugar undertakings acquisition act1971 hereinafter referred to as the acquisition act1971as amended in the year 1984free from all encumbrances and the said unit was vested with the u p state sugar corporation hereinafter referred to as the corporation. since the company was in arrears to the extent of rs 1 29 crores the district collector meerut by order dated 28th november1984attached all the remaining five constituent units except the sugar mill. the general manger of the aforesaid sugar unit was appointed as a receiver with reference to all the aforesaid remaining five units. in between 1977 to 1984for smooth functioning of the sugar mill payment of dues to sugarcane grower repairing of machinery etc. on the request of the receiver the state government granted loan of rs 6 13 crores to the company and was to be recovered as the arrears of land revenue along with interest. the district collector meerut taking into consideration the dues to the extent of rs 1 62 crores as on 24th october1990 were to be paid by the company extended the tenure of the receiver till further orders. the order of the extension of tenure of the receiver was challenged by the ex proprietors of the company in a writ petition no 184961991 subsequently the receiver was withdrawn on 18th december1995therefore the writ petition was also withdrawn. pursuant to uttar pradesh imposition of ceiling of land holdings act hereinafter referred to as the ceiling actland admeasuring 723 3 bigha belonging to the company was declared surplus. against the same a writ petition no 39051987 was preferred by the company. during the pendency of the aforesaid writ petition the state government issued a notification dated 14th august1987 u s 4 read with s 174 of the land acquisition act1894 for the meerut development authority. it was followed by a notification dated 4th september1987 issued u s 6 of the acquisition act. the said notification included the land of m s pootha farm a constituent unit of the company. in the said case compensation amount of rs 4 33 crores was awarded by special land acquisition officer vide award dated 22nd february1990. the district collector meerut pursuant to a report of the tehsildar ordered to pay the compensation amount after adjustment of different dues payable by the company 11 pursuant to a court 's order the district collector meerut passed a speaking order dated 20th february1992 showing the details of adjustments to be made out of compensation amount of rs 4 34 crores payable by the company as detailed below. the district collector in the said order dated 20th february1992 concluded that after such adjustment the following dues were still to be paid by the company. the state government filed the deduction statement for recovery of the dues before the prescribed authority constituted under u p sugar undertaking acquisition act1971 however the aforesaid claim was rejected by the prescribed authority by order dated 4th october1994 in claim no 13 of 1999. against the said order dated 4th october1994 passed by the prescribed authority the appellant filed appeal no 195 before the appellate tribunal. by order dated 12th october1995the appellate tribunal directed the appellant to file a fresh deduction claim before the prescribed authority. the company moved an application before the district collector meerut stating therein that as on date there are no arrears liability payable by the company therefore requested to remove the receiver. the district collector meerut by order dated 18th december1995allowed the case no 301995 with observation that as on the date no recovery certificate was pending against the company. hence the appointment of receiver was terminated with immediate effect. it was further ordered that a detailed list of the assets be prepared and signed by both the parties and the assets be transferred to the company. an order was passed to appoint a chartered accountant to complete the audit of the accounts. as the order dated 18th december1995passed by the district collector meerut is silent about the amount payable to the company the ex proprietor of the company moved an application before the chairman board of revenue and requested to refund the compensation amount to the company. the company filed a writ petition no 102201996 before high court for modification of the order of the district collector meerut dated 18th december1995. during the pendency of the said case the chairman board of revenue by order dated 3rd august1996 directed that out of the total amount of rs 4 33 crores received as compensation from meerut development authority after deduction of a sum of rs 1 62 crores along with interest and collection charges the balance amount shall be refunded to the company. against the aforesaid order dated 3rd august1996 passed by the chairman board of revenue the company filed writ petition no 313781996 on the ground that there is no dues payable by the company. in the said case the u p state sugar corporation ltd filed a counter affidavit refuting such stand taken by the company. a separate counter affidavit was filed by the deputy secretary sugar and cane development lucknow giving details of dues payable by the company as detailed by the district collector meerut by his order dated 18th december1995. the high court initially passed an interim order on 17th july1997 as under considering the facts and the circumstances of the case the respondents are directed to pay to m s ltd. meerut the amount of compensation money amounting to rs 43394783 40 after deducting a sum of rs 16202402 20 interest and collection charges within a period of two months from today. payments so made shall be subject to final decision of the writ petition. against the interim order the appellant state filed the special appeals. by judgment and order dated 7th july2010 passed in special appeal nos 5179 802010the high court quashed the interim order dated 17th july1997 passed by the learned single judge. it was ordered to dispose of the writ petition expeditiously. in the meantime the district collector by its notice dated 22nd august2005directed the company to refund certain amount. the said notice was also challenged by the company. the high court by judgment and order dated 23rd february2011 quashed the notice dated 22nd august2005. with direction to the appellant to pay the compensation amount to the company. however it was clarified that if the land which have been acquired finally does not fall within the ceiling limit of the company then it will be open for the state to recover it after the finalisation of the ceiling proceedings as per law. subsequently impugned common judgment and order dated 1st. march2011 was passed in writ petition no 313781996etc. with observation and directions as referred to above. the grievance of the appellant state is that the high court while passing the impugned order has not noticed the liability incurred by the undertaking and the loan paid to the company. according to the appellant the aforesaid issue has not been decided. on the other hand learned counsel for the respondents made the following submissions i no amount whatsoever is due and payable by the company to the state. till date there has not been a single determination adjudication by any court authority of any dues against the company nor is there any claim pending before any authority or before any court on date. furthermore the state has not been able to produce any recovery certificate of any department showing any dues against the company. the collector has no power to adjudicate the dues under the u p zamindari abolition and land revenue act and is merely a recovery agent to recover sums payable as arrears of land revenue upon receipt of a valid recovery certificate. we have heard learned counsel for the parties and perused the records. it is not in dispute that the company was under heavy arrears as on 3rd january1977 therefore the district collector meerut appointed the receiver. subsequently sugar mill of the company was acquired on 28th october1984. under sugar undertakings acquisition act1971 and the unit was vested with the u p state sugar corporation. till 28th november1984the company was the owner of the units sugar mill. it was in arrears to the extent of rs 1 29 crores. therefore the district collector meerut attached remaining five constituent units and the general manager of the sugar unit was appointed as a receiver. in between 1979 and 1984the state government extended a facility of loan to the extent of rs 6 13 crores to the receiver appointed by the state government for smooth functioning of the sugar mill including payment of dues to sugarcane grower repairing of machinery etc. it is also not in dispute that labour and other dues were payable by the company apart from sale tax dues and the loan was given by the state government between 1977 1984 for payment of such dues. the high court by the impugned judgment dated 1st march2011though noticed the aforesaid facts including the fact that the collector tulsi gaur by order dated 20th february1992 held that there were dues of about rs 10 44 crores payable by the company part of which can be adjusted from the compensation amount paid by the meerut development authority even thereafter an amount of rs 6 09 crores will remain payable by the company but the high court failed to address such issue. the high court though noticed that s 8 of the u p state sugar undertakings acquisition act1971 empowers the prescribed authority to decide any dispute regarding the amount payable to any person or authority in respect of earlier liabilities of the undertaking but it wrongly held that in view of the provisions of the u p sugar undertakings acquisition act1971. any liability incurred by the company or loan etc taken by the receiver is not payable by the company. it is always open to the competent authority to seek recovery of the amount if due from the company or to adjust the dues. the collector tulsi gaur was not a party by name. the order dated 20th february1992 passed by the collector was also not under challenge inspite of the same the high court declared the order dated 20th february1992 as illegal. for the reason aforesaid the impugned order dated 1st march2011 passed by the high court in w p no 10220 of 1996 etc cannot be upheld. the same is accordingly set aside. the matter is remitted to the district collector meerut to determine the liability of the company upto the date of vesting i e 28th october1984 after notice to the parties. the authority while so determining shall take into consideration the liability of the company as on 28th october1984including labour charges sales tax loan amount given by the state government etc if payable. after determination of liabilities and adjustment of the dues which is payable by the company if any amount is found payable to the company the appellant shall pay the amount within four months from the date of determination. on the other hand if any amount is found payable by the company the competent authority may recover the amount in accordance with law. c a no 7122 of 2003c a nos 7123 7124 of 2003 and c a no 7125 of 2003. for determination of the issue involved in c a nos 7122 of 20037123 7124 of 20037125 of 2003 and 7126 7129 of 2003 relevant factual matrix of the case is as follows. after giving credit of rs 4 33 crores payable by the state government on account of amounts towards compensation for acquisition of land the liability of the company was determined at rs 6 09 crores on 20th february1992 a sale proclamation was accordingly issued. the land of the company measuring 1 391 hectares in village maliyana was put to auction. the appellants m s. rudra estate pvt. ltd and another were the highest bidders. according to auction purchasers the entire amount was paid as per highest bid. title to the land was also transferred in their favour. the company being aggrieved preferred a civil misc. writ petition no 16451 of 1999 before the high court of judicature at allahabad challenging the sale proclamation dated 28th march1992order dated 30th may1992 passed by sub divisional magistrate meerut confirming the sale of the properties owned by the company and the order dated 5th april1999 passed by the commissioner meerut division meerut whereby the objections filed by the company under rule 285 1 of the rules framed under u p zamindari abolition and land reforms act hereinafter referred to as the land reforms act was rejected. the said writ petition was allowed by the learned single judge by the impugned judgment and order dated 27th april2001 with following observations for the facts and reasons stated above this petition succeeds and is hereby allowed. the order dated 05 04 1999 annexure 23order dated 30 05 1992 annexure 7sale proclamation dated 28 3 1992 annexure 2 are hereby quashed and the respondents are directed to restore back status quo ante as on before the auction sale dated 28 04 1992 was held within a period of two weeks from the date a certified copy of this order is communicated to the competent authority. ltd being aggrieved by the said judgment preferred review application under order xlvii rule 1 cpc for review of the judgment and order dated 27th april2001 passed by the high court. the review application was disposed of by an order dated 3rd september2001 with the following observations in view of the aforesaid facts and circumstances in my opinion it will meet the ends of justice if i grant three months time to the respondent no 2 and 3 to refund the amount in question to the auction purchasers application during this time the said amount shall positively be paid to them. it is ordered accordingly. another application was filed by m s ltd under order xivii rule 1 cpc for review of the order dated 3rd september2001 the said review application was dismissed by the impugned judgment dated 15th march2002. the aforesaid orders have been challenged in c a no 7122 of 2003 m s rudra estate pvt ltd anr vs. jaswant sugar mills ltd ors c a nos 7123 7124 of 2003c a no 7125 of 2003 shri munindra singh anr vs. jaswant sugar mills ltd ors. and c a nos 7126 7129 of 2003 commissioner meerut division meerut vs m s jaswant sugar mills ltd. on 30th october2002 c a no 7122 of 2003 preferred by m s ltd was taken up and this court passed the following order delay condoned. out of the 3 special leave petitions the only special leave petition which we find worth being entertained after hearing the learned senior counsel for the petitioners is as against the order dated 15 3 2002 issue notice to respondents no 2 to 4 only limited to the question as to why the amount directed to be refunded to the petitioner should not bear reasonable interest. dasti service in addition is permitted. the other two special leave petitions are dismissed. on 24th january2003c a nos 7123 24 of 2003 preferred by shri munindra singh anr were taken up and this court passed the following order delay condoned. permission to file the special leave petition is granted. after hearing the learned counsel for the petitioners we are satisfied that no fault can be found with the impugned judgment of the high court so far as the setting aside of the sale is concerned. the learned counsel for the petitioners invites our attention to the order dated 20 10 2002 page 94c of the paper book issue notice to respondent nos 1 to 4 limited to the question as to why the amount which will be directed to be refunded to the petitioners herein consequent upon the sale having been set aside should not bear reasonable interest. tag with slpcno 215402002. as against the said order c a nos 7126 292003. commissioner meerut division meerut ors. jaswant sugar mills ltd have been preferred by the commissioner meerut division meerut. the said case was also tagged with the aforesaid appeals. in view of the fact that this court vide order dated 27th. april2003 in c a nos 7123 7124 of 2003 held that this court is satisfied that no fault can be found with the impugned judgment of the high court so far as the setting aside of the sale is concerned we dismiss the appeals so far it relates to cancellation of auction sale. we have heard the parties only on the limited question as to why the amount which has been directed to be refunded to the auction purchasers appellants herein should not bear reasonable interest. in a situation like in the present case one can not hold of any statute entitling the auction purchasers to claim interest in case the auction got cancelled or set aside by the court of law. counsel for the parties also could not refer any of the clauses of auction prescribing interest on refund of amount in case of cancellation of auction or sale. the question arises as to whether in such a situation an auction purchaser can claim interest on equitable ground. in state of maharashtra and others vs maimuma banu and others2003 7 scc 448 2003 indlaw sc 625the question arose as to whether interest was payable on rental compensation. in the said case government resolution provided for payment of rental compensation expeditiously but no provision was made to pay interest in case of delayed payment. this court in the said case held 10 the crucial question is whether there can be any direction for interest on rental compensation once it is held that the same has to be paid within the time frame notwithstanding the fact that there is no statutory obligation. 11 it is not in dispute that in certain cases payments have already been made. though the inevitable conclusion is that the high court is not justified in directing grant of interest on the logic of various provisions contained in the act yet there is an element of equity in favour of the landowners. it is however seen that the writ applications were filed long after the possession was taken. this factor can not be lost sight of while working out the equities. it would therefore be appropriate if the appellants pay interest. 6 from 1 4 2000 till amounts payable as rental compensation are paid to the landowners concerned. this direction shall not apply to those cases where the payments have already been made prior to 1 4 2000 appeals are allowed to the extent indicated without any stipulation of costs. in the present case we find that there was no mis representation on the part of the auction purchasers they deposited the total auction amount within the time stipulated. it has not been in dispute that the title of the land was also transferred in their favour. but for the reasons mentioned by the high court the sale has been cancelled. it has been ordered to refund amount in favour of the auction purchaser appellants we find no reason as to why on equitable grounds the appellants should not get interest on the said amount. taking into consideration the aforesaid factor while working out equities it would therefore be appropriate to direct the state to pay interest at the rate of 6 on the amount to be refunded as per the high court 's order with effect from 27th april2001 and 3rd. september2001the day the high court passed the impugned order. the concerned respondents are directed accordingly. c a nos 6169 6171 of 2013c a nos 6172 6174 of 2013c a no 7122 of 2003c a nos 7123 7124 of 2003c a no 7125 of 2003 are allowed in terms of the directions as above. the appeals c a nos 7126 7129 of 2003 filed by the commissioner meerut are dismissed. no costs. appeals dismissed.

FACTS in these appeals the dispute relates to payment of compensation pursuant to acquisition of land of respondent-m/s. jaswant sugar mills ltd. and auction of part of the land of the company. the company preferred two writ petitions challenging the orders passed by the district magistrate, which were disposed of by the learned single judge of allahabad high court by a common judgment. by the said judgment,the high court directed the state government to pay the company the compensation on the basis of the compromise reached between the state government and the tenure holder company for acquisition of their land by meerut development authority. it is also directed that out of compensation paid by the meerut development authority (about rs.4.33 crores) an amount of rs.1.62 crores shall be deducted and the remaining amount shall be paid to the company. the high court by impugned judgment dated 27th april,2001 cancelled the auction sale and allowed the writ petition. in a review application preferred by auction purchaser,the high court by order dated 3rd september,2001 directed the respondents to refund the amount to the auction purchasers. the aforesaid judgment and orders are under challenge in c.a.nos.7122 of 2003,7123-7124 of 2003,7125 of 2003 and 7126-7129 of 2003. c.a.nos.6169-6171 of 2013 and c.a.nos.6172-6174 of 2013. during the pendency of the writ petition the state government issued a notification dated 14th august,1987 u/s.4 read with s.17(4) of the land acquisition act,1894 for the meerut development authority. it was followed by a notification dated 4th september,1987 issued u/s 6 of the acquisition act. the said notification included the land of m/s pootha farm,a constituent unit of the company. in the said case compensation amount of rs.4.33 crores was awarded by special land acquisition officer vide award dated 22nd february,1990 the company moved an application before the district collector,meerut stating therein that as on date there are no arrears/liability payable by the company,therefore,requested to remove the receiver. the district collector,meerut by order dated 18th december,1995,allowed the case no.30/1995 with observation that as on the date no recovery certificate was pending against the company. hence,the appointment of receiver was terminated with immediate effect. it was further ordered that a detailed list of the assets be prepared and signed by both the parties and the assets be transferred to the company. the high court by judgment and order dated 23rd february,2011 quashed the notice dated 22nd august,2005. with direction to the appellant to pay the compensation amount to the company. however,it was clarified that if the land,which have been acquired finally,does not fall within the ceiling limit of the company,then it will be open for the state to recover it after the finalisation of the ceiling proceedings,as per law. subsequently,impugned common judgment and order dated 1st. march,2011 was passed in writ petition no.31378/1996,etc.,with observation and directions as referred ARGUMENT the grievance of the appellant-state is that the high court while passing the impugned order has not noticed the liability incurred by the undertaking and the loan paid to the company. according to the appellant,the aforesaid issue has not been decided. on the other hand,learned counsel for the respondents made the following submissions: (i. no amount,whatsoever,is due and payable by the company to the state. till date,there has not been a single determination/adjudication by any court/authority of any dues against the company nor is there any claim pending before any authority or before any court,on date. furthermore,the state has not been able to produce any recovery certificate of any department showing any dues against the company. ii. the collector has no power to adjudicate the dues under the u.p.zamindari abolition and land revenue act and is merely a recovery agent to recover sums payable as arrears of land revenue,upon receipt of a valid recovery certificate. ISSUE the aforesaid orders have been challenged in c.a.no.7122 of 2003 (m/s. rudra estate pvt.ltd.&; anr.vs. jaswant sugar mills ltd.&; ors.),c.a.nos.7123-7124 of 2003,c.a.no.7125 of 2003 (shri munindra singh &; anr.vs. jaswant sugar mills ltd.&; ors. and c.a.nos.7126-7129 of 2003 (commissioner,meerut division,meerut vs. m/s jaswant sugar mills ltd. ANALYSIS it is not in dispute that the company was under heavy arrears as on 3rd january,1977. therefore,the district collector,meerut appointed the receiver. it is also not in dispute that labour and other dues were payable by the company apart from sale tax dues and the loan was given by the state government between 1977-1984 for payment of such dues. the order dated 20th february,1992 passed by the collector was also not under challenge,inspite of the same the high court declared the order dated 20th february,1992 as illegal. the parties only on the limited question as to why the amount which has been directed to be refunded to the auction purchasers-appellants herein should not bear reasonable interest. in a situation like in the present case,one cannot hold of any statute entitling the auction purchasers to claim interest,in case the auction got cancelled or set aside by the court of law. counsel for the parties also could not refer any of the clauses of auction prescribing interest on refund of amount in case of cancellation of auction or sale. the question arises as to whether in such a situation an auction purchaser can claim interest on equitable ground. in state of maharashtra and others vs. maimuma banu and others,(2003) 7 scc 448 2003 indlaw sc 625,the question arose as to whether interest was payable on rental compensation. in the present case, there was no mis-representation on the part of the auction purchasers; they deposited the total auction amount within the time stipulated. it has not been in dispute that the title of the land was also transferred in their favour. but for the reasons mentioned by the high court the sale has been cancelled. it has been ordered to refund amount in favour of the auction purchaser. appellant(s). there is no reason as to why on equitable grounds the appellants should not get interest on the said amount. taking into consideration the aforesaid factor while working out equities,it would,therefore,be appropriate to direct the state to pay interest at the rate of 6% on the amount to be refunded as per the high court's order with effect from 27th april,2001 and 3rd. september,2001,the day,the high court passed the impugned order.

FACTS the company preferred two writ petitions challenging the orders passed by the district magistrate/collector,meerut and board of revenue dated 18th december,1995 and 3rd august,1996 respectively. the aforesaid orders were also challenged by the state government. the writ petitions were disposed of by the learned single judge of allahabad high court by a common judgment dated 1st march,2011. by the said judgment,the high court directed the state government to pay the company the compensation on the basis of the compromise reached between the state government and the tenure holder company for acquisition of their land by meerut development authority. it is also directed that out of compensation paid by the meerut development authority (about rs.4.33 crores) an amount of rs.1.62 crores shall be deducted and the remaining amount shall be paid to the company. the state has been given liberty to realize the said amount from those authorities to whom it was wrongly paid by the previous collector,tulsi gaur,under his order dated 20th february,1992. a piece of land of the company was put to auction for recovery of dues of the company. it was challenged by the company by filing a writ petition. the high court by impugned judgment dated 27th april,2001 cancelled the auction sale and allowed the writ petition. the proprietors of respondent company,namely m/s.jaswant sugar mills ltd.had six business units as under: m/s.jaswant sugar mills,meerut straw board mills, pootha farm, northern india paper mills, bindal vanaspati ghee mills. meduwala open pan sugar,bijnor. the company was in heavy arrears as on 3rd january,1977 to the extent of rs.1.14 crores.accordingly,the district collector,meerut appointed a receiver under section 286-a of u.p.zamindari abolition and land reforms act. pursuant to "uttar pradesh imposition of ceiling of land holdings act" (hereinafter referred to as the "ceiling act"),land admeasuring 723.3 bigha belonging to the company was declared surplus. against the same a writ petition no.3905/1987 was preferred by the company. by judgment and order dated 7th july,2010 passed in special appeal nos.5179-80/2010,the high court quashed the interim order dated 17th july,1997 passed by the learned single judge. it was ordered to dispose of the writ petition expeditiously. in the meantime,the district collector by its notice dated 22nd august,2005,directed the company to refund certain amount. the said notice was also challenged by the company. the high court by judgment and order dated 23rd february,2011 quashed the notice dated 22nd august,2005 with direction to the appellant to pay the compensation amount to the company. however,it was clarified that if the land,which have been acquired finally,does not fall within the ceiling limit of the company,then it will be open for the state to recover it after the finalisation of the ceiling proceedings,as per law. subsequently,impugned common judgment and order dated 1st march,2011 was passed in writ petition no.31378/1996,etc.,with observation and directions as referred to above. ARGUMENT the grievance of the appellant-state is that the high court while passing the impugned order has not noticed the liability incurred by the undertaking and the loan paid to the company. no amount,whatsoever,is due and payable by the company to the state. till date,there has not been a single determination/adjudication by any court/authority of any dues against the company nor is there any claim pending before any authority or before any court,on date. furthermore,the state has not been able to produce any recovery certificate of any department showing any dues against the company. the collector has no power to adjudicate the dues under the u.p.zamindari abolition and land revenue act and is merely a recovery agent to recover sums payable as arrears of land revenue,upon receipt of a valid recovery certificate. ISSUE the aforesaid orders have been challenged in c.a.no.7122 of 2003 (m/s. rudra estate pvt.ltd.&; anr.vs. jaswant sugar mills ltd.&; ors.),c.a.nos.7123-7124 of 2003,c.a.no.7125 of 2003 (shri munindra singh &; anr.vs. jaswant sugar mills ltd.&; ors. and c.a.nos.7126-7129 of 2003 (commissioner,meerut division,meerut vs. m/s jaswant sugar mills ltd. ANALYSIS the company was under heavy arrears as on 3rd january,1977.therefore,the district collector,meerut appointed the receiver. subsequently,sugar mill of the company was acquired on 28th october,1984 under sugar undertakings acquisition act,1971 and the unit was vested with the u.p.state sugar corporation. it is also not in dispute that labour and other dues were payable by the company apart from sale tax dues and the loan was given by the state government between 1977-1984 for payment of such dues. the high court though noticed that s.8 of the u.p.state sugar undertakings acquisition act,1971 empowers the prescribed authority to decide any dispute regarding the amount payable to any person or authority in respect of earlier liabilities of the undertaking,but it wrongly held that in view of the provisions of the u.p.sugar undertakings acquisition act,1971 any liability incurred by the company or loan etc.taken by the receiver is not payable by the company. it is always open to the competent authority to seek recovery of the amount if due from the company or to adjust the dues. the court heard the parties only on the limited question as to why the amount which has been directed to be refunded to the auction purchasers-appellants herein should not bear reasonable interest. one cannot hold of any statute entitling the auction purchasers to claim interest,in case the auction got cancelled or set aside by the court of law. counsel for the parties also could not refer any of the clauses of auction prescribing interest on refund of amount in case of cancellation of auction or sale. in state of maharashtra and others vs.maimuma banu and others,(2003) 7 scc 448 2003 indlaw sc 625,the question arose as to whether interest was payable on rental compensation. in the said case,government resolution provided for payment of rental compensation expeditiously but no provision was made to pay interest in case of delayed payment. this court in the said case held that the crucial question is whether there can be any direction for interest on rental compensation once it is held that the same has to be paid within the time frame,notwithstanding the fact that there is no statutory obligation. appeals are allowed to the extent indicated without any stipulation of costs. taking into consideration the aforesaid factor while working out equities,it would,therefore,be appropriate to direct the state to pay interest at the rate of 6% on the amount to be refunded as per the high court's order.

a suit was filed in s c suit no 493 of 1986 in the bombay city civil court bombay by vicco laboratories appellant herein manufacturers of ayurvedic pharmaceutical products against defendant nos 1 to 4respondents herein for a declaration that the title and format of the suit serial yeh jo hai zindagi exclusively belonged to them and respondents nos 1 to 4 have no right thereto and for permanent injunction restraining the said respondents from making use of the title or episodes belonging to the petitioners or any episodes hereafter made. a number of averments germane to this case as set out in the plaint are set out hereunder. the petitioners carried on business as manufacturers of ayurvedic pharmaceuticals products which were sold under the brand name of vicco and have acquired substantial reputation in the market. the 1st respondent are an advertising agency and have been the advertising agents in respect of the products manufactured by the petitioners as aforesaid for number of years. the 2nd respondent is a director andor partner of the 1st respondent and has mainly dealt with the petitioners on behalf of the 1st respondent. respondents nos 3 4 are proprietary concerns of respondent no 2 the 5th respondent is the union of india and has been joined as the authority concerning television in india in the name and style of doordarshan which is a television media. the petitioners had employed the respondent nos 1 to 4 as their advertising agents through the petitioners sister concern m s modern advertising agency and uta advertising agency and were dealing with the respondent no 1 mainly through the petitioners managing director g k pendharkar. in 1984doordarshan in order to popularize sponsored serial undertook the production of a serial by the name humlog. the petitioners are also pioneers in making use of doordarshan for advertising their products through the agency of the 1st respondent approached the 1st respondent to act as their agents for the purpose of producing a serial which would be shown as petitioners sponsored programme. the petitioners agreed to pay the entire costs of the said production to the said advertising agency and requested it to look into the matter employed various persons on behalf of the petitioners and prepare a suitable serial for them. pursuant to the said arrangement the respondent nos 1 to 4 as the agents of the petitioners prepared at the costs and expenses of the petitioners a serial entitled yeh jo hai zindagi. the petitioners claimed that as a result of the employment of the respondent nos 1 to 4 and the finances paid by them the petitioners are the owners of the said serial yeh jo hai zindagi and the title thereof. the first and second respondents under the arrangement produced about 60 episodes and the petitioners have spent a crore of rupees for the products and telecast of the said episodes and have also spent large sums of money on advertising to popularize the said programme. yeh jo hai zindagi had gained popularity and had become one of the most exclusive and popular serial. the petitioners claimed that the exclusive right to use the title thereof belonged to them and the 2nd episode of yeh jo hai zindagi was telecast without the name of the petitioners being mentioned as sponsors nor was their advertisement shown. this was due to the negligence of the respondent nos 1 to 4 but the respondents recovered the cost of production from the petitioners. further the said respondents had been recovering the cost of production well in advance of the serial episodes being actually produced. the petitioners claimed that they were the real producers and owners of the said serial yeh jo hai zindagi and the petitioners to the knowledge of the respondents have entered into an agreement assigning the video rights in the said serial to one m s esquire distributing and servicing pvt. ltd on. 01 january 1985 the petitioners though not required to do so made an ex gratia payment to respondent nos 1 to 4 of a portion of the royalty received by them from the said m s esquire distributing and servicing pvt. 1st and 2nd respondents had by their letter dated 14 december 1984 confirmed that the petitioners have all t v and video rights of the sponsored programme in hindi yeh jo hai zindagi and vest with the petitioners. though original agreement was to have 27 episodes but having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes and by a letter dated 22 april 1985 the petitioners informed respondent nos 1 and 2 that in the title of the 27th and 28th episodes it has been stated that it is presented by oberoi films. some time in may 1985the 1st respondent proposed to the petitioners that some other products should be tied up with the serial yeh jo hai zindagi. however the petitioners were not interested in the same as they wanted the serial to project their products only exclusively and did not agree to any other products being tied up with the said serial. the respondents on 27 december 1985 alleged that they were losing rs 50000 to rs 75000 per episode and indicated that they wanted to get a new sponsor. by their letter dated 02 january 1986 the petitioners informed the 1st and 2nd respondents that it was not possible to increase the costs of production for the episodes and that in the circumstances the production of the serial may stop. it was also pointed out that the name yeh jo hai zindagi is associated with the vicco laboratories and that if they wanted to obtain another sponsor they could produce a new serial under a different name. the petitioners apprehended that the respondent nos 1 to 3 intended to produce further episodes under the title yeh jo hai zindagi making use of the same format as the earlier serial for and on behalf of the third party. the petitioners reserved their right to sue for damages in terms of order ii rule 2 cpc. the respondent nos 1 to 4 in their written statement contested the suit. apart from raising the question of valuation of the suit and the pecuniary jurisdiction of the court to try the same they also raised question that the petitioners are not the owners of the copyright in the said serial within the meaning of s 17 of the copyright act1957 and the copyright in respect of the said serial belongs and vests with the respondent nos 1 to 4. therefore it was submitted that the suit lacked cause of action. while traversing the case on merit they contended that it was all along agreed between the petitioners and respondents that the copyright in the said serial would rest exclusively in the respondents and not in the petitioners. thus the respondents name was shown in the title of the said serial as the producer thereof right from the beginning of the said serial but the petitioners did not protest against the same. consistently with the said intention further the master cassette of the said serial at all relevant times remained exclusively with the respondents and not with the petitioners and the petitioners paid to the respondents 50 of the royalty received from m s esquire distributing and servicing pvt. ltd under the agreement dated 1 januray 198504 march 1985 and 16 september 1985 the advertisements issued by the petitioners themselves in various newspapers to give wide publicity to the said serial would indicate that the serial mentioned these respondents are the owners of the copyright in respect of the said serial and the petitioners claim in that behalf is devoid of any substance. the respondents also contended that even assuming but without admitting that even if the petitioners are the owners of the copyright in respect of the said serial as on the date of the suit they ceased to be such owners in view of the fact that these rights vested in them before the institution of the suit and they have acquiesced in the exercise of the said right by these respondents by their conduct as referred to earlier. it was also contended that the 2nd respondent is an artist and a film maker and has been in the field of film making for the past 20 years. in the course of his business the 2nd respondent has developed contacts and connections with important and renowned personalities artists technicians etc in the film industry. in the year 1967the 2nd respondent 's wife mrs sunanda s oberoi started the proprietary business of advertising agency in the name and style of art commercial and the 2nd respondent used to work in various capacities for the said firm. in the year 1983the said proprietary firm was converted into a private limited company which is the 1st respondent in the present suit and the 2nd respondent constituted respondent nos 3 and 4 as his proprietary firm. about 18 years ago before filing of the suit the respondents came into contact with the petitioners initially as clients in connection with the job of advertisement of their products on all india radio theatre and films and later on television. these ad films and jingles fetched handsome returns for the petitioners and boosted their sales beyond their own expectations. in course of time the 2nd respondent and partners of the petitioners especially g k pendharkar came very close to each other and developed very intimate relations. either at the end of 1983 or early part of 1984the 5th respondent through the said doorsarshan decided to introduce the production of films or serials especially for exhibitions on tv instead of exhibiting telecasting films produced by the professional film producers on payment of exorbitant royalty to them partly as an economy measure and partly to provide avenues to and exposure new talents. the 5th respondent thereafter decided to entertain welcome andor encourage the proposals from the private producers to produce such serials or films at their own cost and responsibility and under the said scheme the advertisers desirous of linking up their advertisements with such films or serials were required to negotiate and settle directly with the producers of such films andor serials the royalty or consideration payable to such producers for linking up their advertisements and commercials with their film serial and under the said scheme further such advertisements were offered handsome concessions in the rates of advertisements for display of their ads on tv. as against the regular rates charge of rs 324000 for display of advertisements on tv of such advertisers for 120 seconds per telecast the relevant time at the rate of rs 35000 only for 120 seconds in addition to the royalty or consideration payable to the producers of such films or serials which invariably was far less than the difference between the usual rates and concession rates of advertisements. the 2nd respondent undertook the preliminary project work on his own without loss of any time. the 2nd respondent made extensive study and research and prepared a format of the proposed serial. the said team of the 2nd respondent responded to his appeal and took great pains and put in hard work in the said project and presented to him an exclusive and ingenious format of the proposed serial. the 2nd respondent then approached the 5th respondent through doordarshan with his proposal to produce the said serial then proposed to be entitled mussibat hai. after a number of meetings between the 2nd respondent and the concerned officers and the authorities of the respondents at delhi in connection with the said proposal approved a pilot i e the first episode as sample on 19 september 1984 to produce a tv serial comprising 52 episodes subject of course to the 5th respondent discretion to discontinue the same if the same proved a flop before the expiry of the stipulated period. the entire cost of the spade work and the cost of the title song was borne exclusively by the respondents and nothing was contributed by the petitioners in this regard. the 5th respondent registered the respondent nos 1 and 2 as the producers of the said serial. after finalizing the proposal by the tv authorities respondent no 2 asked the petitioners as to whether they were interested in the linking up their ads with the said serial. petitioners agreed to link up their ads with 26 episodes of the said serial. the petitioners agreed to pay fixed amount to these respondents per episode for linking up their commercials with the said serial and not on the basis of the actual cost of production of each episode so that if the cost of production exceeded the said fixed amount the respondents had to bear the same. in these circumstances the respondents contended that by entering into the said agreement of sponsorship neither the petitioners nor the respondents created nor did they ever intend to create any relationship of employer and employee andor master and servant or principal and agent between the petitioners on the one hand and the respondents no 1 to 4 on the other. nor did the parties intend that the respondents should produce the said serial for the petitioners or at the instance of the petitioners and the respondents intended to embark on the production of the said serial on their own. the petitioners by their letter dated 02 january 1987 turned down the respondents demand and informed the respondents that they had no objection if the respondents went ahead with the production of the said serial and merely requested the respondents that the title of the said serial yeh jo hai zindagi may not be used by the respondents. in the meanwhile the respondents contended that m s brook bond ltd who wanted to link up their commercial with 13 episodes and agreed to pay and paid the ruling market price. on these grounds the respondents contended that the suit of the petitioners is misconceived malicious and baseless and is liable to be dismissed. the respondents contended that on no occasion the petitioners acted as a producer and even the contract was signed by the petitioners as an advertiser and by the respondent no 1 as an approved agent. the respondents strongly contended that the serial hum log was produced by the petitioners in collaboration with m s concept advertisers. the trial court raised as many as 12 issues and they are as follows 1 is it proved that this court has no pecuniary jurisdiction to entertain and try this suit. the plaintiffs prove that the t v serial entitled yeh jo hai zindagi was produced by the defendant nos 1 to 4 as agents and the said serial made by defendant nos 1 to 4 in the course of their employment with the plaintiffs as alleged. 3 do the plaintiffs prove that the entire serial rights including the excluding the exclusive right to use the title thereof belong to the plaintiffs as alleged. 4 are defendant nos 1 to 4 entitled to deny the ownership of the plaintiffs of the film. yeh jo hai zindagi in view of exhibits a b and e colly to the plaint. the defendants prove that the plaintiffs are not the owners of the copyright of the tv serial film viz. yeh jo hai zindagi within the meaning of s 17 of the copyright act. the defendant nos 1 to 4 prove that it was intended between the parties that copyrights in respect of the said film should vest exclusively with the defendants or that the right of ownership was waived by the plaintiffs. 7 does. the suit suffer from non joinder of necessary parties. the suit not maintainable against defendant no 5 for failure to give notice u s 80 of cpc. 9 are. the plaintiffs entitled to the declaration sought. 10 are. the plaintiffs entitled to permanent injuction as prayed for. 11 to what relief if any are the plaintiffs entitled. 12 what order. the trial court found that the petitioners have not been able to prove that the tv serial yeh jo hai zindagi was produced by defendants nos 1 to 4 as agents in the course of their employment as the agent of the petitioners as contended in the suit. the petitioners were also not able to prove that the entire serial rights including the exclusive right to use the title thereof belonged to the petitioners as alleged. it was also held that the respondents nos 1 to 4 are entitled to deny the ownership of the petitioners of the film yeh jo hai zindagi in view of exhibits a b and e produced in the case. it was also held that the respondents proved that the petitioners are not the owners of the copy right of the tv serial film viz. yeh jo hai zindagi within the meaning of s 17 of the copy right act and it was intended between the parties that copy rights in respect of the said film should vest exclusively with the respondents or that the rights of ownership was waived by the petitioners. after examining the oral and documentary evidence on record it is disclosed that prior to letter sent on 11 july 1984 the petitioners were acquainted even with the format of the suit serial they did not have any connection with the suit serial till that date and relied upon the wording used therein to the effect that you and mr g k pendharkar are requested to join mr oberoi and his creative team when the format of the proposed half and hour sponsored programme shall be presented to you. that was the first occasion when the format was presented to the petitioners. it was also on record that the shri g k pendharkar of the petitioners and respondent no 2 had long standing relations with each other and they had already done a lot of advertising works for the petitioners before the production of the suit serial. exhibit g 1 which is exhibit 27 a in the petitioners compilation is a letter written by shri s p agrawal controller of programmes of doordarshan to respondent no 1m s art commercia with reference to the format for the proposed serial of half and hour duration tentatively titled musibat hai serial sent to them on 13 july 1984 since the letter was addressed to m s art commercia in which the proposal was accepted for production of the serial and the first episode was to be sent for preview and approval which would be given only after seeing the recording of the first episode. that letter had been addressed to respondent no 1m s art commercia. the trial court felt that it was addressed not to the petitioners but to the respondents alone. the trial court also relied on exhibit c 1 which indicated that the respondents were submitting a format for the serial which was to be registered on behalf of the client m s vicco laboratories. the learned judge of the trial court took the view that this letter nowhere mentioned that the respondents wanted to register their format on behalf of their producers which is consistent with the modern norms of advertising. the trial court ultimately came to the conclusion that the spade work on the production of the suit serial had already started before 11 july 1984 and on that day for the first time film was presented to the petitioners. it was therefore found that there was no copy right attached to any idea but copy right is attached to the work and what is important is that not only the idea of producing the suit serial on tv came to the mind of respondent no 2 but he had already started working on it in advance and forwarded it to doordarshan for its approval. the trial court after examining exhibits c 1e 1f 1 p 1 found that the proposal was for 52 episodes and was accepted by the doordarshan while the case put forth on behalf of the appellants is that the original agreement was to have 27 episodes and having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes. the evidence was found to be inconsistent with the theory put forth by the petitioners that they are producers of the suit serial and if it were to hold otherwise the agreement or arrangement with the respondents was only for 26 episodes whereas the sponsorship was for 52 episodes. the trial court examined in detail the letter dated 19 july 1984 exhibit f 1 written by shri g k pendharkar of the petitioners and concluded that averments made in the plaint stated that the original agreement was to have 27 episodes but having regard to the popularity of the serial programme the petitioners decided to increase the said serial to 52 episodes. in one of the contracts exhibit h 1 the wording used is as under sponsorship of programme of 25 mts duration produced by sponsor entitled yeh jo hai zindagi including 2 mts free commercial time. relying upon this letter emphasis was laid on the words produced by sponsors whether two capacities sponsor and producer can co exist in one and the same person or not has been examined and the trial court noted that the wording had been borrowed from the tariff card and tariff card also indicated what are the categories of the advertisers and rates thereof. it is held that words produced by sponsors would not mean that the sponsors themselves are the producers of the said programmes as is clear from the tariff card. the trial court proceeded thereafter to examine the payments made in regard to production of the serial. thus it was found that the first 26 episodes the amount per episode paid by the petitioners was rs 120000 and each bill contained the expression service charges which was stated by the appellants that the respondents acted as agents of the petitioners for production of suit serial. on proper construction of the bills the trial court rejected the contention that these bills and payments as showing that they had borne the costs of production of the suit serial and therefore they are the producers. inasmuch as the respondents could not claim any amount at random details regarding expenditure were included in the bills and therefore it is the sponsor 's price for sponsoring the suit serial. strong reliance was placed upon certain circumstances namely that the format had been approved by the petitioners only on 11 july 1984 and pw 1 admitted that in view of the bill the entry claiming deduction made by the petitioners in their accounts in the financial year ending on 30 march 1984 that the amount was not to be paid for all 26 episodes or even thereafter in lump sum and the bill for 26 episodes enabled petitioners to claim deduction for the entire amount without actual payment in financial year 1983 84 that the entry made for the financial year 1983 84 was beneficial to the petitioners that there was no ceiling on advertising expenditure and it was introduced from 1 april 1984 onwards the plaintiff did not produce the account books to show if the deduction in respect of the entire amount was claimed or not though they were repeatedly called upon to produce them. the trial court was conscious enough not to enter into the controversy whether during the particular account year ending on 31 march 1984 the advertising expenditure was fully exempted from tax or that there was disallowance of 20 per cent on that point and the decision regarding income tax deductions is not necessary as there is enough other material to show that the said bill was ante date. the change in the title from 55th episode for vicco laboratories was introduced. their contention was that there was a protest from the petitioners and as a result thereof this change took place. the 55th episode was telecast sometime at the end of november or beginning of december 1985 and thus there was a time gap of 78 months between the protest and the telecast of the 55th episode. therefore it can not be said that there is any communication between the same. the trial court also noticed that in respect of both the advertisements and also in respect of suit serial the petitioners paid to the respondent nos 5 and 6 amount which was to be the maximum amount. thus the profits or loss was of the respondents and there is element of liability to render account was missing and thus there was no question of respondents being the agents of the petitioners within the meaning of s 182 of the indian contract act. the suit serial was produced by the respondents as agents of the petitioners was false. the facts emerging in the case indicate that the petitioners had joined the production of the suit serial after some concrete beginning had been made like recording of the title song the conceiving of the title and format of the suit serial etc. the trial court summed up the position that the two capacities sponsor and producer can not co exist in one and the same person. if the documents are interpreted that the petitioners are the sponsors as well as the producers it would lead to absurd results. thus the trial court proceeded to uphold the contentions raised on behalf of the respondents to dismiss the suit. on appeal the high court re examined the matter and on examination of the pleadings the contentions put forth before the court the evidence on record and the findings recorded by the trial court concluded that the findings recorded by the trial court are proper. in doing so the high court noticed that the admitted position in the pleadings and the oral evidence is that the petitioners agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had made firm commitment to doordarshan to that effect and this circumstance militates against the respondents having undertaken the production at the behest or at the request of the petitioners. the high court observed that the petitioners had no knowledge of the doordarshan scheme regarding the sponsored programme and linking of 2 minutes advertisement and agreed with the findings of the trial court that it is improbable for the respondents to have agreed to reduce its income in the form of commission and undertake the responsible job of production of the serial. it was stated that certain bills had been given to the petitioners to suit their convenience in tax matters and there was no such bill submitted to the petitioners by the respondents when the petitioner had agreed to extend the sponsorship from episodes nos 27 to 52 and noticed the nature of the system of accounting maintained by them and held that the petitioners had got deductions in respect of the entire amount of the bill in the year which ended on 31 march 1984. the high court also noticed the circumstance of respondent no 2 's name appearing as producer in the titles of the suit serial and the petitioners did not do anything by way of protest or other objection or take steps to withhold payment of the respondents which in the normal course would have been done and therefore the explanation now sought to be offered by the petitioners in the form of a written protest was devoid of any substance. the explanation given by the petitioners that they were busy in the shootings did not carry much weight with the high court. the high court also examined the scope of s 17 of the copyright act and the ingredients thereof not having been established the high court held that no claim could be based on the same and thus agreed with the findings recorded by the trial court and dismissed the appeal. in this special leave petition u art 136 of the constitution the contentions raised before the high court are reiterated particularly as to the effect of s 17 of the copyright act and whether the correspondence on record would not indicate that they were entitled to ownership and copyright in respect of the tv programme yeh jo hai zindagi. the learned counsel for the petitioners strongly relied upon the following documents 1 the cost estimate. 2 the bills of cost of production. 3 letters dated 14 december 1984 and 15 november 1985. 4 contracts with doordarshan. 5 contractd with esquire distributing servicing pvt ltd. we have carefully considered the contentions urged on behalf of the petitioners. we are not satisfied that the petitioners have made out a case for consideration by this court. the matter rests purely upon the appreciation of evidence on record and does not give rise to any question of such importance as to be decided by this court u art 136 of the constitution. it is clear from the findings recorded by the trial court and the appellate court 1 that the respondents have not undertaken the production of the said serial at the instance of the petitioners. g k pendharkar the managing director of petitioner no 1 was asked to come to view the format of the programme and the petitioners were not even acquainted with the format of the serial while the respondents had taken concrete steps in this regard prior to the letter dated 11 july 1984. 2 that the petitioners had agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had given a firm commitment to that effect to doordarshan as is clear from the letter dated 12 july 1984 sent by the respondents to doordarshan. the trial court thus rightly noted that there was no agency between the parties. 3 that the titles of each episode indicated that respondent no 2 is the producer of the said serial and the petitioners are only the sponsors. as late as on 22 april 1985the petitioners communicated their displeasure on this display in the episodes as to the titles. however the titles continued to show mr s s oberoi as the producer of the serial and the petitioners did not withhold payments. 4 that the courts below have refuted the claim of the petitioners that the bill dated 19 march 1984 establishes the fact that the production work had been started by the respondents at the behest of the petitioners. it has been proved that the said bill was ante dated and raised by the respondents in july1984 ostensibly for the purpose of benefiting the petitioners for their obtaining tax concessions. 5 that the doordarshan which have been impleaded as a party in their written statement stated that they recognize the respondents as producers of the said serial and recognize the petitioners as sponsors only. 6 that the evidence of mr s s gill who gave evidence on behalf of the information broadcasting ministry that he was not acquainted with mr pendharkar and that doordarshan had no direct connection with the petitioners but only with the respondents as producers or the director stood un impeached. in his further evidence mr gill stated that some time in the month of may june1984 he had met kundan shah and requested to make a comedy serial for doordarshan which clearly indicated that it is only the respondents who were dealing with doordarshan. 7 that the video rights were assigned to esquire distributing servicing pvt. ltd by the respondents pursuant to letters dated 14 december 1984 and 15 november 1985 and had received royalty for the video rights and the original u matic cassettes were returned to them by esquire distributing servicing pvt. ltd as their property. 8 that there was no transfer of rights in favour of the petitioners by the respondents in the aforesaid letters and no consideration whatsoever was paid to the respondents for issuing the said letters which have no legal consequences and it was after the petitioners received the letter dated 19 october 1985 from esquire distributing servicing pvt. ltd that the respondents were asked by the petitioners to issue another letter in this regard. thus the pleadings and the evidence on record clearly indicated that the respondents were not the agents of the petitioners for the purpose of producing the said serial. the aggregate amount of rs 76 50 lakhs which was paid to the respondents for 60 episodes is not the amount for cost of production but the fixed price for sponsoring the said serial in order to link up their advertisement with the serial and avail substantial benefit of concessional rate under the scheme envisaged by doordarshan. the respondents were not liable to render accounts to the petitioners who paid them a fixed sum for sponsoring the programme. if the expenses were less the petitioners did not ask for a refund and the profit or loss was entirely of the respondents. it is clear that the bills that have been raised were only to accommodate the petitioners from the circumstances narrated above. however the learned counsel for the petitioners made elaborate reference to the income tax act1961 and the provisions whether such availment of benefit could be taken or not pursuant to the amendment effected to the provisions relating to computation of business income at different stages may not be very germane to the present case. it is probable that the respondents had obliged the petitioners by issuing these bills because the bills can not be read in isolation but with reference to surrounding circumstances. therefore the view taken by the courts below in this regard appears to be correct. so far as the contentions raised on the basis of s 17 of the copyright act is concerned it is clear that the petitioners were not able to establish that the respondent nos 1 to 4 produced the said serial 1 as the agents of the petitioners 2 in the course of their employment with the petitioners 3 for valuable consideration paid by the petitioners to them and iv at the instance of the petitioners. when these factors had not been established and the suit is itself not dependent on the interpretation of s 17 of the copyright act pleadings and issues raised did not attract the same. on appreciation of evidence the courts below have come to the conclusion that the respondents did not make the said serial for valuable consideration at the instance of the petitioners and in view of the findings of fact the claim of copyright or ownership in respect of the serial u s 17b and c would not arise at all. thus we find absolutely no merit in this petition. we decline to interfere with the order made by the high court affirming the decree of the trial court. petition dismissed.

FACTS the petitioners carried on business as manufacturers of ayurvedic pharmaceuticals products,which were sold under the brand name of "vicco" and have acquired substantial reputation in the market. the 1st respondent are an advertising agency and have been the advertising agents in respect of the products manufactured by the petitioners as aforesaid for number of years. the 2nd respondent is a director and/or partner of the 1st respondent and has mainly dealt with the petitioners on behalf of the 1st respondent. respondents nos.3 & 4 ae proprietary concerns of respondent no.2. the 5th respondent is the union of india and has been joined as the authority concerning television in india in the name and style of doordarshan,which is a television media. the petitioners had employed the respondent nos.1 to 4 as their advertising agents through the petitioners' sister concern "m/s modern advertising agency" and "uta advertising agency" and were dealing with the respondent no.1 mainly through the petitioners managing director,g.k.pendharkar. in 1984,doordarshan in order to popularize sponsored serial,undertook the production of a serial by the name "humlog". the petitioners agreed to pay the entire costs of the said production to the said advertising agency and requested it to look into the matter,employed various persons on behalf of the petitioners and prepare a suitable serial for them. pursuant to the said arrangement,the respondent nos.1 to 4 as the agents of the petitioners prepared at the costs and expenses of the petitioners,a serial entitled "yeh jo hai zindagi". the petitioners claimed that as a result of the employment of the respondent nos.1 to 4 and the finances paid by them the petitioners are the owners of the said serial "yeh jo hai zindagi" and the title thereof. "yeh jo hai zindagi" had gained popularity and had become one of the most exclusive and popular serial. the petitioners claimed that the exclusive right to use the title thereof belonged to them and the 2nd episode of "yeh jo hai zindagi" was telecast without the name of the petitioners being mentioned as sponsors nor was their advertisement shown. this was due to the negligence of the respondent nos.1 to 4. but the respondents recovered the cost of production from the petitioners. further the said respondents had been recovering the cost of production well in advance of the serial episodes being actually produced. the petitioners claimed that they were the real producers and owners of the said serial "yeh jo hai zindagi" and the petitioners to the knowledge of the respondents have entered into an agreement assigning the video rights in the said serial to one m/s esquire distributing and servicing pvt.ltd. 1st and 2nd respondents confirmed that the petitioners have all t.v.and video rights of the sponsored programme in hindi "yeh jo hai zindagi" and vest with the petitioners. though original agreement was to have 27 episodes but having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes and the petitioners informed respondent nos.1 and 2 that in the title of the 27th and 28th episodes it has been stated that it is presented by "oberoi films". some time in may 1985,the 1st respondent proposed to the petitioners that some other products should be tied up with the serial "yeh jo hai zindagi". however,the petitioners were not interested in the same as they wanted the serial to project their products only exclusively and did not agree to any other products being tied up with the said serial. the respondents alleged that they were losing rs.50,000/-to rs.75,000/-per episode and indicated that they wanted to get a new sponsor. the petitioners informed the 1st and 2nd respondents that it was not possible to increase the costs of production for the episodes and that in the circumstances,the production of the serial may stop. it was also pointed out that the name "yeh jo hai zindagi" is associated with the "vicco laboratories" and that if they wanted to obtain another sponsor they could produce a new serial under a different name. the petitioners apprehended that the respondent nos.1 to 3 intended to produce further episodes under the title "yeh jo hai zindagi" making use of the same format as the earlier serial for and on behalf of the third party.the petitioners reserved their right to sue for damages in terms of order ii,rule 2 cpc. ARGUMENT the copyright in the said serial would rest exclusively in the respondents and not in the petitioners. thus the respondents' name was shown in the title of the said serial as the producer thereof right from the beginning of the said serial but the petitioners did not protest against the same. even assuming but without admitting that even if the petitioners are the owners of the copyright in respect of the said serial as on the date of the suit they ceased to be such owners in view of the fact that these rights vested in them before the institution of the suit and they have acquiesced in the exercise of the said right by these respondents by their conduct as referred to earlier. it was also contended that the 2nd respondent is an artist and a film maker and has been in the field of film making for the past 20 years. the petitioners by their letter turned down the respondents' demand and informed the respondents that they had no objection if the respondents went ahead with the production of the said serial and merely requested the respondents that the title of the said serial "yeh jo hai zindagi" may not be used by the respondents. in the meanwhile,the respondents contended that m/s brook bond ltd.who wanted to link up their commercial with 13 episodes and agreed to pay and paid the ruling market price. on these grounds,the respondents contended that the suit of the petitioners is misconceived,malicious and baseless and is liable to be dismissed. ISSUE in this special leave petition u/art.136 of the constitution,the contentions raised before the high court are reiterated particularly as to the effect of s.17 of the copyright act and whether the correspondence on record would not indicate that they were entitled to ownership and copyright in respect of the tv programme 'yeh jo hai zindagi. ANALYSIS there was no copy right attached to any idea,but copy right is attached to the work and what is important is that not only the idea of producing the suit serial on tv came to the mind of respondent no.2 but he had already started working on it in advance and forwarded it to doordarshan for its approval. the respondents were not the agents of the petitioners for the purpose of producing the said serial. the aggregate amount of rs.76.50 lakhs which was paid to the respondents for 60 episodes is not the amount for cost of production but the fixed price for sponsoring the said serial in order to link up their advertisement with the serial and avail substantial benefit of concessional rate under the scheme envisaged by doordarshan. the petitioners had agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had given a firm commitment to that effect to doordarshan. that the titles of each episode indicated that respondent no.2 is the producer of the said serial and the petitioners are only the sponsors. however,the titles continued to show mr.s.s.oberoi as the producer of the serial and the petitioners did not withhold payments. the production work had been started by the respondents at the behest of the petitioners. doordarshan recognizes the respondents as producers of the said serial and recognize the petitioners as sponsors only. there was no transfer of rights in favour of the petitioners by the respondents in the aforesaid letters and no consideration whatsoever was paid to the respondents for issuing the said letters which have no legal consequences. the respondents were not liable to render accounts to the petitioners who paid them a fixed sum for sponsoring the programme. if the expenses were less,the petitioners did not ask for a refund and the profit or loss was entirely of the respondents. it is clear that the bills that have been raised were only to accommodate the petitioners from the circumstances narrated above. it is probable that the respondents had obliged the petitioners by issuing these bills because the bills cannot be read in isolation but with reference to surrounding circumstances. where s.17 of the copyright act is concerned,it is clear that the petitioners were not able to establish that the respondent nos.1 to 4 produced the said serial (1) as the agents of the petitioners; (2) in the course of their employment with the petitioners; (3) for valuable consideration paid by the petitioners to them; and (iv) at the instance of the petitioners. when these factors had not been established and the suit is itself not dependent on the interpretation of s.17 of the copyright act,pleadings and issues raised did not attract the same. on appreciation of evidence,the court has come to the conclusion that the respondents did not make the said serial for valuable consideration at the instance of the petitioners and in view of the findings of fact,the claim of copyright or ownership in respect of the serial u/s.17(b) and (c) would not arise at all.

FACTS the petitioners carried on business as manufacturers of ayurvedic pharmaceuticals products,which were sold under the brand name of "vicco" and have acquired substantial reputation in the market. the 1st respondent are an advertising agency and have been the advertising agents in respect of the products manufactured by the petitioners as aforesaid for number of years. the 2nd respondent is a director and/or partner of the 1st respondent and has mainly dealt with the petitioners on behalf of the 1st respondent. respondents nos.3 & 4 are proprietary concerns of respondent no.2. the 5th respondent is the union of india and has been joined as the authority concerning television in india in the name and style of doordarshan,which is a television media. the petitioners had employed the respondent nos.1 to 4 as their advertising agents through the petitioners' sister concern "m/s modern advertising agency" and "uta advertising agency" and were dealing with the respondent no.1 mainly through the petitioners managing director,g.k.pendharkar. in 1984,doordarshan in order to popularize sponsored serial,undertook the production of a serial by the name "humlog". the petitioners are also pioneers in making use of doordarshan for advertising their products through the agency of the 1st respondent,approached the 1st respondent to act as their agents for the purpose of producing a serial which would be shown as petitioners' sponsored programme. the petitioners agreed to pay the entire costs of the said production to the said advertising agency and requested it to look into the matter,employed various persons on behalf of the petitioners and prepare a suitable serial for them. pursuant to the said arrangement,the respondent nos.1 to 4 as the agents of the petitioners prepared at the costs and expenses of the petitioners,a serial entitled "yeh jo hai zindagi". the petitioners claimed that as a result of the employment of the respondent nos.1 to 4 and the finances paid by them the petitioners are the owners of the said serial "yeh jo hai zindagi" and the title thereof. the first and second respondents under the arrangement produced about 60 episodes and the petitioners have spent a crore of rupees for the products and telecast of the said episodes and have also spent large sums of money on advertising to popularize the said programme. "yeh jo hai zindagi" had gained popularity and had become one of the most exclusive and popular serial. the petitioners claimed that the exclusive right to use the title thereof belonged to them and the 2nd episode of "yeh jo hai zindagi" was telecast without the name of the petitioners being mentioned as sponsors nor was their advertisement shown. this was due to the negligence of the respondent nos.1 to 4. but the respondents recovered the cost of production from the petitioners. further the said respondents had been recovering the cost of production well in advance of the serial episodes being actually produced. the petitioners claimed that they were the real producers and owners of the said serial "yeh jo hai zindagi" and the petitioners to the knowledge of the respondents have entered into an agreement assigning the video rights in the said serial to one m/s esquire distributing and servicing pvt.ltd. the petitioners though not required to do so,made an ex gratia payment to respondent nos.1 to 4 of a portion of the royalty received by them from the said m/s esquire distributing and servicing pvt.ltd.. 1st and 2nd respondents confirmed that the petitioners have all t.v.and video rights of the sponsored programme in hindi "yeh jo hai zindagi" and vest with the petitioners. though original agreement was to have 27 episodes but having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes and the petitioners informed respondent nos.1 and 2 that in the title of the 27th and 28th episodes it has been stated that it is presented by "oberoi films". some time in may 1985,the 1st respondent proposed to the petitioners that some other products should be tied up with the serial "yeh jo hai zindagi". however,the petitioners were not interested in the same as they wanted the serial to project their products only exclusively and did not agree to any other products being tied up with the said serial. the respondents alleged that they were losing rs.50,000/-to rs.75,000/-per episode and indicated that they wanted to get a new sponsor. the petitioners informed the 1st and 2nd respondents that it was not possible to increase the costs of production for the episodes and that in the circumstances,the production of the serial may stop. it was also pointed out that the name "yeh jo hai zindagi" is associated with the "vicco laboratories" and that if they wanted to obtain another sponsor they could produce a new serial under a different name. the petitioners apprehended that the respondent nos.1 to 3 intended to produce further episodes under the title "yeh jo hai zindagi" making use of the same format as the earlier serial for and on behalf of the third party.the petitioners reserved their right to sue for damages in terms of order ii,rule 2 cpc. ARGUMENT the copyright in the said serial would rest exclusively in the respondents and not in the petitioners. thus the respondents' name was shown in the title of the said serial as the producer thereof right from the beginning of the said serial but the petitioners did not protest against the same. even assuming but without admitting that even if the petitioners are the owners of the copyright in respect of the said serial as on the date of the suit they ceased to be such owners in view of the fact that these rights vested in them before the institution of the suit and they have acquiesced in the exercise of the said right by these respondents by their conduct as referred to earlier. it was also contended that the 2nd respondent is an artist and a film maker and has been in the field of film making for the past 20 years. the petitioners by their letter turned down the respondents' demand and informed the respondents that they had no objection if the respondents went ahead with the production of the said serial and merely requested the respondents that the title of the said serial "yeh jo hai zindagi" may not be used by the respondents. in the meanwhile,the respondents contended that m/s brook bond ltd.who wanted to link up their commercial with 13 episodes and agreed to pay and paid the ruling market price. on these grounds,the respondents contended that the suit of the petitioners is misconceived,malicious and baseless and is liable to be dismissed. ISSUE the effect of s.17 of the copyright act and whether the correspondence on record would not indicate that they were entitled to ownership and copyright in respect of the tv programme 'yeh jo hai zindagi'. ANALYSIS there was no copy right attached to any idea,but copy right is attached to the work and what is important is that not only the idea of producing the suit serial on tv came to the mind of respondent no.2 but he had already started working on it in advance and forwarded it to doordarshan for its approval. the respondents were not the agents of the petitioners for the purpose of producing the said serial. the aggregate amount of rs.76.50 lakhs which was paid to the respondents for 60 episodes is not the amount for cost of production but the fixed price for sponsoring the said serial in order to link up their advertisement with the serial and avail substantial benefit of concessional rate under the scheme envisaged by doordarshan. the respondents have not undertaken the production of the said serial at the instance of the petitioners. the petitioners had agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had given a firm commitment to that effect to doordarshan. that the titles of each episode indicated that respondent no.2 is the producer of the said serial and the petitioners are only the sponsors. however,the titles continued to show mr.s.s.oberoi as the producer of the serial and the petitioners did not withhold payments. the production work had been started by the respondents at the behest of the petitioners. doordarshan recognizes the respondents as producers of the said serial and recognize the petitioners as sponsors only. there was no transfer of rights in favour of the petitioners by the respondents in the aforesaid letters and no consideration whatsoever was paid to the respondents for issuing the said letters which have no legal consequences. the respondents were not liable to render accounts to the petitioners who paid them a fixed sum for sponsoring the programme. if the expenses were less,the petitioners did not ask for a refund and the profit or loss was entirely of the respondents. it is clear that the bills that have been raised were only to accommodate the petitioners from the circumstances narrated above. it is probable that the respondents had obliged the petitioners by issuing these bills because the bills cannot be read in isolation but with reference to surrounding circumstances. where s.17 of the copyright act is concerned,it is clear that the petitioners were not able to establish that the respondent nos.1 to 4 produced the said serial (1) as the agents of the petitioners; (2) in the course of their employment with the petitioners; (3) for valuable consideration paid by the petitioners to them; and (iv) at the instance of the petitioners. when these factors had not been established and the suit is itself not dependent on the interpretation of s.17 of the copyright act,pleadings and issues raised did not attract the same. on appreciation of evidence,the court has come to the conclusion that the respondents did not make the said serial for valuable consideration at the instance of the petitioners and in view of the findings of fact,the claim of copyright or ownership in respect of the serial u/s.17(b) and (c) would not arise at all.

these two appeals involve identical questions and therefore are disposed of by this common judgment after noticing the factual position so far as they are relevant. the appellants question correctness of the judgment rendered by a division bench of the madras high court which held that the withdrawal of benefits extended to the appellants as subsidy was in order. the appellants questioned legality or the g o ms No 989 dated 1 9 1988 directing discontinuance of purchase tax exemption in case of mills which exceeded the ceiling of rs 300 lakes during the period of five years and government letter dated 28 12 1988 which made the aforesaid g o ms No 989 of 1 9 1988 operative retrospectively from 1 4 1988. initially the writ petitions were filed before the high court but after constitution of the tamil nadu taxation special tribunal hereinafter referred to as the tribunal the writ petitions were transferred to the tribunal which held that on application of the principles of promissory estoppel and legitimate expectation the withdrawal of benefit was not sustainable in law. the state questioned correctness of the judgment before the high court which as noted above held the g o ms and the govt. letter to be valid reversing the conclusions arrived at by the tribunal. the judgment forms subject matter of challenge in these appeals. in support of the appeals the primary stands raised by the appellants are. the doctrines of promissory estoppel and legitimate expectation were applicable to the facts of the case. there was no material to show existence of any overriding public interest to rule out application of the aforesaid doctrine there was no scope for retrospective withdrawal. in any event before withdrawal of the benefits no opportunity of hearing was granted. the high court erroneously came to hold that the state government had not filed any counter. the materials which were produced before the high court and on the basis of which it is decided that the decision of the government is in order were not even pleaded in the pleadings and during arguments. the appellants were taken by surprise by production of materials which were not even disclosed to the appellants. the contents of the files which were produced before the high court and on which reliance was placed to hold against the appellants are not known to the appellants. in other words there was clear violation of the principles of natural justice. the government 's letter dated 28 12 1988 refers to some decision but in the absence of any authentication as required under article 166 of the constitution of india 1950 in short the constitution the same is ineffective. in any event the retrospective withdrawal of the benefit on the basis of an executive decision is impermissible. in response learned counsel for the respondent state submitted that the appellants have failed to adduce any evidence or material to show that were in any way induced by any governmental action to set up industries. in fact the government of tamil nadu vide g o ms. No 1294 dated 24 10 1975 granted exemption from purchase tax on sugarcane in favour of sugar mills established in co operative and public sectors in the form of annual subsidy equivalent to purchase tax on sugarcane. there was no scope for any mis understanding that it applied to any private sector participation in the sphere of sugar manufacturing. the commercial productions were started in case of appellants in c a No 86062002 i e ponni sugars erode ltd v govt. of tamil nadu ors on 27 1 1984 and in c a 86052002 i e bannari amman sugars ltd v commercial tax officer. on 22 1 1986. the appellants only made representation to government subsequently claiming exemption at par with the cooperative and public sector mills. as there was no inducement or assurance the question of any promissory estoppel did not arise. so far as legitimate expectation aspect is concerned it is too well known that the benefit extended can be withdrawn and with this knowledge if the units are set up the principle of legitimate expectation does not apply. the high court recorded the following findings on the factual aspects. the respondents have established their units prior to the government orders granting the subsidy and they have no vested right to claim exemption. no inducement was made in the government orders to establish the units. the respondents have not acted on the basis of the government orders for establishing the units. the grant of subsidy is a concession and the government has got good reasons for modifying the scheme in public interest. no prejudice is caused to the respondents since the scheme was interested to make the units viable and the modified scheme provides for safeguards to that extent. the order granting subsidy can be withdrawn in public interest. the government has exercised their right to modify the scheme in the interest of public revenue. the stand taken by the present appellants before the tribunal and the high court was rejected. with reference to the files produced certain factual conclusions were arrived at the correctness of those form the core challenge in these appeals. estoppel is a rule of equity which has gained new dismensions in recent years. a new class of estoppel has come to be recognized by the courts in this country as well as in england. the doctrine of promissory estoppel has assumed importance in recent years though it was dimly noticed in some of the earlier cases. the leading case on the subject is central london property trust ltd v high trees house ltd 1947 1 k b 130. the rule laid down in high trees case supra again came up for consideration before the king 's bench in combe v bombe 1951 2 k b 215. therein the court ruled that the principle stated in high trees 's case supra is that 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 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 himself has so introduced even though it is not supported in point of law by any consideration but only by his word. but that principle does not create any cause of action which did not exist before so that where a promise is made which is not supported by any consideration the promise can not bring an action on the basis of that promise. the principle enunciated in the high trees case supra was also recognized by the house of lords in tool metal manufacturing co ltd v tungsten electric co ltd 1955. all e r 657 1955 1 w l r 761. that principle was adopted by this court in union of india v indo afghan agencies ltd air 1968. sc 718 1967 indlaw sc 411 and turner morrison and co ltd v hungerford investment trust ltd 1972 1 scc 857 1972 indlaw sc 190. doctrine of promissory estoppel has been envolved by the courts on the principles of equity to avoid injustice. promissory estoppel is defined in black 's law distionary as an estoppel which arises when there is a promise which promissor should reasonable expect to induce action or forbearance of a definite and substantial character on the part of promisee and which does include such action or forbearance and such promise is binding if injustice can be avoided only by enforcement of promise. so far as this court is concerned it invoked the doctrine in indo afghan agencies 's case 1967 indlaw sc 411 supra in which is was inter alia laid down that even though the case would not fall within the terms of section 115 of the indian evidence act 1872 in short the evidence act which enacts the rule of estoppel it would still be open to a party who had acted on a representation made by the government to claim that the government should be bound to carry out the promise made by it even though the promise was not recorded in the form of a formal contract as required by article 299 of the constitution. see century spinning co v ulhasnagar municipal council air 1971. sc 1021 1970 indlaw sc 341 radhakrishna v state of bihar air 1977. sc 1496 1977 indlaw sc 282 motilal padampat sugar mills co ltd v state of u p 1979 2 scc 409 1978 indlaw sc 56 union of india v godfrey philips indian ltd 1985 4 scc 369 1985 indlaw sc 275 and dr ashok kumar maheshwari v state of u p another 1998 2 supreme 100 1998 indlaw sc 1376. in the backdrop let us travel a little distance into the past to understand the evolution of the doctrine of promissory estoppel. dixon j an australian jurists in grundt v great boulder gold mines prorietary ltd 1939 59 clr 641 aust laid down as under it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. although substantially such a statement is correct and leads to no misunderstanding it does not bring out clearly the basal purpose of the doctrine. that purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. this means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumptions were deserted that led to it. the principle set out above was reiterated by lord denning in high trees 's case supra. this principle has been evolved by equity to avoid injustice. it is nether in the realm of contract nor in the realm of estoppel. its object is to interpose equity shorn of its form to mitigate the rigour of strict law as noted in anglo afghan aencies 's case1967 indlaw sc 411 supra and sharma transport represented by d p sharma v government of a p and others 2002 2 scc 188 2001 indlaw sc 19917. no vested right as to tax holding is acquired by a person who is granted concession. if any concession has been given it can be withdrawn at any time and no time limit should be insisted upon before it was withdrawn. the rule of promissory estoppel can be invoked only if on the basis of representation made by the government the industry was established to avail benefit if of exemption. in kasinka trading and anr v union of india and anr. 1995 1 scc 274 1994 indlaw sc 2183. it was held that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice. a person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. the expectation may arise either from a representation or promise made by the authority including an implied representation or from consistent past practice. the doctrine of legitimate expectation has an important place in the developing law of judicial review. it is however not necessary to explore the doctrine in this case it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who can not point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right to a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. the doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallized right as such involved. the protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. in other words where a person 's legitimate expectation in not fulfilled by taking a particular decision then decision maker should justify the denial of such expectation by showing some overriding public interest. see union of india and others. v hindustan development corporation and others air 1994. sc 9981993 indlaw sc 1085. while the discretion to change the policy in exercise of the executive power when not trammelled by any statute or rule is wide enough what is imperative and implicit in terms of article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily or by any ulterior criteria. the wide sweep of article 14 and the requirement of every state action qualifying for its validity on this touchstone irrespective of the field of activity of the state is an accepted tenet. the basic requirement of article 14 is fairness in action by the state and non arbitrariness in essence and substance is the heart beat of fair play. actions are amenable in the panorama of judicial review only to the extent that the state must act validity for discernible reasons not whimsically for any ulterior purpose. the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. a question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. a basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so does if really satisfy the test of reasonableness. where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself small be labelled as arbitrary. every state action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. this court 's observations in g b mahajan v jalgaon municipal council air 1991 sc 1153 1990 indlaw sc 438 are kept out of lush field of administrative policy except where policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. but there has to be a word of caution. something overwhelming must appear before the court will intervene. that is and ought to be a difficult onus for an applicant to discharge. the courts are not very good at formulating or evaluating policy. sometimes when the courts have intervened on policy grounds the court 's view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. on the contrary curial views of policy have been subjected to stringent criticism. as professor wade points out in administrative law by h w r wade 6th edition there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. the reasonableness in administrative law must therefore distinguish between proper course and improper abuse of power. nor is the test court 's own standard of reasonableness as it might conceive it in a given situation. the point to note is that the thing is not unreasonable in the legal sense merely because the court thinks it to be unwise. in hindustan development corporation 's case1993 indlaw sc 1085 supra it was observed that decision taken by the authority must be found to be arbitrary unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. if it is a question of policy even by ways of change of old policy the courts can not intervene with the decision. in a given case whether there are such facts and circumstances giving rise to legitimate expectation would primarily be a question of fact. as was observed in punjab communications ltd v union of india of others air 1999 sc 1801 1999 indlaw sc 1548 the change in policy can defeat a substantive legitimate expectation if it can be justified on wednesbury reasonableness. the decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. it is therefore clear that the choice of police is for the decision maker and not the court. the legitimate substantive expectation merely permits the court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. a claim based on merely legitimate expectation without anything more can not ipso facto give a right. its uniqueness lies in the fact that it covers the entire span of time present past and future. how significant is the statement that today is tomorrows yesterday. the present is as we experience it the past is a present memory and future is a present expectation. for legal purposes expectation is not same as anticipation. legitimacy of an expectation can be inferred only if it is founded on the sanction of law. as observed in attorney general for new south wale v quinn 1990 64 australian ljr 327 to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. moreover the negotiation of a legitimate expectation falling short of a legal right is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. if a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary discriminatory unfair or biased gross abuse of power of violation of principles of natural justice the same can be questioned on the well known grounds attracting article 14 but a claim based on mere legitimate expectation without anything more can not ipso facto give a right to invoke these principles. it can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. it depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. it follows that the concept of legitimate expectation is not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits particularly when the elements of speculation and uncertainty are inherent in that very concept. as cautioned in attorney general for new south wale 's case the courts should restrain themselves and respect such claims duly to the legal limitations. it is a well meant caution. otherwise a resourceful litigant having vested interest in contract licences etc can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. the caution particularly in the changing scenario becomes all the more important. if the state acts within the bounds of reasonableness it would be legitimate to take into consideration the national priorities and adopt trade policies. as noted above the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. a restriction can not be said to be unreasonable merely because in a given case it operates harshly. in determining whether there is any unfairness involved the nature of the right alleged to have taken infringed the underlying purpose of the restriction imposed the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition the prevailing condition at the relevant time enter into judicial verdict the reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. see parbhani transport co operative society ltd v regional transport authority aurangabad and others air 1960. sc 9011960 indlaw sc 472 shree meenakshi mills ltd v union of india air 1974. sc 3651973 indlaw sc 291 hari chand sarda v mizo district council and another air 1967 sc 829 1966 indlaw sc 125 krishnan kakkanth v government of kerala and others air 1997. sc 128 1996 indlaw sc 1845 and union of india and another v international trading co and another 2003 5 scc 437 2003 indlaw sc 472. article 166 of the constitution deals with the conduct of government business. the said provision reads as follows 166. conduct of business of the government of a state 1 all executive action of the government of a state shall be expressed to be taken in the name of the governor. 2 orders and other instruments made and executed in the name of the governor shall be authenticated in such manner as may be specified in rules to be made by the governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the governor. the governor shall make rules for the more convenient transaction of the business of the government of the state and for the allocating among ministers of the said business in so far as it is not business with respect to which the governor is by or under this constitution required to act in his discretion. clause 1 requires that all executive action of the state government shall have to be taken in the name of the governor. further is no particular formula of words required for compliance with article 1661. what the court has to see is whether the substance of its requirement has been complied with. a constitution bench in r chitralekha etc. v state of mysore and ors. air 1964. sc 1823 1964 indlaw sc 103 held that the provisions of the article were only directory and not mandatory in character and if they were not complied with it could still be established as a question of fact that the impugned order was issued in fact by the state government or the governor. clause 1 does not prescribe how an executive action of the government is to be performed it only prescribes the mode under which such act is to be expressed. while clause 1 is in relation to the mode of expression clause 2 lays down the ways in which the order is to be authenticated. whether there is any government order in terms of article 166 has to be adjudicated from the factual background of each case. in order to invoke the doctrine of promissory estoppel clear sound and positive foundation must be laid in the petition itself by the party invoking and doctrine the bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the government would not be sufficient to press into aid the doctrine. the courts are bound to consider all aspects including the results sought to be achieved and the public good at large because while considering the applicability of the doctrine the courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the court. in shrijee sales corporation and anr v union of india 1997 3 scc 398 1996 indlaw sc 1561 it was observed that once public interest is accepted as the superior equity which can override individual equity the principle would be applicable even in cases where a period has been indicated for operation of the promise. if there is a supervening public equity the government would be allowed to change its stand and has the power to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. moreover the government is competent to rescind from the promise even if there is no manifest public interest involved provided no one is put in any adverse situation which can not be rectified. similar view was expressed in m s pawan alloys and casting pvt ltd meerut etc. v u p state electricity board and others air 1997. sc 3910 1997 indlaw sc 1364 and in sales tax officers and anr. v shree durga oil mills and anr. 1999 1 scc 573 1997 indlaw sc 1219 it was further held that the government could change its industrial policy if the situation so warranted and merely because the resolution was announced for a particular period it did not mean that the government could not amend and change the policy under any circumstances. if the party claiming application of the doctrine acted on the basis of a notification it should have known that such notification was liable to be amended or rescinded at any point of time if the government felt that it was necessary to do so in public interest. in view of the factual position recorded by the high court that at the point of time the appellants units were set up and the commercial production started there was no assurance or promise. the doctrine of promissory estoppel had no application to the facts of the case at that stage. we find no substance in the plea that before a policy decision is taken to amend or alter the promise indicated in any particular notification the beneficiary was to be granted an opportunity of hearing. such a plea is clearly unsustainable. while taking policy decision the government is not required to hear the persons who have been granted the benefit which is sought to be withdrawn. the question of legitimate expectation arises according to the appellants after the benefits were granted by the concerned g o ms. at this juncture we would like to take note to certain factual positions highlighted by the appellants which are practically undisputed by the respondents. contrary to what the high court has stated it appears from record that counter affidavits were filed. the reasons which have weighed with the high court to uphold the action of the state were not pleaded before the high court specifically and the high court cull out those from the files which were produced before it. though the appellants were not entitled to any opportunity of hearing before alteration of the benefits flowing from the notifications or withdrawal of any benefit yet when the state has not taken any specific stand justifying the withdrawal and the high court referred to the files to put its seal of proof notwithstanding non requirement for granting any opportunity before the withdrawal principles of natural justice certainly were applicable since the high court with reference to the files recorded findings on the basis thereof. as noted above no specific grounds or reasons were indicated to justify the withdrawal in the affidavits filed before the tribunal or the high court as the case may be. as the correctness of factual basis justifying withdrawal is in issue fair play certainly warranted grant of opportunity to the appellants to present its side of the picture. further a definite plea was taken that there was no scope for retrospective withdrawal of benefit by an executive order. the high court has not dealt with the issue. the same also needs to be examined. above being the position decision of the high court by placing reliance on the files to hold that the withdrawal was justified is not tenable in law and in the fitness of things the high court should hear the matter afresh and taken decision on those two issues. it is made clear that we have not expressed any opinion on those issues on the facts of the present case. it is to be noted that no privilege was claimed from production of the file as the files were produced before the high court and in fact the high court referred to the materials on the files to affirm state 's action. we direct that the state government if it so chooses shall file its further counter affidavits before the high court within six weeks from today indicating the reasons which warranted the withdrawal of the benefits extended. the plea of the appellants regarding legitimate expectation shall be considered by the high court in the light of materials to be placed by the respondents by affidavits as directed above. we make it clear that we have not expressed any opinion on the factual aspects except indicating the principles underlying legitimate expectation. another point which was specifically raised before the high court but has not been dealt by it is the legality of the action in directing retrospective withdrawal of the benefit by a letter of the government. whether the same is permissible in law has to be decided by the high court. to the aforesaid limited extent the matter is remitted to the high court for fresh consideration. the appeals are disposed of accordingly without any order as to costs. appeals disposed of.

FACTS the appellants question correctness of the judgment rendered by a division bench of the madras high court which held that the withdrawal of benefits extended to the appellants as subsidy was in order. the appellants questioned legality of the g.m.o directing discontinuance of purchase tax exemption in case of mills which exceeded the ceiling of rs. 300 lakes during the period of five years, and government letter which made the aforesaid g.m.o operative retrospectively. initially the writ petitions were filed before the high court, but after constitution of the tamil nadu taxation special tribunal (hereinafter referred to as the 'tribunal') the writ petitions were transferred to the tribunal which held that on application of the principles of promissory estoppel and legitimate expectation, the withdrawal of benefit was not sustainable in law. the state questioned correctness of the judgment before the high court which, as noted above, held the g.m.o and the govt. letter to be valid, reversing the conclusions arrived at by the tribunal. the judgment forms subject matter of challenge in these appeals. with reference to the files produced, certain factual conclusions were arrived at, the correctness of those form the core challenge in these appeals. a new class of estoppel has come to be recognized by the courts in this country as well as in england. the doctrine of 'promissory estoppel' has assumed importance in recent years though it was dimly noticed in some of the earlier cases. ARGUMENT the doctrines of promissory estoppel and legitimate expectation were applicable to the facts of the case. there was no material to show existence of any overriding public interest to rule out application of the aforesaid doctrine there was no scope for retrospective withdrawal. in any event, before withdrawal of the benefits, no opportunity of hearing was granted. the appellants have failed to adduce any evidence or material to show that were in any way induced by any governmental action to set up industries. ISSUE the question of legitimate expectation arises according to the appellants after the benefits were granted by the concerned g.m.os. further, a definite plea was taken that there was no scope for retrospective withdrawal of benefit by an executive order. ANALYSIS "promissory estoppel" is defined in black's law distionary as "an estoppel which arises when there is a promise which promissor should reasonable expect to induce action or forbearance of a definite and substantial character on the part of promisee, and which does include such action or forbearance, and such promise is binding if injustice can be avoided only by enforcement of promise". in central london property trust ltd. v. high trees house ltd., [1947] 1 k.b. 130 (high trees case) , the principle stated is that, 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, the party who gave the promise or assurance cannot 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 himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. but that principle does not create any cause of action, which did not exist before; so that, where a promise is made which is not supported by any consideration, the promise cannot bring an action on the basis of that promise. no vested right as to tax holding is acquired by a person who is granted concession. if any concession has been given it can be withdrawn at any time and no time limit should be insisted upon before it was withdrawn. the rule of promissory estoppel can be invoked only if on the basis of representation made by the government, the industry was established to avail benefit if of exemption. a person may have a 'legitimate expectation' of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. the expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. the doctrine of legitimate expectation has an important place in the developing law of judicial review. it is, however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. the doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallized right as such involved. the protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. the basic requirement of article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. actions are amenable, in the panorama of judicial review only to the extent that the state must act validity for discernible reasons, not whimsically for any ulterior purpose. the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. a question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. a basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does if really satisfy the test of reasonableness. every state action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. something overwhelming must appear before the court will intervene. that is and ought to be a difficult onus for an applicant to discharge. there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. the reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. nor is the test court's own standard of reasonableness as it might conceive it in a given situation. the point to note is that the thing is not unreasonable in the legal sense merely because the court thinks it to be unwise. in punjab communications ltd. v. union of india of others, air (1999) sc 1801 1999 indlaw sc 1548, the change in policy can defeat a substantive legitimate expectation if it can be justified on "wednesbury reasonableness." the decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy. it is, therefore, clear that the choice of police is for the decision-maker and not the court. the legitimate substantive expectation merely permits the court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. a claim based on merely legitimate expectation without anything more cannot ipso facto give a right. its uniqueness lies in the fact that it covers the entire span of time; present, past and future. how significant is the statement that today is tomorrows' yesterday. the present is as we experience it, the past is a present memory and future is a present expectation. if a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power of violation of principles of natural justice, the same can be questioned on the well known grounds attracting article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. if the state acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. as noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. a restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. the state government, if it so chooses, shall file its further counter-affidavits before the high court within six weeks from today indicating the reasons which warranted the withdrawal of the benefits extended. the plea of the appellants regarding legitimate expectation shall be considered by the high court in the light of materials to be placed by the respondents by affidavits as directed above. the court made it clear that we have not expressed any opinion on the factual aspects except indicating the principles underlying legitimate expectation. another point which was specifically raised before the high court but has not been dealt by it is the legality of the action in directing retrospective withdrawal of the benefit by a letter of the government. whether the same is permissible in law has to be decided by the high court. STATUTE article 166 of the constitution deals with the conduct of government business. the said provision reads as follows: conduct of business of the government of a state,- (1) all executive action of the government of a state shall be expressed to be taken in the name of the governor, (2) orders and other instruments made and executed in the name of the governor shall be authenticated in such manner as may be specified in rules to be made by the governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the governor,(3) the governor shall make rules for the more convenient transaction of the business of the government of the state, and for the allocating among ministers of the said business in so far as it is not business with respect to which the governor is by or under this constitution required to act in his discretion.

FACTS the appellants question correctness of the judgment rendered by a division bench of the madras high court which held that the withdrawal of benefits extended to the appellants as subsidy was in order. the appellants questioned legality of the g.m.o directing discontinuance of purchase tax exemption in case of mills which exceeded the ceiling of rs. 300 lakes during the period of five years, and government letter which made the aforesaid g.m.o operative retrospectively. initially the writ petitions were filed before the high court, but after constitution of the tamil nadu taxation special tribunal (hereinafter referred to as the 'tribunal') the writ petitions were transferred to the tribunal which held that on application of the principles of promissory estoppel and legitimate expectation, the withdrawal of benefit was not sustainable in law. the state questioned correctness of the judgment before the high court which, as noted above, held the g.m.o and the govt. letter to be valid, reversing the conclusions arrived at by the tribunal. the judgment forms subject matter of challenge in these appeals. the stand taken by the present appellants before the tribunal and the high court was rejected. with reference to the files produced, certain factual conclusions were arrived at, the correctness of those form the core challenge in these appeals. a new class of estoppel has come to be recognized by the courts in this country as well as in england. the doctrine of 'promissory estoppel' has assumed importance in recent years though it was dimly noticed in some of the earlier cases. ARGUMENT the doctrines of promissory estoppel and legitimate expectation were applicable to the facts of the case. there was no material to show existence of any overriding public interest to rule out application of the aforesaid doctrine there was no scope for retrospective withdrawal. in any event, before withdrawal of the benefits, no opportunity of hearing was granted. the appellants have failed to adduce any evidence or material to show that were in any way induced by any governmental action to set up industries. ISSUE the question of legitimate expectation arises according to the appellants after the benefits were granted by the concerned g.m.os. ANALYSIS estoppel is a rule of equity which has gained new dimensions in recent years. "promissory estoppel" is defined in black's law distionary as "an estoppel which arises when there is a promise which promissor should reasonable expect to induce action or forbearance of a definite and substantial character on the part of promisee, and which does include such action or forbearance, and such promise is binding if injustice can be avoided only by enforcement of promise". in central london property trust ltd. v. high trees house ltd., [1947] 1 k.b. 130 (high trees case) , the principle stated is that, 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, the party who gave the promise or assurance cannot 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 himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. but that principle does not create any cause of action, which did not exist before; so that, where a promise is made which is not supported by any consideration, the promise cannot bring an action on the basis of that promise. no vested right as to tax holding is acquired by a person who is granted concession. if any concession has been given it can be withdrawn at any time and no time limit should be insisted upon before it was withdrawn. the rule of promissory estoppel can be invoked only if on the basis of representation made by the government, the industry was established to avail benefit if of exemption. in kasinka trading and anr. v. union of india and anr., [1995] 1 scc 274 1994 indlaw sc 2183 it was held that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice. a person may have a 'legitimate expectation' of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. the expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. the doctrine of legitimate expectation has an important place in the developing law of judicial review. it is, however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. it is generally agreed that 'legitimate expectation' gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right to a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. the doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallized right as such involved. the protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. the basic requirement of article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. actions are amenable, in the panorama of judicial review only to the extent that the state must act validity for discernible reasons, not whimsically for any ulterior purpose. the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. a question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. a basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does if really satisfy the test of reasonableness. every state action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary. something overwhelming must appear before the court will intervene. that is and ought to be a difficult onus for an applicant to discharge. there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. the reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. nor is the test court's own standard of reasonableness as it might conceive it in a given situation. the point to note is that the thing is not unreasonable in the legal sense merely because the court thinks it to be unwise. in punjab communications ltd. v. union of india of others, air (1999) sc 1801 1999 indlaw sc 1548, the change in policy can defeat a substantive legitimate expectation if it can be justified on "wednesbury reasonableness." the decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy. it is, therefore, clear that the choice of police is for the decision-maker and not the court. the legitimate substantive expectation merely permits the court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. a claim based on merely legitimate expectation without anything more cannot ipso facto give a right. its uniqueness lies in the fact that it covers the entire span of time; present, past and future. how significant is the statement that today is tomorrows' yesterday. the present is as we experience it, the past is a present memory and future is a present expectation. if a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power of violation of principles of natural justice, the same can be questioned on the well known grounds attracting article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. it can be one of the grounds to consider, but the court must lift the veil and see whether the decision is violative of these principles warranting interference. if the state acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. as noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed. reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. a restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. in determining whether there is any unfairness involved the nature of the right alleged to have taken infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time enter into judicial verdict, the reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. the state government, if it so chooses, shall file its further counter-affidavits before the high court within six weeks from today indicating the reasons which warranted the withdrawal of the benefits extended. the plea of the appellants regarding legitimate expectation shall be considered by the high court in the light of materials to be placed by the respondents by affidavits as directed above. the court made it clear that we have not expressed any opinion on the factual aspects except indicating the principles underlying legitimate expectation. another point which was specifically raised before the high court but has not been dealt by it is the legality of the action in directing retrospective withdrawal of the benefit by a letter of the government. whether the same is permissible in law has to be decided by the high court. STATUTE article 166 of the constitution deals with the conduct of government business. the said provision reads as follows: conduct of business of the government of a state,- (1) all executive action of the government of a state shall be expressed to be taken in the name of the governor, (2) orders and other instruments made and executed in the name of the governor shall be authenticated in such manner as may be specified in rules to be made by the governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the governor,(3) the governor shall make rules for the more convenient transaction of the business of the government of the state, and for the allocating among ministers of the said business in so far as it is not business with respect to which the governor is by or under this constitution required to act in his discretion.

this appeal by special leave arises out of a judgment and order dated 1st march2005. rendered by the high court of judicature at bombay whereby the learned single judge has set aside the order passed by the arbitral tribunal holding that they did not have jurisdiction to entertain and try the claim and counter claim made by the parties. in order to appreciate the issue requiring determination a few relevant facts may be stated. the appellant m s bharat petroleum corporation limited is a government of india undertaking under the administrative control of the ministry of petroleum natural gas and is engaged in refining distributing and selling of petroleum products all over the country. the respondent m s great eastern shipping company limited is engaged in the business of shipping and allied activities and owns a fleet of tanker vessels for charter including the vessel known as jag praja. an agreement called the time charter party in legal parlance was entered into between the appellant and the respondent on 6th may1997 for letting on hire vessels for a period of two years from 22nd september1996 to 30th june1997 and from 1st july1997 to 30th june1998on the terms and conditions set out in the said agreement. however before the charter party was to come to an end on 29th june1998the indian oil corporation limited for short ioc acting as agent of the appellant issued a fax to various ship owners including the respondent herein requesting them to extend the validity of the charter party agreement dated 6th may1997 beyond 30th june1998 for a period of one month from 1st july1998 with option for two further extensions of 15 days each. the respondent agreed to the said proposal. accordingly on 29th june1998 an addendum was signed between the parties whereby the validity period of charter party was extended for one month with an option for two further extensions for a period of 15 days each. the terms and conditions exceptions and exemptions contained in the charter party dated 6th may1997 remained unaltered. the parties are ad idem that the charter party dated 6th may1997 was extended till 31st august1998. it appears that since charter party dated 6th may1997 was coming to an end on 31st august1998the oil companies sought permission of the oil co ordination committee a wing of the ministry of petroleum and natural gas for further extension of the charter party. however the oil coordination committee by their fax message dated 26th august1998declined the request of the oil companies including the appellant for further extension of charter party beyond 31st august1998 the said fax message was an internal communication between the oil coordination committee and the oil companies. thereafter in september1998the ioc for and on behalf of the oil industry floated a fresh tender for carriage of petroleum products along the indian coast on time charter basis for a period of one year commencing from 1st september1998 to 31st august1999on the terms and conditions set out in the tender document. in response to the said tender the respondent and other vessel owners submitted their bids. it seems that being aggrieved of the decision of the ioc to invite revised price bids after opening of the sealed tenders one of the bidders filed a writ petition in the bombay high court questioning the said decision. the appellant intervened in the said matter. the writ petition was disposed of vide order dated 20th august1999 while disapproving in principle the action of the ioc in inviting fresh price bids after opening the bids but without recording final opinion on the merits of the issues raised in writ petition the court disposed of the petition inter alia directing that i the charter hire rates should be fixed by the tender evaluation committee and ii as the tender was for the period ending 31st august1999 and the writ petition was being decided on 20th august1999the ioc will not be required to enter into a contract for the period from 1st september1998 to 31st august1999 it is not in dispute that the vessel jag praja with which we are concerned continued to be chartered by the appellant till 31st august1999. it appears that pending finalization of a new charter party for the period commencing 1st september1998certain meetings took place between the oil companies and the ship owners including the respondent herein. on 12th october1998the respondent informed the ioc that if all its nine vessels mentioned in the letter are used at a fair and reasonable rate for one year from 1st september1998 to 31st august1999 for which the tender had been floated they were agreeable to apply the new agreed rates for use of the said nine vessels from 1st july1998 on 31st october1998. the ioc faxed to the respondent relevant portion of the message received by them from oil co ordination committee extending the period of usage of the existing coastal tanker fleet for the month of october1998at 80 charter hire rates prevailing till 30th june1998on provisional basis subject to adjustment of provisional charter hire with retrospective date from 1st september1998 against the revised charter hire to be finalised by the oil industry in response to the tender floated by ioc on 1st september1998 respondent s consent was asked for. the respondent responded immediately vide their letter dated 5th november1998agreeing in principle that revised charter hire rates as and when finalized in response to tender floated by the ioc on 1st september1998would be applicable to the vessels which are selected under the tender retrospectively from 1st september1998 it was pointed out that the vessels which are not chartered under the tender floated would be at a disadvantage. it was clearly stated that since the tender was not finalized the owners will be guided by the existing terms and conditions. some other objections not relevant at this stage were also indicated. as such all said and done oil co ordination committee s proposal was not accepted. nevertheless some suggestions to resolve the controversy were given. thus the proposal by the oil co ordination committee was not accepted by the respondent. in the alternative it was suggested by the respondent that the charter period be extended by six months on the existing terms and conditions at a mutually discussed time charter rate. admittedly the vessels continued to be chartered by the appellant beyond the date of this letter. thereafter for almost two months there was no communication between the parties. it was only on 31st december1998 when the ioc issued a fax to the respondent enclosing draft letter regarding charter party agreement to be signed between the charterers and owners with minor modification if necessaryrequesting the respondent to sign as per proposal by the 4th january1999on which date the respondent expressed its disinclination stating in reply fax that as per usual practice pending finalization of new charter the existing terms and conditions of the charter party continue to apply. finally it was suggested that we therefore suggest that we sign an agreement with you for the period from 1st september1998 until the matter is finally decided by you under the tender on the existing terms and conditions with the charter hire being provisionally paid on an ad hoc basis at 90 of the rate which was prevailing under the existing charter party. kindly confirm in order to draw up a suitable agreement accordingly. emphasis supplied. vide letter of even date i e 4th january1999the appellant suggested to the respondent that in the absence of a formal charter party with effect from 1st september1998a provisional arrangement for a period of four months effective from 1st september1998 with an option for extension of one month may be mutually agreed to by payment at the rate of 80 on charter hire prevailing on 30th june1998as ad hoc hire. the respondent was asked to convey their acceptance to the said suggestion. it appears that the respondent did not respond to the said suggestion by the appellant but all the same its vessel continued to be on charter with the appellant. the writ petition was ultimately disposed of on 20th august1999 it was only after a gap of about seven months that on 15th march2000the ioc informed the respondent about the evaluation of the tenders in terms of the order passed by the high court. charter hire rate worked out by the committee for vessel jag praja for the period from 1st september1998 to 31st august1999 was communicated to the respondent. in response the respondent while expressing their disappointment with the rate but purportedly in view of their long business relations with the appellant conveyed their acceptance of the proposed rate in respect of each of the vessels named in separate letters all dated 1st. may2000with the expectation that their outstanding balance of the hire shall be paid to them at the earliest. however the respondent did not convey their acceptance of the charter hire rates for two vessels viz. jag praja and jag prayog. it appears that the respondent wrote various letters to the appellant for upward revision of the rate in respect of these two vessels but seemingly their request was ultimately turned down on 2nd november2000on receipt of which the respondent slammed a legal notice dated 6th november2000on the appellant inter alia requesting them to revise the rates on the basis of mutual discussions and settle the accounts. having failed to receive any reply to the said notice by another legal notice dated 1st december2000the respondent called upon the appellant to pay balance amount of rs 43947517 to them as charter hire in respect of vessel jag praja for the period from 1st september1998 to 31st august1999 within 15 days from date of receipt of the said notice or treat it as an arbitration notice. the name of the arbitrator was also communicated to the appellant. it seems that pursuant to the said notice and some subsequent correspondence exchanged between the parties an arbitral tribunal was constituted. claims and counter claims were filed before the arbitral tribunal. on the basis of the pleadings of the parties the arbitral tribunal framed as many as eight issues. however arguments were heard only on the following three issues. issue no 1 whether the hon ble arbitral tribunal has no jurisdiction to adjudicate upon the dispute between the claimant and the respondent for the period september1998 to august1999. in respect of the vessel jag praja for the reasons stated in para 1 of the written statement. issue no 2 whether there is any common practice that if the vessel is not re delivered at the end of the period mentioned in the time charter the vessel would be governed by the charter party under which originally it was chartered. issue. no 5 whether the time charter party dated 6th. may1997 came to an end by efflux of time on 30th august1998. vide order dated 12th. may2003 the arbitral tribunal came to the conclusion that the appellant having invoked the arbitration clause contained in charter party agreement dated 6th may1997which was valid upto 31st august1998. and as the dispute between the parties related to the period subsequent to 31st. august1998they had no jurisdiction to decide the reference. the learned tribunal found issue no 2 in the negative and issue no 5 in the affirmative. according to the tribunal on and after 1st september1998charter party agreement dated 6th may1997 was superseded by a fresh agreement and a term of the agreement was that the charter hire rate would be determined by the oil co ordination committee of the ioc in nutshell the tribunal was of the view that with the performance original charter party dated 6th may1997 got extinguished. the respondent challenged the said award before the high court. by the impugned order the learned single judge has set aside the said award inter alia holding that arbitral tribunal has the jurisdiction to adjudicate the disputes between the parties as the vessel continued to be hired by the appellant for the period subsequent to 31st august1998 on the same terms and conditions as were contained in the charter party dated 6th may1997only subject to the revision or modification of the rate of hire to be determined by the oil co ordination committee. the learned judge also felt that the tribunal had erred in totally excluding from its consideration cls 23 and 4 1 of the charter party dated 6th may1997whereunder the charter party was to come to an end on re delivery of the vessel. admittedly after 31st august1998re delivery of vessel did not take place and therefore in terms of clause 23the vessel continued to be hired on the same terms and conditions except the term as to the hire charges on which there was disagreement between the parties. it was thus held that the charter party dated 6th may1997 did not come to an end by efflux of time and it was extended by the parties on the same terms and conditions except the rate of hire. correctness of this order of the high court is questioned in this appeal. mr sudhir chandra learned senior counsel appearing on behalf of the appellant has assailed the impugned order on the sole ground that the charter party dated 6th may1997 having come to an end by efflux of time on 31st august1998the arbitration clause contained in it also perished and therefore in the absence of a fresh arbitration agreement claim of the respondent relating to the period 1st september1998 to 31st august1999 could not be referred to arbitration by invoking arbitration clause in charter party dated 6th may1997 laying emphasis on the fax message dated 26th august1998 addressed by the oil co ordination committee to the oil companies including the appellant inter alia informing them that no further extension of the current charter hire rate will be allowed learned counsel submitted that the said message made it clear to all concerned that charter party dated 6th may1997 would not be extended under any circumstance. shyam divan learned senior counsel appearing on behalf of the respondent on the other hand submitted that notwithstanding the fact that the period fixed originally under the charter party or under the addendum dated 29th june1998 had come to an end the subsequent conduct of the parties goes to show that charter of the vessel by the appellant beyond 31st august1998 continued to be governed by the terms and conditions stipulated in charter party dated 6th may1997 and therefore an arbitration agreement did exist between the parties. learned counsel argued that even otherwise till the vessel was not re delivered in terms of cls 4 and 23 of charter party dated 6th may1997the said agreement could not come to an end. it was pointed out that all the obligations of the owners as well as of the charterers during the period the vessel was in use continued to be discharged under the charter party dated 6th may1997 even after the expiry of the period of the charter party. in support of the proposition that the concurrence of a party can be gathered from his conduct like continued user of the vessel in the present case without any objection to respondent s letter dated 4th january1999reliance is placed on a decision of this court in the godhra electricity co ltd anr. the state of gujarat anr 1974 indlaw sc 253. it was also submitted that the view taken by the high court being a plausible view interference in exercise of extra ordinary jurisdiction u art 136 of the constitution is unwarranted. thus the short question for determination is whether on the expiry of the extended period of charter hire on 31st august1998charter party dated 6th may1997 came to an end and the arbitration agreement between the parties perished with it. before we proceed to examine the rival stands we may note at the outset that neither the arbitral tribunal nor the high court have gone into the question whether the claim made by the respondent would otherwise fall within the ambit of the arbitration clause in the charter party or not. what is in dispute is whether the arbitration agreement between the parties had got extinguished after 31st august1998i e the date of expiry of the extended period of the charter party. therefore we refrain from expressing any opinion on the scope and ambit of the arbitration clause though prime facie it appears to be quite widely worded. it is no doubt true that the general rule is that an offer is not accepted by mere silence on the part of the offerree yet it does not mean that an acceptance always has to be given in so many words. under certain circumstances offerree s silence coupled with his conduct which takes the form of a positive act may constitute an acceptance an agreement sub silentio. therefore the terms of a contract between the parties can be proved not only by their words but also by their conduct. in our view the principle of sub silentio is clearly attracted in the present case. as noted above after the extended period of charter party dated 6th may1997 had come to an end on 31st august1998. and the bids received pursuant to fresh invitation were pending finalization vide their letter dated 12th. october1998the respondent had informed the appellant that they were agreeable to apply new rates for use of the vessel from 1st july1998 provided all the nine vessels are used. however on 31st october1998the appellant faxed ioc s message informing them of the extension of the existing coastal tanker fleet for the month of october1998 at reduced rates viz 80 of the charter party rates prevailing till 30th august1998 on receipt of the said letter the respondent vide their letter dated 5th november1998protested against the revision of the rates for the vessel not being considered under the new bid and stated in unequivocal terms that it was not possible for them to accept the proposal of the oil co ordination committee communicated to them vide letter dated 12th. october1998 yet again while responding to appellant s fax dated 31st december1998whereby the respondent was required to sign a provisional charter party by 4th january1999vide their letter dated 4th january1999the respondent pointed out to the appellant that usual practice is that pending finalization of the new charter the existing terms and conditions of the charter party continue to apply and therefore they were willing to sign the agreement as contemplated by the appellant based on the existing terms and conditions. it was suggested that an agreement may be signed between them for the period from 1st september1998 until the matter was finally decided by the appellant under the tender on the existing terms and conditions with the charter hire being provisionally paid on ad hoc basis at 90 of the rate which was prevailing under the existing charter party. as noted hereinabove there was no response by the appellant to respondent s letter dated 4th january1999 though it appears that vide their letter of even date the appellant did suggest to the respondent that as a token of formal agreement the said letter may be jointly signed by the charterers and the vessel owners. admittedly no such agreement was signed between the parties. indubitably there was no further exchange of correspondence between the parties during the year. nevertheless the appellant continued to use the vessel on hire with them under the time charter dated 6th may1997 the conduct of the parties as evidenced in the said correspondence and in particular appellant s silence on respondent s letters dated 5th november1998 and 4th. january1999coupled with the fact that they continued to use the vessel manifestly goes to show that except for the charter rate there was no other dispute between the parties. they accepted the stand of the respondent sub silentio and thus continued to bind themselves by other terms and conditions contained in the charter party dated 6th may1997which obviously included the arbitration clause. we may examine the issue from another angle based on respondent s stand that charter party dated 6th may1997 continues to be in vogue till the chartered vessel is re delivered. in this context it would be appropriate to refer to cls 4 and 23 of the charter party dated 6th may1997 these are in the following terms 4 delivery redelivery 4 1. the vessel shall continue to be on charter to charterers in direct continuation from 2348 hrs 22 09 1996 to 30 06 1998 the vessel shall be re delivered by charterers to owners on dropping last outward pilot at any port on west coast of india at charterers option. charterers to give owners 15 days notice to probable port of re delivery. 4 2 charterers to load last three cargoes clean and re deliver the vessel in clean condition. final voyage should the vessel be on her voyage towards the port of redelivery at the time of payment of hire is due payment of hire shall be made for such length of time as owners and charterers may agree upon as being estimated time necessary to complete the voyage less any disbursements made or expected to be made or expenses incurred or expected to be incurred by charterers for owners account and less the estimated amount of bunker fuel remaining at the termination of the voyage and when the vessel is redelivered any overpayment shall be refunded by the owners or underpayment paid by charterers. notwithstanding the provisions of cl 4 hereof should the vessel be upon voyage at the expiry of the period of this charter charterers shall have the use of vessel at the same rate and conditions for such extended time as may be necessary for the completion of the round voyage on which she is engaged and her return to a port of redelivery as provided by the charter. on a conjoint reading of the said clauses it is plain that the appellant was under an obligation to re deliver the vessel as per the procedure contemplated in the afore noted clauses. indisputably the vessel in question had not been re delivered at least during the relevant period and the appellant continued to use the vessel beyond 31st august1998 having failed to re deliver the vessel in terms of cl 4 1 of the charter party the appellant can not plead that the charter party had been fully worked out. it is clear from the pleadings and issue no 2framed by the arbitral tribunal that it was respondent s consistent stand that since the hired vessel had not been re delivered at the end of the time charter party the vessel would be governed by the terms and conditions in the charter party dated 6th may1997. however the arbitral tribunal answered the said issue against the respondent. it appears to us that even the question in regard to the effect and consequences of non delivery of the vessel in terms of the cl 4 1 and 23 would by itself be a dispute arising under the said charter party with. respect. the learned arbitral tribunal overlooked this aspect of the matter. we are therefore of the opinion that though performance of the charter party agreement dated 6th may1997 may have come to an end on 31st august1998. but it was still in existence for some purposes viz the effect of vessel s non re delivery as per the prescribed mechanism and its continued use beyond the stipulated time. and thus the arbitration clause in the said charter party operated in respect of these and other allied purposes. therefore the factual scenario in the instant case leads to an inescapable conclusion that notwithstanding the expiry of the period fixed in the time charter party dated 6th may1997the said charter party did not get extinguished inter alia for the purpose of determination of the disputes arising thereunder and the arbitration clause contained therein could be invoked by the respondent. in view of the foregoing discussion we do not find any infirmity in the view taken by the high court that charter party dated 6th may1997 had not come to an end by efflux of time and it got extended by the conduct of the parties warranting interference. having come to the conclusion that an arbitration agreement existed between the parties the question which remains to be considered is whether the disputes between the parties should be referred to the same arbitral tribunal which had come to the conclusion that in the absence of any arbitration agreement it did not have jurisdiction to entertain and try the claims and counter claims. we feel that it would be proper and expedient to constitute a fresh arbitral tribunal. accordingly we constitute an arbitral tribunal consisting of justice m jagannadha rao presiding arbitratorjustice d p wadhwa and justice s n variava former judges of this court to adjudicate upon the claim counter claim by the parties subject to their consent and such terms and conditions as they may deem fit and proper. it goes without saying that the learned tribunal shall deal with the matter uninfluenced by any observations in this order on the respective stands of the parties. resultantly the appeal being devoid of any merit is liable to be dismissed which we do leaving the parties to bear their own costs. the registry is directed to communicate this order to the learned members of the arbitral tribunal to enable them to enter upon the reference and decide the matter as expeditiously as practicable. appeal dismissed.

FACTS the appellant m/s. bharat petroleum corporation limited is a government of india undertaking,under the administrative control of the ministry of petroleum &; natural gas and is engaged in refining,distributing and selling of petroleum products all over the country. the respondent m/s. great eastern shipping company limited is engaged in the business of shipping and allied activities and owns a fleet of tanker vessels for charter,including the vessel known as jag praja. an agreement,called the time charter party in legal parlance,was entered into between the appellant and the respondent on 6th may,1997 for letting on hire vessels for a period of two years from 22nd september,1996 to 30th june,1997 and from 1st july,1997 to 30th june,1998,on the terms and conditions set out in the said agreement. however,before the charter party was to come to an end,on 29th june,1998,the indian oil corporation limited (for short ioc ),acting as agent of the appellant,issued a fax to various ship owners,including the respondent herein,requesting them to extend the validity of the charter party agreement dated 6th may,1997 beyond 30th june,1998 for a period of one month from 1st july,1998 with option for two further extensions of 15 days each. the respondent agreed to the said proposal. accordingly,on 29th june,1998 an addendum was signed between the parties whereby the validity period of charter party was extended for one month with an option for two further extensions for a period of 15 days each. the terms and conditions; exceptions and exemptions contained in the charter party dated 6th may,1997 remained unaltered. the parties are ad idem that the charter party dated 6th may,1997 was extended till 31st august,1998. it appears that since charter party dated 6th may,1997 was coming to an end on 31st august,1998,the oil companies sought permission of the oil co-ordination committee,a wing of the ministry of petroleum and natural gas for further extension of the charter party. however,the oil coordination committee,by their fax message dated 26th august,1998,declined the request of the oil companies,including the appellant,for further extension of charter party beyond 31st august,1998. the said fax message was an internal communication between the oil coordination committee and the oil companies. thereafter,in september,1998,the ioc for and on behalf of the oil industry,floated a fresh tender for carriage of petroleum products along the indian coast on time charter basis for a period of one year commencing from 1st september,1998 to 31st august,1999,on the terms and conditions set out in the tender document. in response to the said tender,the respondent and other vessel owners submitted their bids. it seems that being aggrieved of the decision of the ioc to invite revised price bids after opening of the sealed tenders,one of the bidders filed a writ petition in the bombay high court,questioning the said decision. ARGUMENT learned senior counsel appearing on behalf of the appellant has assailed the impugned order on the sole ground that the charter party dated 6th may,1997 having come to an end by efflux of time on 31st august,1998,the arbitration clause contained in it also perished and,therefore,in the absence of a fresh arbitration agreement,claim of the respondent relating to the period 1st september,1998 to 31st august,1999 could not be referred to arbitration by invoking arbitration clause in charter party dated 6th may,1997. laying emphasis on the fax message dated 26th august,1998 addressed by the oil co-ordination committee to the oil companies,including the appellant,inter alia,informing them that no further extension of the current charter hire rate will be allowed,learned counsel submitted that the said message made it clear to all concerned that charter party dated 6th may,1997 would not be extended under any circumstance. shyam divan,learned senior counsel appearing on behalf of the respondent,on the other hand,submitted that notwithstanding the fact that the period fixed originally under the charter party or under the addendum dated 29th june,1998 had come to an end,the subsequent conduct of the parties goes to show that charter of the vessel by the appellant beyond 31st august,1998 continued to be governed by the terms and conditions stipulated in charter party dated 6th may,1997 and,therefore,an arbitration agreement did exist between the parties. learned counsel argued that even otherwise till the vessel was not re-delivered in terms of cls.4 and 23 of charter party dated 6th may,1997,the said agreement could not come to an end. it was pointed out that all the obligations of the owners as well as of the charterers during the period the vessel was in use continued to be discharged under the charter party dated 6th may,1997 even after the expiry of the period of the charter party. in support of the proposition that the concurrence of a party can be gathered from his conduct,like continued user of the vessel in the present case,without any objection to respondent s letter dated 4th january,1999,reliance is placed on a decision of this court in the godhra electricity co. ltd.&; anr. vs. the state of gujarat &; anr 1974 indlaw sc 253. it was also submitted that the view taken by the high court being a plausible view,interference in exercise of extra-ordinary jurisdiction u/art.136 of the constitution is unwarranted. ISSUE whether the hon ble arbitral tribunal has no jurisdiction to adjudicate upon the dispute between the claimant and the respondent for the period september,1998 to august,1999. in respect of the vessel jag praja for the reasons stated in para 1 of the written statement. whether there is any common practice that if the vessel is not re-delivered at the end of the period mentioned in the time charter the vessel would be governed by the charter party under which originally it was chartered. whether the time charter party dated 6th. may,1997 came to an end by efflux of time on 30th august,1998. the short question for determination is whether on the expiry of the extended period of charter hire on 31st august,1998,charter party dated 6th may,1997 came to an end and the arbitration agreement between the parties perished with it. ANALYSIS that neither the arbitral tribunal nor the high court have gone into the question whether the claim made by the respondent would otherwise fall within the ambit of the arbitration clause in the charter party or not. what is in dispute is whether the arbitration agreement between the parties had got extinguished after 31st august,1998,i.e.the date of expiry of the extended period of the charter party. it is,no doubt,true that the general rule is that an offer is not accepted by mere silence on the part of the offerree,yet it does not mean that an acceptance always has to be given in so many words. under certain circumstances,offerree s silence,coupled with his conduct,which takes the form of a positive act,may constitute an acceptance an agreement sub silentio. therefore,the terms of a contract between the parties can be proved not only by their words but also by their conduct. in our view,the principle of sub silentio is clearly attracted in the present case. there was no response by the appellant to respondent s letter dated 4th january,1999 though it appears that vide their letter of even date,the appellant did suggest to the respondent that as a token of formal agreement the said letter may be jointly signed by the charterers and the vessel owners. admittedly,no such agreement was signed between the parties. indubitably,there was no further exchange of correspondence between the parties during the year. on a conjoint reading of the clauses,it is plain that the appellant was under an obligation to re-deliver the vessel as per the procedure contemplated in the afore-noted clauses. indisputably,the vessel in question had not been re-delivered at least during the relevant period and the appellant continued to use the vessel beyond 31st august,1998. having failed to re-deliver the vessel in terms of cl.4.1 of the charter party,the appellant cannot plead that the charter party had been fully worked out. it is clear from the pleadings and issue no.2,framed by the arbitral tribunal,that it was respondent s consistent stand that since the hired vessel had not been re-delivered at the end of the time charter party,the vessel would be governed by the terms and conditions in the charter party dated 6th may,1997. however,the arbitral tribunal answered the said issue against the respondent. it appears to us that even the question in regard to the effect and consequences of non-delivery of the vessel in terms of the cl.4.1 and 23 would by itself be a dispute arising under the said charter party .with. respect. the learned arbitral tribunal overlooked this aspect of the matter. resultantly,the appeal being devoid of any merit is liable to be dismissed,which we do,leaving the parties to bear their own costs. STATUTE it would be appropriate to refer to cls.4 and 23 of the charter party dated 6th may,1997. these are in the following terms: "4.delivery &; redelivery 4.1. the vessel shall continue to be on charter to charterers in direct continuation from 2348 hrs.22.09.1996 to 30.06.1998. the vessel shall be re-delivered by charterers to owners on dropping last outward pilot at any port on west coast of india at charterers option. charterers to give owners 15 days notice to probable port of re-delivery. 4.2 charterers to load last three cargoes clean and re-deliver the vessel in clean condition.

FACTS the appellant m/s. bharat petroleum corporation limited is a government of india undertaking,under the administrative control of the ministry of petroleum &; natural gas and is engaged in refining,distributing and selling of petroleum products all over the country. the respondent m/s. great eastern shipping company limited is engaged in the business of shipping and allied activities and owns a fleet of tanker vessels for charter,including the vessel known as jag praja. an agreement,called the time charter party in legal parlance,was entered into between the appellant and the respondent on 6th may,1997 for letting on hire vessels for a period of two years from 22nd september,1996 to 30th june,1997 and from 1st july,1997 to 30th june,1998,on the terms and conditions set out in the said agreement. however,before the charter party was to come to an end,on 29th june,1998,the indian oil corporation limited (for short ioc ),acting as agent of the appellant,issued a fax to various ship owners,including the respondent herein,requesting them to extend the validity of the charter party agreement dated 6th may,1997 beyond 30th june,1998 for a period of one month from 1st july,1998 with option for two further extensions of 15 days each. the respondent agreed to the said proposal. accordingly, an addendum was signed between the parties whereby the validity period of charter party was extended for one month with an option for two further extensions for a period of 15 days each. the parties are ad idem that the charter party was extended till 31st august,1998. it appears that since charter party dated 6th may,1997 was coming to an end on 31st august,1998,the oil companies sought permission of the oil co-ordination committee,a wing of the ministry of petroleum and natural gas for further extension of the charter party. however,the oil coordination committee,by their fax message,declined the request of the oil companies,including the appellant,for further extension of charter party beyond 31st august,1998. thereafter,in september,1998,the ioc for and on behalf of the oil industry,floated a fresh tender for carriage of petroleum products along the indian coast on time charter basis for a period of one year,on the terms and conditions set out in the tender document. in response to the said tender,the respondent and other vessel owners submitted their bids. being aggrieved of the decision of the ioc to invite revised price bids after opening of the sealed tenders,one of the bidders filed a writ petition in the bombay high court,questioning the said decision. ARGUMENT the impugned order on the sole ground that the charter party dated 6th may,1997 having come to an end by efflux of time on 31st august,1998,the arbitration clause contained in it also perished and,therefore,in the absence of a fresh arbitration agreement,claim of the respondent. it clear to all concerned that charter party dated 6th may,1997 would not be extended under any circumstance. notwithstanding the fact that the period fixed originally under the charter party or under the addendum dated 29th june,1998 had come to an end,the subsequent conduct of the parties goes to show that charter of the vessel by the appellant beyond 31st august,1998 continued to be governed by the terms and conditions stipulated in charter party dated 6th may,1997 and,therefore,an arbitration agreement did exist between the parties. the view taken by the high court being a plausible view,interference in exercise of extra-ordinary jurisdiction u/art.136 of the constitution is unwarranted. ISSUE whether the hon’ble arbitral tribunal has no jurisdiction to adjudicate upon the dispute between the claimant and the respondent for the period september,1998 to august,1999, in respect of the vessel jag praja for the reasons stated in para 1 of the written statement. whether there is any common practice that if the vessel is not re-delivered at the end of the period mentioned in the time charter the vessel would be governed by the charter party under which originally it was chartered. whether the time charter party dated 6th may,1997 came to an end by efflux of time on 30th august,1998. ANALYSIS that neither the arbitral tribunal nor the high court have gone into the question whether the claim made by the respondent would otherwise fall within the ambit of the arbitration clause in the charter party or not. what is in dispute is whether the arbitration agreement between the parties had got extinguished after 31st august,1998,i.e.the date of expiry of the extended period of the charter party. the general rule is that an offer is not accepted by mere silence on the part of the offerree,yet it does not mean that an acceptance always has to be given in so many words. under certain circumstances,offerree s silence,coupled with his conduct,which takes the form of a positive act,may constitute an acceptance an agreement sub silentio. therefore,the terms of a contract between the parties can be proved not only by their words but also by their conduct. in the court’s view,the principle of sub silentio is clearly attracted in the present case. there was no response by the appellant to respondent s letter dated 4th january,1999 though it appears that vide their letter of even date,the appellant did suggest to the respondent that as a token of formal agreement the said letter may be jointly signed by the charterers and the vessel owners. on a conjoint reading of the clauses,it is plain that the appellant was under an obligation to re-deliver the vessel as per the procedure contemplated in the afore-noted clauses. indisputably,the vessel in question had not been re-delivered at least during the relevant period and the appellant continued to use the vessel beyond 31st august,1998. having failed to re-deliver the vessel in terms of cl.4.1 of the charter party,the appellant cannot plead that the charter party had been fully worked out. it was respondent’s consistent stand that since the hired vessel had not been re-delivered at the end of the time charter party,the vessel would be governed by the terms and conditions in the charter party dated 6th may,1997. however,the arbitral tribunal answered the said issue against the respondent. it appeared to the court that even the question in regard to the effect and consequences of non-delivery of the vessel in terms of the cl.4.1 and 23 would by itself be a dispute arising under the said charter party .with respect, the learned arbitral tribunal overlooked this aspect of the matter. STATUTE it would be appropriate to refer to cls.4 and 23 of the charter party. these are in the following terms: delivery & redelivery. 4.1-the vessel shall continue to be on charter to charterers in direct continuation. the vessel shall be re-delivered by charterers to owners on dropping last outward pilot at any port on west coast of india at charterers option. 4.2- charterers to give owners 15 days’ notice to probable port of re-delivery. charterers to load last three cargoes clean and re-deliver the vessel in clean condition.

the appellant is a trust which wanted to establish a self financing engineering college and submitted an application during 1994 95 to the university of kerala as well as to all india council for technical education hereinafter called the aicte. there was an inspection by a team of professors of the university and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establish ing an engineering college. the aicte sent a communication on 30 4 1995 stating that on the basis of the observations made by the expert committee and the recommendations made by the central regional committee state level committee and central task force as per the provisions of the aicte regulation dated 30 1 1994the aicte was granting conditional approval for establishing an engineering and technical college. the abovesaid approval was subject to the fulfilment of specific conditions mentioned in annexure i and the general conditions mentioned in annexure ii to the said letter. in the event of contravention of the conditions guidelines norms and regula tions of the aicte the aicte could withdraw the approval at any time. under the impression that the state govt was to grant permission the appellant requested the state government by letter dated 24 6 1995 for permission to start the college. meanwhile the mahatama gandhi university by their letter dated 31 5 1995 forwarded to the government a list of colleges and courses for affiliation during the academic year 1995 96 the appellant 's college was shown as one of the colleges among the affiliated colleges for the said period. the appellant sent a reminder to the government on 26 8 1995 for permission for starting the college for the academic year 1995 96 and ultimately the government refused permission by informing the appellant by a letter dated 16 8 1996 as follows. in inviting your attention to the reference cited i am to inform you that government regret their inability to comply with your request. thereafter the appellant filed writ petition o p no 4612 of 1996 for quashing the said order and for a direction to sanction and establish an engineering college. the learned single judge of the high court by his judgment dated 14 1 1997 allowed the writ petition quashed the above said order of the government dated 16 8 1996 and directed the mahatama gandhi university to consider the appellant 's application for permanent affiliation without reference to the above letter of the government and pass appropriate order within 8 weeks from the date of the receipt of a copy of the judgment. the direction to pass a fresh order of affiliation was issued in view of the fact that the university contended before the learned single judge that unless the government granted approval permanent affiliation could not be granted. the government was also directed to reconsider its decision. against the said judgment of the learned single judge the commis sioner and secretary of the government higher education department filed writ appeal no 1024 of 1997 the division bench of the high court allowed the appeal and set aside the order of the government and dismissed the writ petition. the division bench however observed that the appellant was at liberty to make a fresh application to the government of kerala for according sanction for setting up the engineering college or to request the government to consider the earlier application for a future academic year. it is against the abovesaid judgment of the division bench that this appeal has been preferred. learned senior counsel for the appellant. sri t l vishwanatha. iyer contended that the division bench erred in reversing the well considered judgment of the learned single judge and according to him after the coming into force of the aicte act1987the statutes conferring power on the state or university to the extent they were inconsistent with the central act were void. in so far as institutions imparting technical education were concerned the university or the state government had no independent role to play except to the extent provided in the above said enactment in the present case the aicte had made inspections and was satisfied that the necessary infrastructure was available and that the appellant would be able to conform to the required standards of the education. the aicte had consulted the state of kerala as well as the mahatama gandhi university. the university had granted conditional approval as stated earlier. therefore the aicte consti tuted a task force and obtained its opinion and thereafter granted its approval on 13 11 1995 subject to various conditions. according to the learned senior counsel it was indeed not necessary for the appellant to have applied to the state government for any further sanction to establish the college. it might be that under the relevant statutes of the university the university was required to obtain the views of the state government but that did not amount to requiring any approval of the state government and indeed if any such statute required the approval of the state government it would be void in view of what was stated by this court in state of tamil nadu. another v adhiyaman educational research institute. othersl995 4 scc 104 1995 indlaw sc 1631. sri t l viswanatha iyer also contended that though the state government stated in its counter affidavit filed in the high court that the policy of the government was not to grant approval to self financing engineering colleges to be established such a policy could not come in the way of the appellant in view of what this court has stated in similar circumstances in thirumuruga kirupan variyar thavathiru sundara swamigal medical education charitable trust v state of tamil nadu others1996 3 scc 15 1996 indlaw sc 858. on the other hand learned additional solicitor general sri mukul rohtagi contended on behalf of the state of kerala that the policy of the state of kerala at the relevant time was not to grant approval for establish ment of more engineering colleges in the state. the government had clarified in the counter affidavit filed in the high court that the government was not in a position to take a decision to start new engineering colleges without properly assessing the necessity of more engineering graduates from the state and without exploring the possibility of employment opportunities in the country as a whole. also there were four engineering colleges at kannur trichur kottayam and thiruvananthapuram districts and three private aided engineering colleges at palakkad ernakulam kothamangalam and kollam districts. the model engineering college emakulam was a selffinancing engineering college and others were the colleges at changannur and pathansamthitta and there was a self financing engineering college at kasargode. there were also two unaided engineering colleges at mallappuram and thiruvananthapuram. even though the appellant trust was not seeking aid from the government and even assuming that it was financially self sufficient it would not be in the interests of the students employment to permit new engineering colleges to be established. thus the government policy was not to grant fresh approvals. if more approvals were granted it might lead to commercialisation of education. the following points arise for consideration 1. whether in view of the judgment of this court in state of tamil nadu another v adhiyaman educational research institute others1995 4 scc 104 1995 indlaw sc 1631the provisions of the aicte act1987 occupied the field and it was not necessary to obtain the further approval of the government or other authority. whether any statute in the state of kerala if it required such approval would be void. 2 whether the orders of rejection passed by the state government were valid on merits and whether the university should have granted further orders to continue the affiliation solely on the basis of the aicte permission. point 1. this point is more or less covered by the judgment of this court in state of tamil nadu. but in the context of s 10k regarding approval for starting a technical institution certain aspects of the judgment need to be highlighted. before we refer to the abovesaid judgment it will be necessary to refer to certain provisions of the aicte act and the relevant regulations. the abovesaid act was an act to provide for the establishment of all india council for technical education with a view to the proper planning and coordinated development of the technical education system throughout the country the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. u s 10 of the act it is stated that it is the duty of the council constituted under the act to take all steps as the said council might think fit for ensuring coordinated and integrated develop ment of technical education and maintenance of standards. for the purposes of performing its functions under the act the council may a undertake survey in various fields of technical education collect data on all related matters and make forecast of the needed growth and development in technical education b coordinate the development of technical education in the country at all levels c allocate and disburse out of the fund of the council such grants on such terms and conditions as it may think fit to i technical institutions and ii universities imparting technical education in coordination with the commission d promote innovations research and development in established and new technologies generation adoption and adaptation of new technologies to meet developmental requirements and for overall improve ment of educational processes e formulate schemes for promoting technical education for women handicapped and weaker sections of the society f promote an effective link between technical education system and other relevant systems including research and development organisations industry and the community g evolve suitable performance appraisal systems for technical institutions and universities imparting technical education incorpo rating norms and mechanisms for enforcing accountability h formulate schemes for the initial and in service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers i lay down norms and standards for courses curricula physical and instructional facilities staff pattern staff qualifications quality instructions assessment and examinations j fix norms and guidelines for charging tuition and other fees. the clause in s 101 which is important in the present case is subcl k of s 101 and it provides that the council might grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. sub cl 1 permits the council to advice the central government in certain respects sub cl m lay down norms for granting autonomy subcl n to take necessary steps to prevent commercialisation of technical education cl o to provide guidelines for admission of students to technical institutions and universities imparting technical education cl p to inspect or cause inspection to any technical institution cl q to withhold or discontinue grant cl r to strengthen the existing organisa tions etc. cl s to declare technical institutions as fit to receive grants cl t to advice for declaring institutions to be deemed as universities cl u to set up a national board of accreditation. s 11 of the act deals with inspection. regulations have been framed on 31st october1994 by the aicte in exercise of powers conferred on it by s 231 of the aicte act. regulation 2 states that these regulations will be applicable to proposals relating to a grant of approval of the council for establishment of new technical institutions including universities or university depart ments and deemed universities and for technical institutions function ing on the date of commencement of these regulations at degree and diploma levels b grant of approval of the council for introduction of any course or programme in the technical institutions and technical departments or universities or deemed universities c grant of approval of the council for existing intake capacity of seats and for increase in the annual intake capacity of seats in courses and programmes. regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations a b no course or programme shall be introduced in any technical institutions university or deemed university or university departments or college or c no technical institutions universities or deemed universities or university departments or colleges shall continue to admit students for degree or diploma courses or programmes. d no approved intake capacity of seats shall be increased or varied except with the approval of the council. reg 42. regulation 5 deals with the forms of the applications and regulation 6 deals with the conditions for grant of approval sub cls 1 of regulation 6 deals with the financial position. sub cl 2 with the courses or programmes and sub cl 3 deals with the power of admissions and sub cl 4 with tuition fees etc and sub cl 5 with the staff and sub cl 6 with the governing body of the private institutions and subcl 7 with other matters. regulation 8 deals with scrutiny of applications. there is a prelimi nary scrutiny of the applications by the bureau rc of the council. sub cl 4 of regulation 8 reads as follows. reg 84. the bureau rc shall invite comments recommendations on the applications referred to in sub regulation 3 from the follow ing namely. i the state government concerned ii the affiliating university state board of technical education iii bureaus mpcd iv bureau bos v bureau ra vi the regional office. sub cl 5 of regulation 8 requires the regional office to arrange visits by an expert committee constituted by the council which is to forward its recommendations to the council. sub cl 6 of regulation 8 states that the state level committee constituted under regulation 94 is to consider the recommendations of the state government and others mentioned in regulation 84 and that it is to make its recommendations to the central task force constituted under regulation 95 and consider the recommendations of the state level committee and send its recommendations to the member secretary of the council. sub cls 8 9 of regulation 8 are important and read as follows reg 88 if there is a disagreement in the recommendations made by the state government university or the regional committee the central task force shall invite representatives of the respective agencies for further consultations before making final recommenda tion 9. on the recommendation of the central task force the council shall decide the question of grant of approval as sought for in the application. provided that the council may for reasons to be communicated to the applicant allow the approval with such restrictions or modifications as it may deem necessary. sub cl 10 of regulation 8 states that the decision of the council shall be communicated to the state government concerned or the ugc as the case may be the concerned university or the state board the regional office and the applicant before 30th april in case the application was made before the preceding 31st december. the tamil nadu case. as stated earlier the above provisions of the aicte act came up for consideration in state of tamil nadu v adhiyaman educational research institute1995 4 scc 104 1995 indlaw sc 1631. in the above matter the state of tamil nadu granted permission on 17 4 84 to all private managements to start private engineering colleges without financial commitment to government but subject to conditions. at that time in 1984the aicte act was not on the statute book. the government of tamil nadu granted permission to the trust for the academic year 1987 88 to start an engineering college. the university also granted permission on 21 11 87 for the academic year 1987. 88 later on these permissions were withdrawn by the state after issuing show cause on 16 7 89 so did the university on 26 7 89 but by that date the aicte act1987 had come into force. the learned single judge and the division bench held in favour of the trust and quashed and orders of the government and the university. the said judgments were affirmed by this court. it was held that the aicte act was referable to entry 66list. i of the constitution of india relating to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. after the constitutional amendment 42 amendment act1976 entry 25 of list iii in the concurrent list. read education included technical education medical institution and universities subject to the provisions of entries 636465 and 66 of list i vocational and technical training of labour. thus the state law under entry 23 of list iii would be repugnant to any law made by the parliament under entry 66 of list i to the extent of inconsistency. the tamil nadu act was of 1976 and the university act was of 1923 and were laws referable to the list. iii whether. they were preconstitutional or a post constitutional laws they would be repugnant to the aicte act passed by parliament under entry 66 of list. i in the above case this court referred to the various provisions of the aicte act and on the question of repugnancy held as follows. hence on the subjects covered by the statute the state could not make a law under entry 25 of list iii after the forty second amendment. if there was any such existing law immediately before the commencement of the constitution within the meaning of art 372 of the constitution as the madras university act 1923 on the enactment of the present central act the provisions of the said law if repugnant to the provisions of the central act would stand impliedly repealed to the extent of repugnancy. such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy u art 254 of the constitution. we shall now refer to the above judgment dealing with the question of approval for establishing technical institutions under s 10k of the aicte act. the tamil nadu rules of 1976 made under the 1976 act had no doubt excluded technical institutions from the purview of the rules but this court pointed out that the rules were capable of being amended so as to extend to such technical institutions and that if they were so extended the state act of 1976 and the rules would require approval by the state government and that would be void. it was stated that inasmuch as the state act will overlap and will be in conflict with the provisions of the central act in various areas. granting approval for starting new technical institution. inspection of technical institution which are matters covered by the central act. this court then referred to the madras university act1923 it was held that s 10 of the central act dealt with various matters including granting approval for starting new technical institutionsand that so far as these matters were concerned. it is not the university act and the university but it is the central act and the council created under it which will have the jurisdiction. to that extent after the coming into force of the central act the provisions of the university act will be deemed to have become unenforceable. thus in the two passages set out above this court clearly held that because of s 10k of the central act which vested the powers of granting approval in the council the t n act of 1976 and the university act1923 could not deal with any questions of approval for establishment of technical institutions. all that was necessary was that under the regulations the aicte council had to consult them. statutory powers of the state of kerala and the m g university. the question is as to how far the judgment in the tamil nadu case is to be applied in the state of kerala. learned additional solicitor general stated before us that there was no statute in the state of kerala corresponding to the tamil nadu act of 1976 nor any other law which specifically required the approval of the state government. it was however contended that the tamil nadu case was concerned only with the standards of education and as to who could fix them. we are not inclined to agree. we have already pointed out under point 1 that in the tamil nadu case s 10k of the aicte act was referred to and the power of approval for establishing a technical institution was considered in our opinion even if there was a state law in the state of kerala which required the approval of the state government for establishing technical institutions such a law would have been repugnant to the aicte act and void to that extent as held in the tamil nadu case. the only provision relied on before us by the state government which according to its learned senior counsel amounted to a statutory requirement of approval of the state government was the one contained in cl 97 of the kerala university first statute. it reads as follows grant of affiliation 1. after considering the report of the commission and the report of the local inquiry if any and after making such further inquiry as it may deem necessary the syndicate shall decide after ascer taining the view of the government also whether the affiliation be granted or refused either in whole or part. in case affiliation is granted the fact shall be reported to the senate at its next meet ing. it will be noticed that cl 97 of the statute required that before the university took a decision on affiliationit had to ascertain the views of the state government. the reference to the commission in the above cl 97 is to the commission of inspection appointed by the university. sub cl 1 of cl 9 of the statute required verification of the facilities that may exist for starting the new colleges course. the commission was to inspect the site verify the title deeds as regards the proprietary right of the management over the land and buildings if any offered building accommodation provided if any assets of the management constitution of the registered body and all other relevant matters sub cl 2 of cl 9 stated that the affiliation shall depend upon the fulfilment by the management of all the conditions for the satisfactory establishment and maintenance of the proposed institutional courses of studies and on the reports of inspection by the commission or commissions which the university may appoint for the purpose. as held in the tamil nadu case the central act of 1987 and in particular s 10k occupied the field relating the grant of approvals for establishing technical institutions and the provisions of the central act alone were to be complied with. so far as the provisions of the mahatma gandhi university act or its statutes were concerned and in particular statute 97they merely required the university to obtain the views of the state government. that could not be characterised as requiring the approval of the state government. if indeed the university statute could be so inter preted such a provision requiring approval of the state government would be repugnant to the provisions of s 10k of the aicte act1987 and would again be void. as pointed out in the tamil nadu case there were enough provisions in the central act for consultation by the council of the aicte with various agencies including the state governments and the universities concerned. the state level committee and the central regional committees contained various experts and state representatives. in case of difference of opinion as between the various consultees the aicte would have to go by the views of the central task force. these were sufficient safeguards for ascertaining the views of the state governments and the universities. no doubt the question of affiliation was a different matter and was not covered by the central act but in the tamil nadu case it was held that the university could not impose any conditions inconsistent with the aicte act or its regulation or the conditions imposed by the aicte therefore the procedure for obtaining the affiliation and any conditions which could be imposed by the university could not be inconsistent with the provisions of the central act. the university could not therefore in any event have sought for approval of the state government. thus we hold in the present case that there was no statutory require ment for obtaining the approval of the state government and even if there was one it would have been repugnant to the aicte act. the university statute 97 merely required that the views of the state government be obtained before granting affiliation and this did not amount to obtaining approval. if the university statute required approvalit would have been repugnant to the aicte act. point 1 is decided accordingly. point 2. factual position and pleadings in this case. on facts the position was that the aicte had granted approval on 30 4 95 expressly stating that this was on consideration of the observations made by the expert committee and the recommendations made by the central regional committee state level committee central task force as per the provisions of aicte regulations dated 31 10 94. the aicte had granted condition approval and the conditions were specified in annexure. i to the order and the general conditions were enlisted in annexure ii the. state government was directed by the aicte to announce admission in accordance with regulation notified on 20 5 94 and based on the judgment of the supreme court in unnikrishnan v state of andhra pradesh1993 1 scc. 645 1993 indlaw sc 1168 the mahatma gandhi university had included this appellant in the list of colleges and courses which were granted affiliation during 1995 96 and the university had written to the state government on 31 5 95 that as per statute 97the views of the government were to be sent before granting affili ation. the letter said that for that reason the proposals of the university were being submitted to the government for necessary action. the appellant had sent a reminder on 26 8 95 the state in its letter dated 16 8 96 to the appellant merely stated that government regret their inability to comply with your request. no reasons were assigned in the said letter. but the state in its counter filed in the high court tried to explain that the director of technical education had opined that during the year 1995 96it might not be practicable to start the college for the director could not ascertain the details of the facilities available. it was stated he could not ascertain the infrastructural facilities provided by the appellant as per the norms prescribed by the all india council of technical education. the all india council for technical education and the mahatma gandhi university have sought for the remarks of the state government. para 4 of the counter affidavit had further stated that the government was not in a position to take a decision to start new engineering college without properly assessing the necessity of more engineering gradu ates in the state and exploring the possibility of employment oppor tunity in the country to the extent possible. the state government in its counter then gave the names of the existing colleges and their location. we have already referred to these details. it also observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new engineering colleges. it was stated that government could not initially take a decision on the appellant 's affiliation because of elections and that matter being one of major policy the government had subsequently taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year. these are stated to be the reasons for the government 's rejection by letter dated 16 8 96. state government 's refusal to grant permission is illegal and void on merits. as already stated in view of the judgment of this court in tamil nadu case it is obvious that there is no need to approach the state of kerala for its approval for starting the engineering colleges. there is no power vested in the state under any state law to grant approval and even if it was so vested it would have been void in view of tamil nadu case. this ground of repugnancy alone would be sufficient to quash the state government 's letter dated 16 8 1996 refusing to give their approval. even on merits the reasons given by the state government in its counter are not tenable in law. the director of technical education of the state was a member of the state level committee as per regulation 94 of the aicte regulations. the secretary technical education of the state of kerala was also a member of that committee. the aicte 's approval dated 30 4 95 showed that the approval had been given by the state level com mittee of which they were obviously members. it is therefore not under standable how the director had given a contrary opinion to the state government. regulation 84 of aicte only required calling for the com ments recommendations of the state government and of the university. in case there was difference between the state government university or the regional committee the central task force was to make a final recommen dation under regulation. 84 here. the letter of approval of the aicte dated 30 4 95 showed that the central task force had given its approval. the said approval was based also on the inspection by the expert committee of the aicte hence the state government in its counter could not have relied upon any contrary opinion of the director of technical education. if the state government had any other valid objections its only remedy was to place its objections before the aicte council under the aicte act or before the committees e g state level committee etc. the so called policy of the state as mentioned in the counter affidavit filed in the high court was not a ground for refusing approval. in thirwnuruga kirupan and variyar thavathiru sundara swamigal medical education charitable trust v state of tamil nadu others1996 3 scc 15 1996 indlaw sc 858which was a case relating to medical education and which also related to the effect of a central law upon a law made by the state under entry 25 list iii it was held that the essentiality certificate can not be withheld by the state government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the central government alone. therefore the state could not have any policy outside the aicte act and indeed if it had a policy it should have placed the same before the aicte and that too before the latter granted permission. once that procedure laid down in the aicte act and regulations had been followed under regulation 84and the central task force had also given its favourable recommendations there was no scope for any further objection or approval by the state. we may however add that if thereafter any fresh facts came to light after an approval was granted by the aicte or if the state felt that some conditions attached to the permission and required by the aicte to be complied with were not complied with then the state government could always write to the aicte to enable the latter to take appropriate action. decision of university in not granting further or fined affiliation wrong on merits. admittedly the university 's inspection report was in favour of the appellant. this is clear from the appellant 's letter dated 31 5 95 to the state government. the only requirement as per the statute 97 was for the university to obtain the views of the state government. obtaining the views of the state government as already stated did not amount to obtaining its approval. procedure and conditions for affiliation could not be inconsistent with the provisions of the central act in particular s 10k of the regulation and the university could not seek approval of government. the university was also one of the agencies consulted by the council of the aicte under regulation 8 once that was over and approval was granted by the aicte if there was any default on the part of the college in compliance with the conditions of approval the only remedy for the univer sity was to bring those facts to the notice of the aicte so that the latter could take appropriate action. reliance for the respondent was placed upon the subsequent report of the syndicate dated 7 8 97 this report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30 4 95 granted by the aicte assuming certain fresh facts had come to the notice of the university it could only place the said facts before the aicte. thus the university ought to have considered the grant of final or further affiliation without waiting for any approval from the state govern ment and should have acted on the basis of the permission granted by aicte and other relevant factors in the university act or statutes which are not inconsistent with the aicte act or its regulations. for the aforesaid reasons we set aside the judgment of the division bench of the high court and uphold the reasoning of the learned single judge in his judgment in op 461296 dated 14 1 1997 we hold that the approval of the aicte was sufficient we do not also think that it was necessary for the learned single judge to direct the state government to reconsider its decision. the learned single judge 's order quashing the letter of the state government dated 16 8 96 is upheld. the direction to the mahatama gandhi university to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the aicte dated 30 4 95or any other relevant factors in the university act or its statutes which are not inconsistent with the aicte act or its regulations. the appeal is allowed and disposed of as stated above. there will be no order as to costs. m jagannadha rao j. the petitioner was not a party in the high court of kerala and this special leave petition was filed with leave of this court. we find that the petitioner has already filed a writ petition in the delhi high court namely cwp no 952 of 1998 and the same is pending. it will be for the petitioner to have the said matter disposed of by the high court of delhi. therefore this special leave petition is dismissed as premature. appeal allowed.

FACTS the appellant is a trust which wanted to establish a self-financing engineering college and submitted an application to the university of kerala as well as to all india council for technical education (hereinafter called the 'aicte'). there was an inspection by a team of professors of the university and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establishing an engineering college. the aicte sent a communication stating that on the basis of the observations made by the expert committee and the recommendations made by the central regional committee,state level committee and central task force as per the provisions of the aicte regulation,the aicte was granting conditional approval for establishing an engineering and technical college. in the event of contravention of the conditions,guidelines,norms and regulations of the aicte,the aicte could withdraw the approval at any time. under the impression that the state govt.was to grant permission,the appellant requested the state government for permission to start the college. meanwhile,the mahatma gandhi university by their letter dated forwarded to the government a list of colleges and courses for affiliation during that academic year. the appellant's college was shown as one of the colleges among the affiliated colleges for the said period. the appellant sent a reminder to the government for permission for starting the college for that academic year and ultimately the government refused permission by informing the appellant by a letter. thereafter,the appellant filed writ petition for quashing the said order and for a direction to sanction and establish an engineering college. ARGUMENT learned senior counsel appearing for the state fishery development corporation ltd.contended that a compromise decree between the parties in a suit for partition will not in army way affect the rights of the state in respect of the fisheries whether such rights the state acquires by virtue of an order of requisition under the requisition act or by virtue of any other statutory provisions under which the fisheries right vest in the state. it was further contended that this court while giving affect to the compromise arrived at between the sarkar family made it explicitely clear that the said compromise will not in any way affect the rights of the state over the fisheries even if those fisheries agreed to be divided between the parties and in that view of the matter and the state of west bengal having already requisitioned the nalban fishery and having taken possession of the same the receiver could not have taken possession of the said nalban fishery pursuant to the order of this court appointing the collector 24 parganas as receiver and. under the circumstances the said receiver rightly intimated this court about the mistake committed by him and re-delivered possession of nalban fishery to the state of west bengal. contended that the order of the high court of hon'ble mr. justice deepak kumar sen dated 23.9.1980 directing the receiver to allow m/s. ghose and saha surveyors to make proper demarcation in the nalban fishery dividing the same in two lots and thereafter carry out the directions of the supreme court in respect thereof has become final,the same not having been challenged by the state of west. bengal and therefore,it would not be open for the said state in application for execution of the decree to raise the question of vesting of the nalban fishery with the state and the court would not interfere with the direction given by the learned single judge and division bench of the calcutta high court. ISSUE (1) whether in view of the judgment of this court in state of tamil nadu & another v.adhiyaman educational & research institute & others,[1995] 4 scc 104 1995 indlaw sc 1631,the provisions of the aicte act,1987 occupied the field and it was not necessary to obtain the further approval of the government or other authority? whether any statute in the state of kerala if it required such approval,would be void? (2) whether the orders of rejection passed by the state government were valid on merits and whether the university should have granted further orders to continue the affiliation solely on the basis of the aicte permission? ANALYSIS the aicte act,1987 was an act to provide for the establishment of all india council for technical education with a view to the proper planning and coordinated development of the technical education system throughout the country,the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. sub-cl.10 of regulation 8 states that the decision of the council shall be communicated to the state government concerned or the ugc,as the case may be,the concerned university or the state board,the regional office and the applicant before 30th april in case the application was made before the preceding 31st december. in the above matter,the state of tamil nadu granted permission to all private managements to start private engineering colleges without financial commitment to government but subject to conditions. at that time,the aicte act was not on the statute book. the government of tamil nadu granted permission to the trust for the academic year 1987-88 to start an engineering college. s.10 of the madras university act,1923 dealt with various matters (including granting approval for starting new technical institutions),and that so far as these matters were concerned. it is not the university act and the university but it is the central act and the council created under it which will have the jurisdiction. to that extent,after the coming into force of the central act,the provisions of the university act will be deemed to have become unenforceable. because of s.10(k) of the central act which vested the powers of granting approval in the council,the t.n.act of 1976 and the university act,1923 could not deal with any questions of 'approval' for establishment of technical institutions. in the tamil nadu case,s.10(k) of the aicte act was referred to and the power of 'approval' for establishing a technical institution was considered,in our opinion,even if there was a state law in the state of kerala which required the approval of the state government for establishing technical institutions,such a law would have been repugnant to the aicte act and void to that extent,as held in the tamil nadu case. sub-cl.(1) of cl.(9) of the kerala university first statute required "verification of the facilities that may exist for starting the new colleges/course". the commission was to inspect the site, verify the title deeds as regards the proprietary right of the management over the land (and buildings, if any) offered, building accommodation provided, if any, assets of the management, constitution of the registered body and all other relevant matters. sub-cl.(2) of cl.(9) of kerala university first statute stated that the affiliation "shall depend upon the fulfilment by the management of all the conditions for the satisfactory establishment and maintenance of the proposed institutional courses of studies and on the reports of inspection by the commission or commissions which the university may appoint for the purpose. the procedure for obtaining the affiliation and any conditions which could be imposed by the university,could not be inconsistent with the provisions of the central act. the university could not,therefore,in any event have sought for 'approval' of the state government. the state government in its counter then gave the names of the existing colleges and their location. the court observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new engineering colleges. government could not initially take a decision on the appellant's affiliation because of elections and that matter being one of 'major policy' the government had subsequently "taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year. in thirwnuruga kirupan and variyar thavathiru sundara swamigal medical education & charitable trust v.state of tamil nadu & others,[1996] 3 scc 15 1996 indlaw sc 858,which was a case relating to medical education and which also related to the effect of a central law upon a law made by the state under entry 25 list iii,it was held that the "essentiality certificate cannot be withheld by the state government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the central government alone". after an approval was granted by the aicte or if the state felt that some conditions attached to the permission and required by the aicte to be complied with,were not complied with,then the state government could always write to the aicte,to enable the latter to take appropriate action. the only requirement as per the statute 9(7) was for the university to obtain the "views" of the state government.obtaining the 'views' of the state government,as already stated,did not amount to obtaining its 'approval'. procedure and conditions for affiliation could not be inconsistent with the provisions of the central act,in particular s.10(k) of the regulation,and the university could not seek approval of government. the university was also one of the agencies consulted by the council of the aicte under regulation 8. the approval of the aicte was sufficient. the direction to the mahatma gandhi university to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the aicte,or any other relevant factors in the university act or its statutes,which are not inconsistent with the aicte act or its regulations. STATUTE u/s.10 of the aicte act,1987,it is stated that it is the duty of the council constituted under the act to take all steps as the said council might think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. subcl.(k) of s.10(1) of aicte act,1987 provides that the council might "grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. sub-cl.(1) of aicte act,1987 permits the council to advice the central government in certain respects,sub-cl.(m) s.11 of aicte act,1987 deals with inspection. regulations have been framed by the aicte in exercise of powers conferred on it by s.23(1) of the aicte act. regulation 2 states that these regulations will be applicable to proposals relating to "(a) grant of approval of the council for establishment of new technical institutions including universities or university departments and deemed universities and for technical institutions functioning on the date of commencement of these regulations at degree and diploma levels; (b) grant of approval of the council for introduction of any course or programme in the technical institutions and technical departments or universities or deemed universities; (c) grant of approval of the council for existing intake capacity of seats and for increase in the annual intake capacity of seats in courses and programmes. regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations. regulation 5 deals with the forms of the applications and regulation 6 deals with the conditions for grant of approval,sub-cls.1 of regulation 6 deals with the financial position, sub-cl.2 with the courses or programmes and sub-cl.3 deals with the power of admissions and sub-cl.4 with tuition fees etc.and sub-cl.5 with the staff and sub-cl.6 with the governing body of the private institutions and subcl.7 with other matters. regulation 8 deals with scrutiny of applications. cl.9(7) of the kerala university first statute.

FACTS the appellant is a trust which wanted to establish a self-financing engineering college and submitted an application to the university of kerala as well as to all india council for technical education (hereinafter called the 'aicte'). there was an inspection by a team of professors of the university and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establishing an engineering college. the aicte sent a communication stating that on the basis of the observations made by the expert committee and the recommendations made by the central regional committee,state level committee and central task force as per the provisions of the aicte regulation,the aicte was granting conditional approval for establishing an engineering and technical college. the abovesaid approval was subject to the fulfilment of specific conditions mentioned in annexure i and the general conditions mentioned in annexure ii to the said letter. in the event of contravention of the conditions,guidelines,norms and regulations of the aicte,the aicte could withdraw the approval at any time. under the impression that the state govt.was to grant permission,the appellant requested the state government for permission to start the college. meanwhile,the mahatma gandhi university by their letter dated forwarded to the government a list of colleges and courses for affiliation during that academic year. the appellant's college was shown as one of the colleges among the affiliated colleges for the said period. the appellant sent a reminder to the government for permission for starting the college for that academic year and ultimately the government refused permission by informing the appellant by a letter. thereafter,the appellant filed writ petition for quashing the said order and for a direction to sanction and establish an engineering college. ARGUMENT in so far as institutions imparting technical education were concerned,the university or the state government had no independent role to play except to the extent provided in the above said enactment,in the present case,the aicte had made inspections and was satisfied that the necessary infrastructure was available and that the appellant would be able to conform to the required standards of the education. the aicte had consulted the state of kerala as well as the mahatma gandhi university. the university had granted conditional approval,as stated earlier.therefore the aicte constituted a task force and obtained its opinion and thereafter granted its approval subject to various conditions. the "policy" of the government was not to grant approval to self-financing engineering colleges to be established,such a policy could not come in the way of the appellant in view of what this court has stated in similar circumstances. the "policy" of the state of kerala at the relevant time was not to grant approval for establish-ment of more engineering colleges in the state. the government had clarified in the counter affidavit filed in the high court that the government "was not in a position" to take a decision to start new engineering colleges,without properly assessing the necessity of more engineering graduates from the state and without exploring the possibility of employment opportunities in the country as a whole. ISSUE (1) whether in view of the judgment of this court in state of tamil nadu & another v.adhiyaman educational & research institute & others,[1995] 4 scc 104 1995 indlaw sc 1631,the provisions of the aicte act,1987 occupied the field and it was not necessary to obtain the further approval of the government or other authority? whether any statute in the state of kerala if it required such approval,would be void? (2) whether the orders of rejection passed by the state government were valid on merits and whether the university should have granted further orders to continue the affiliation solely on the basis of the aicte permission? ANALYSIS the aicte act,1987 was an act to provide for the establishment of all india council for technical education with a view to the proper planning and coordinated development of the technical education system throughout the country,the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith. sub-cl.10 of regulation 8 states that the decision of the council shall be communicated to the state government concerned or the ugc,as the case may be,the concerned university or the state board,the regional office and the applicant before 30th april in case the application was made before the preceding 31st december. as stated earlier,the above provisions of the aicte act,came up for consideration in state of tamil nadu v. adhiyaman educational & research institute (tamil nadu case). in the above matter,the state of tamil nadu granted permission to all private managements to start private engineering colleges without financial commitment to government but subject to conditions. at that time,the aicte act was not on the statute book. the government of tamil nadu granted permission to the trust for the academic year 1987-88 to start an engineering college. s.10 of the madras university act,1923 dealt with various matters (including granting approval for starting new technical institutions),and that so far as these matters were concerned. it is not the university act and the university but it is the central act and the council created under it which will have the jurisdiction. to that extent,after the coming into force of the central act,the provisions of the university act will be deemed to have become unenforceable. because of s.10(k) of the central act which vested the powers of granting approval in the council,the t.n.act of 1976 and the university act,1923 could not deal with any questions of 'approval' for establishment of technical institutions. all that was necessary was that under the regulations,the aicte council had to consult them. in the tamil nadu case,s.10(k) of the aicte act was referred to and the power of 'approval' for establishing a technical institution was considered,in our opinion,even if there was a state law in the state of kerala which required the approval of the state government for establishing technical institutions,such a law would have been repugnant to the aicte act and void to that extent,as held in the tamil nadu case. sub-cl.(1) of cl.(9) of the kerala university first statute required "verification of the facilities that may exist for starting the new colleges/course". the commission was to inspect the site, verify the title deeds as regards the proprietary right of the management over the land (and buildings, if any) offered, building accommodation provided, if any, assets of the management, constitution of the registered body and all other relevant matters. sub-cl.(2) of cl.(9) of kerala university first statute stated that the affiliation "shall depend upon the fulfilment by the management of all the conditions for the satisfactory establishment and maintenance of the proposed institutional courses of studies and on the reports of inspection by the commission or commissions which the university may appoint for the purpose. the procedure for obtaining the affiliation and any conditions which could be imposed by the university,could not be inconsistent with the provisions of the central act. the university could not,therefore,in any event have sought for 'approval' of the state government. the state government in its counter then gave the names of the existing colleges and their location. the court observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new engineering colleges. government could not initially take a decision on the appellant's affiliation because of elections and that matter being one of 'major policy' the government had subsequently "taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector for this year. in thirwnuruga kirupan and variyar thavathiru sundara swamigal medical education & charitable trust v.state of tamil nadu & others,[1996] 3 scc 15 1996 indlaw sc 858,which was a case relating to medical education and which also related to the effect of a central law upon a law made by the state under entry 25 list iii,it was held that the "essentiality certificate cannot be withheld by the state government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the central government alone". after an approval was granted by the aicte or if the state felt that some conditions attached to the permission and required by the aicte to be complied with,were not complied with,then the state government could always write to the aicte,to enable the latter to take appropriate action. the only requirement as per the statute 9(7) was for the university to obtain the "views" of the state government.obtaining the 'views' of the state government,as already stated,did not amount to obtaining its 'approval'. procedure and conditions for affiliation could not be inconsistent with the provisions of the central act,in particular s.10(k) of the regulation,and the university could not seek approval of government. the university was also one of the agencies consulted by the council of the aicte under regulation 8. once that was over,and approval was granted by the aicte,if there was any default on the part of the college in compliance with the conditions of approval,the only remedy for the university was to bring those facts to the notice of the aicte so that the latter could take appropriate action. the approval of the aicte was sufficient. the direction to the mahatma gandhi university to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the aicte,or any other relevant factors in the university act or its statutes,which are not inconsistent with the aicte act or its regulations. STATUTE u/s.10 of the aicte act,1987,it is stated that it is the duty of the council constituted under the act to take all steps as the said council might think fit for ensuring coordinated and integrated development of technical education and maintenance of standards. subcl.(k) of s.10(1) of aicte act,1987 provides that the council might "grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. sub-cl.(1) of aicte act,1987 permits the council to advice the central government in certain respects,sub-cl.(m) s.11 of aicte act,1987 deals with inspection. regulations have been framed by the aicte in exercise of powers conferred on it by s.23(1) of the aicte act. regulation 2 states that these regulations will be applicable to proposals relating to "(a) grant of approval of the council for establishment of new technical institutions including universities or university departments and deemed universities and for technical institutions functioning on the date of commencement of these regulations at degree and diploma levels; (b) grant of approval of the council for introduction of any course or programme in the technical institutions and technical departments or universities or deemed universities; (c) grant of approval of the council for existing intake capacity of seats and for increase in the annual intake capacity of seats in courses and programmes. regulation 4 deals with the requirement of grant of approval and for the commencement of these regulations. regulation 5 deals with the forms of the applications and regulation 6 deals with the conditions for grant of approval,sub-cls.1 of regulation 6 deals with the financial position, sub-cl.2 with the courses or programmes and sub-cl.3 deals with the power of admissions and sub-cl.4 with tuition fees etc.and sub-cl.5 with the staff and sub-cl.6 with the governing body of the private institutions and subcl.7 with other matters. regulation 8 deals with scrutiny of applications. cl.9(7) of the kerala university first statute.