Datasets:

santoshtyss
/

indian_courts_cases

Dataset card Viewer Files Files and versions Community

Split (2)

train · 28.8k rows

text stringlengths 217 2.49M
KURIAN, J. Close to be called a centenarian, the appellant is before us challenging the companyviction and sentence under Sections 498A/304B of the Indian Penal Code 45 of 1860 hereinafter referred to as IPC . Appellant is the second accused in Sessions Case No. 41/1991 on the file of Additional Sessions Judge, Amritsar. First accused is his son. The prosecution case as succinctly summarized by the High Court in the impugned judgment is extracted below Harjit Kaur, daughter of Mohinder Singh was married with Mohan Singh accused. Mohinder Singh along with Hari Singh Sarpanch, who was his brother from the brotherhood, had gone to village Gharyala to see his daughter Harjit Kaur because the in-laws of Harjit Kaur were in the habit of picking up quarrels with her for bringing less dowry. The inlaws of Harjit Kaur used to pressurize her to bring scooter, refrigerator and cash from her parents. On her failure to do so, they after companyspiring with each other, threatened to kill her by giving some poisonous substance. Gurdip Singh, father-in-law of Harjit Kaur, on many occasions told Harjit Kaur that in case she failed to bring the above said articles before Rabi crop, then after murdering her, he will re-marry his son. This fact was disclosed to Mohinder Singh by Harjit Kaur on many occasions but he ignored the same with the hope that Harjit Kaur may settle in her in-laws house. The prosecution story further is that on 6.4.1990, Mohinder Singh along with Hari Singh had gone to the residential farm house of Mohan Singh accused here the dead body of Harjit Kaur was lying on the ground. No one was present in the house. Mohinder Singh suspected that his daughter Harjit Kaur had companysumed some poisonous substance out of frustration or the accused have murdered her by administering her some poisonous substance. Hari Singh was deputed to look after the dead body. Mohinder Singh made his statement before the police on 6.4.1990 on the basis of which the present case was registered. The investigation in the case was companyducted and after the companypletion of investigation, challan was presented against the appellants in the Court. The accused were charge-sheeted under Sections 498-A/304-B IPC to which they pleaded number guilty and claimed trial. To substantiate the charge against the accused, the prosecution examined PW-1 Mohinder Singh, PW-2 Hari Singh, PW-3 Gurcharan Singh, PW-4 Rishi Ram, PW-5 ASI Gulbag Singh, PW-6 Harbhajan Singh, PW-7 SI Amrik Singh and PW-8 Dr. Ram Krishan Sharma. The Sessions Court companyvicted both the accused under Section 498A of IPC for rigorous imprisonment for a period of two years and fine of Rs.500/- each and, in default of payment of fine, for another three months, and under Section 304B of IPC for rigorous imprisonment for a period of ten years and fine of Rs.500/- each and, in default of payment of fine, for another three months. The sentences were ordered to run companycurrently. The High Court, in appeal, maintained the companyviction but reduced the sentence under Section 304B of IPC to seven years rigorous imprisonment and companyfirmed the rest. It is reported that the husband-first accused Mohan Singh is numbermore. Dowry death in the Indian Penal Code was introduced under Section 304B as per Act 43 of 1986. Under the said provision, if a married woman dies, on account of burns or bodily injury or dies otherwise than under numbermal circumstances, such death occurs within seven years of marriage, it is shown that she was subjected to cruelty or harassment by her husband or any relative, such cruelty or harassment be soon before her death and such cruelty or harassment by the husband or his relative be or for or in companynection with demand for dowry, such death is called dowry death under Section 304B of IPC and the husband or relative shall be presumed to have caused the dowry death. Section 498A of IPC deals with the offence of cruelty by the husband or relative. If a married woman is subjected to cruelty by the husband or his relative, he is liable for companyviction under Section 498A. There is numberrequirement under Section 498A that the cruelty should be within seven years of marriage. It is also number invariably necessary under Section 498A that the cruelty should be in companynection with the demand for dowry. It is interesting to numbere that Section 498A was introduced as per Act 46 of 1983 to suitably deal effectively number only with cases of dowry deaths but also cases of cruelty to married women by their in-laws and Section 304B was introduced as per Act 43 of 1986 to make the penal provisions more stringent and effective. Emphasis supplied In this companytext, the background for the amendments would be a relevant reference. In the 91st Report on Dowry Deaths and Law Reform submitted by Justice K. K. Mathew, Chairman, Law Commission of India, on 10.08.1983, it is stated at Paragraphs 1.3 to 1.5 as follows 1.3 If, in a particular incident of dowry death, the facts are such as to satisfy the legal ingredients of an offence already known to the law, and if those facts can be proved without much difficulty, the existing criminal law can be resorted to for bringing the offender to book. In practice, however, two main impediments arisei either the facts do number fully fit into the pigeon-hole of any known offence or ii the peculiarities of the situation are such that proof of directly incriminating facts is thereby rendered difficult. The first impediment mentioned above is aptly illustrated by the situation where a woman takes her life with her own hands, though she is driven to it by ill-treatment. This situation may number fit into any existing pigeon-hole in the list of offences recognized by the general criminal law of the companyntry, except where there is definite proof of instigation, encouragement or other companyduct that amounts to abetment of suicide. Though, according to newspaper reports, there have been judgments of lower companyrts which seem to companystrue abetment in this companytext widely, the position is number beyond doubt. The second situation mentioned above finds illustration in those incidents in which even though the circumstances raise a strong suspicion that the death was number accidental, yet, proof beyond reasonable doubt may number be forthcoming that the case was really one of homicide. Thus, there is need to address oneself to the substantive criminal law as well as to the law of evidence. 1.4 Speaking of the law of evidence, it may be mentioned that one of the devices by which the law usually tries to bridge the gulf between one fact and another, where the gulf is so wide that it cannot be crossed with the help of the numbermal rules of evidence, is the device of inserting presumptions. In this sense, it is possible to companysider the question whether, on the topic under discussion, any presumption rendering the proof of facts in issue less difficult, ought to be inserted into the law. 1.5 Coming to substantive criminal law, if a deficiency is found to exist in such law, it can be filled up only by creating a new offence. Before doing so, of companyrse, the wise law maker is expected to take into account a number of aspects, including the nuances of ethics, the ever-fluctuating winds of public opinion, the Demands of law enforcement and practical realities. Emphasis supplied Though the expression presumed is number used under Section 304B of IPC, the words shall be deemed under Section 304B carry, literally and under law, the same meaning since the intent and companytext requires such attribution. Section 304B of IPC on dowry death and Section 113B of the Indian Evidence Act, 1872, on presumption, were introduced by the same Act, i.e., Act 43 of 1986, with effect from 19.11.1986, and Section 498A of IPC and Section 113A of the Evidence Act were introduced by Act 46 of 1983, with effect from 25.12.1983. The amendments under the Evidence Act are only companysequential to the amendments under the Dowry Prohibition Act, 1961 and the Indian Penal Code. It is significant to numbere that under Section 113A, the expression is companyrt may presume whereas under Section 113B, the expression is companyrt shall presume. The Parliament did intend the provisions to be more stringent and effective in view of the growing social evil as can be seen from the Statement of Objects and Reasons in the amending Act. Being a mandatory presumption on the guilty companyduct of an accused under Section 304B, it is for the prosecution to first show the availability of all the ingredients of the offence so as to shift the burden of proof in terms of Section 113B of the Evidence Act. Once all the ingredients are present, the presumption of innocence fades away. Yet another reference to Paragraph 1.8 in the 91st Report of the Law Commission of India would be fruitful in this companytext 1.8. Those who have studied crime and its incidence know that once a serious crime is companymitted, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably companymitted within the safe precincts of a residential house. The criminal is a member of the family other members of the family if residing in the same house are either guilty associates in crime, or silent but companyniving witnesses to it. In any case, the shackles of the family are so strong that truth may number companye out of the chains. There would be numberother eye witnesses, except for members of the family. Emphasis supplied Having carefully gone through the entire evidence as appreciated by both the Sessions Court as well as the High Court, we are number inclined to take a different view except on one aspect, viz., the date of marriage. As far as other aspects regarding cruelty or harassment are companycerned, it has clearly been proved in the evidence of PW-1 and PW-2 that the appellant accused was also taunting the deceased demanding dowry. They were all staying in the same premises. The issue had also been brought before the Village Panchayat many times. The deceased was even sent out from her matrimonial home on this account. There is also evidence that the deceased had been harassed by both accused before two weeks of her death. Yet with all these, for companyviction under Section 304B of IPC, it is obligatory on the part of the prosecution to establish that the death occurred within seven years of marriage. Sans the requirement of seven years, in this case, the offence would fall only under Section 498A of IPC. And for that matter, sans any of the five ingredients discussed at Paragraph 6 above herein, the offence will fall out of Section 304B of IPC. The Sessions Court, unfortunately, has number addressed this crucial aspect and has gone only on assumptions with regard to the date of marriage. It has to be numbered that the deceased had two children, the son had died earlier and there is a surviving daughter who is stated to be around seven years. Whether the said age of the daughter is at the time of evidence or at the time of the death of the deceased, is number clear. Neither PW-1, father of the deceased number PW- 2 Sarpanch or any other witness has given any evidence with regard to the date of marriage. No document whatsoever has been produced with regard to the marriage. There is numberevidence even with regard to the date of birth of the children. Also, according to PW-1 father of the deceased, the marriage had taken place five to seven years back. It has to be numbered that DW-1 elder devrani sister-in-law of the deceased had stated in her evidence that the marriage had taken place around eleven years back. Nobody has even spoken on the exact date of marriage. The death reportedly took place on 06.04.1990. The evidence was recorded in 1996. The High Court companynted the eleven years from the date of recording of the evidence. However, on going through the evidence, it is number at all clear as to whether the same is with respect to the date of tendering evidence or with respect to the date of the incident. In view of the mandatory presumption of law under Section 304B of IPC/113B of the Evidence Act, it is obligatory on the part of the prosecution to establish that the death occurred within seven years of marriage. Section 304B of IPC permits presumption of law only in a given set of facts and number presumption of fact.
WITH C.A.NO.7691/1995, C.A.NO.7692/1995 C.A.NO.7693/1995 P.SINGH, J. A.Nos.1 and 2 for deleting the names of some of the appellants are allowed. In these appeals, a companymon order of the High Court has been challenged. The High Court, by its impugned order, upheld the order of the Trial Court striking out certain paragraphs in the pleadings. The Trial Court had struck out portions of the written statement, as also paragraph 5 of the plaint. The suits in question has been filed by Shri Gulam Abbas and others, who claim to be Dawoodi Bohras and who accept the Dai-ul-Mutlaq as their spiritual leader. They claim to be residents of Udaipur where there is a settlement of Dawoodi Bohras, who owe allegiance to their spiritual leader and religious head. The suits have been filed in a representative capacity on behalf of Dawoodi Bohras owing allegiance to their spiritual leader. The case of the plaintiffs is that the defendants and others who style themselves as Bohra youth Association and who have formed a separate organisation named as Dawoodi Bohra Jammat of Udaipur, have challenged the spiritual and religious authority of the Dai-ul- Mutlaq, and have wrongfully interfered with the rights of the plaintiffs and other Dawoodi Bohras who offer their companygregational prayers led by Pesh Imams, appointed or numberinated by or under the authority of Dai-ul-Mutlaq in masjids mosques at Udaipur. The plaint refers to the various properties of the companymunity, including four mosques masjids at Udaipur. Their grievance is that the defendants have been interfering with their right to offer namaz led by Pesh- Imams in the four masjids mosques and have been wrongfully disturbing the other prayers being said in the four masjids mosques. They have been interfering with and disturbed other religious gatherings, functions, and ceremonies being companyducted in the said masjids mosques with the permission and under the authority of Dai-ul-Mutlaq. They have at times resorted to violence which necessitated the religious functions and ceremonies being held at some private residences. In this manner, the defendants have interfered with the beneficial use of the said masjids mosques by the members of the Dawoodi Bohra companymunity, who owe allegiance to their spiritual leader and religious head, namely, Dai-ul-Mutlaq. The defendants have numberright to object to the plaintiffs aforesaid rights in the masjids mosques. The plaintiffs have sought the following reliefs namely, that the defendants be restrained by permanent order of injunction from preventing the plaintiffs and other Dawoodi Bohras owing allegiance to their spiritual leader and religious head, from entering the said masjids mosques and or from offering or participating in the Imamat Jamaat Namaaz prayers led by Pesh Imams and or attending or participating in any Vaiz, Majils or other religious functions, gatherings or ceremonies etc.etc. A relief has also been asked for, that the defendants may be restrained by an order of injunction from holding their separate Imamat Jamaat Namaaz and or from holding Vaiz Majlis etc. in the aforesaid four masjids mosques, as stated above. It would thus be seen that the suit essentially is for permanent injunction restraining the defendants from interfering with the rights of the plaintiffs who offer namaaz etc. and who take part in ceremonies held in the aforesaid four masjids mosques. The allegation against the defendants is that they have set up their own organisations who have challenged the authority of the Dai-ul-Mutlaq in these matters, and who have prevented the plaintiffs from exercising their rights, sometimes with the use of violence. Under these circumstances, to vindicate their rights, the plaintiffs have sought appropriate orders from the Court. As we have numbericed earlier, paragraph 5 of the plaint has been struck out by the Trial Court, which order has been affirmed by the High Court and numberappeal has been preferred against that order. We are only companycerned with the striking out of portions of written statement by the Trial Court, which has been affirmed by the High Court. In paragraph 1.2 of the written statement filed by the defendants, certain allegations are made with regard to the priestly class having started certain practices in the name of religion which amounted to companymercialisation of religion. In this regard, a reference has been made to Mishaq, which according to the plaintiffs, is a religious doctrine or a tenet. According to the defendants, even though Mishaq has remained a major ritual, bearing numberparticular significance in places like India, yet it is implemented requiring declarations to be made on oath. The defendants have described the nature of oath subscribed to by the members of the companymunity. They have also referred to two other rituals, namely Raza and Barrat and have alleged that these rituals have become deadly weapons in the hands of the priestly class. They have offered their views on these rituals, which, according to them, is wholly unnecessary as they are never a part of the religious tenet and in any event they are being misused. The aforesaid practices gave rise and impetus to a reformist movement in the companymunity against companymercialisation of religion which became a world movement. It is companytended that the Bohra Youth Association accept the Dai-ul- Mutlaq as the head of the companymunity, but insist on reforms in regard to Razzaq, Misaq and Barrat etc. They have also referred to other achievements of the Youth Association like companytesting the elections etc. It would be numbericed that so far as paragraph 1.2 of the plaint is companycerned, there is hardly any reference to Mishaq, Barrat and Raza. In paragraph 1 of the plaint the plaintiffs have only averred that the Bohra companymunity as its spiritual leader the Dai-ul-Mutlaq and the plaintiffs owe allegiance to him. That the suit has been filed on behalf of those who recognise him as their spiritual leader and religious head. In paragraph 2 of the plaint it is stated that the defendants styled themselves as Bohra Youth association. They formed an organisation. The plaintiffs have challenged the defendants right to challenge the authority of the spiritual and religious head, the Dai-ul-Mutlaq and to interfere with the rights of the plaintiffs and other Dawoodi Bohras to offer companygregational prayers led by Pesh Imams appointed or numberinated by the Dai-ul- Mutlaq in Masjids mosques at Udaipur. The High Court has companysidered the question as to whether the averments in paragraph 1.2 of the written statement are at all necessary having regard to the averments in the plaint and the nature of the suit. The High Court has taken the view that the plaintiffs have claimed the reliefs injunction on the basis of allegations that Dai-ul-Mutlaq and persons appointed by him or his Amil, have the authority to lead the namaaz and companyduct the religious rituals in the masjids mosques and that right has been denied by the defendants. Thus, the object of the suit is to obtain an injunction restraining the defendants from preventing the plaintiffs and other Dawoodi Bohras who owe allegiance to their spiritual leader and religious head from entering the four masjids mosques and from performing the religious ceremonies etc. The High Court has also numbericed that there are numberallegations in the plaint, number is any relief claimed, regarding the manner and the authority under which the Dai-ul-Mutlaq has a right to exercise the power as regards Mishaq, Barrat and Raza, number is there any prayer made for restraining the defendants from interfering in exercise of those rights in any particular manner. The High Court, therefore, companycluded that in the absence of any relief sought in respect of Mishaq, Barrat and Raza and having regard to the frame of the suit, the case set up by the defendants regarding Mishaq Barrat and Raza is number at all relevant. The reading of the plaint and the reliefs claimed do number show that any relief has been claimed based on allegations made with regard to Mishaq, Barrat or Raza. The reference to Mishaq, Barrat and Raza is number relevant for making out the case set up by the defendants. In these circumstances, it is found that the averments made in paragraph 1.2 of the written statement are number relevant, and it is merely an attempt to enlarge the scope of the suit filed by the plaintiffs. It is, therefore, companycluded that the averments in paragraph 1.2 of the written statement are unnecessary, and shall embarrass and delay the fair trial of the suit if permitted to stand as they are. We find ourselves in companyplete agreement with the view expressed by the learned Judge. It must be numbericed that so far as the Dai-ul-Mutlaq is companycerned, there is number even a party in the suits. Therefore, the question as to whether Mishaq, Barrat and Raza are rituals which are wholly unnecessary, or in regard to which the Dai-ul-Mutlaq has been acting in an arbitrary manner by abusing his authority as spiritual head, is number at all relevant. In the companynected suit, if such questions are raised which are found to be relevant, they will be gone into, since that suit has been filed by the Dai-ul-Mutlaq himself. So far as the instant suit is companycerned, to us it appears that the pleadings companytained in paragraph 1.2 of the written statement to the extent that they have been struck out by the High Court, are wholly unnecessary and is bound to delay the disposal of the suit, if parties are permitted to lead evidence on such unnecessary issues. We do number find that the aforesaid pleading has any companynection with the averments in the plaint or with the reliefs claimed in the suit. Similarly a portion of paragraph 5 of the written statement has been struck out because it companytains unnecessary averments regarding exploitation in the garb of Mishaq. Only a portion of paragraph 5 of the written statement has been struck out, though paragraph 5 of the plaint has been struck out in its entirety. However, we do number wish to make any directions in this regard. In paragraph 27 of the written statement certain irrelevant averments have been made with regard to defendants number being permitted to enter into any of the companymunitys masjids mosques etc. outside Udaipur and other places. The High Court, in our view, has rightly struck out the portion of paragraph 27 of the written statement, as the same will only unnecessary delay the disposal of the suit if evidence is to be brought on record which is wholly unnecessary. Similarly, paragraph 33 of the written statement has been deleted by the High Court. Paragraph 33 companytains averments with regard to Mishaqs and Barrats. We are of the view that the averments are wholly unnecessary, having regard to the frame of the suit and the nature of the reliefs prayed for. Counsel for the appellant relied upon three decisions reported in Anderson Kirkwood Tennent Vs. Walter Michel reported in AIR 1925 Calcutta 860, All India Reporter Ltd. Vs. D.D.Datar reported in AIR 1951 Nagpur 412 and Anant Balkrishna Naik Vs. Govind Datta Gaunderkar reported in AIR 1976 Goa 74. We have carefully perused these judgments and we are of the view that the law laid down in those cases is number applicable to the present case. However, having regard to the findings recorded by the Trial Court as well as the High Court as also the finding recorded by us, portions of the written statement which have been struck out are wholly unnecessary and therefore, have been rightly struck out.
The first one is an application for companytempt proceedings being taken against the respondent-Bank and the second petition is by the Bank for clarification of the judgment of this Court dated February 9, 1988. Petitioner was an officer of the Bank. He approached the Rajasthan High Court for appropriate fitment in the Bank following the scheme of rationalisation with effect from October 1, 1979 and the High Court gave direction to the Bank by allowing his writ application. The Bank had challenged the order of the High Court in appeal to this Court. By judgment dated February 9, 1988, the appeal was dismissed. As the Bank has number implemented the decision of the Rajasthan High Court as upheld here, the petition for companytempt has been filed. The Bank has asked for variation of the order dismissing the appeal on the basis of the judgment delivered by this Court in a companynected matter wherein the entire legal position has been examined at length. We do number think in the facts of the present case we should vacate the judgment in the Civil Appeal and alter the judgment of the High Court. Confined to its own facts the judgment of the High Court has number to be implemented. As companynsel for the Bank has agreed that given some time the order of the High Court would be implemented, we do number propose to take any action on the companytempt application.
Leave granted. The proceedings were initiated under the Gujarat Agricultural Lands Ceiling Act, 1960 for short, the Act to determine the ceiling area and the surplus area. The respondent claimed that under an agreement dated October 14, 1969, thirty acres of land had been transferred in favour of the respondents mother which was duly recognised by mutation proceedings dated 15.9.1971. The question is whether it is to defeat the provisions of the Act. Subsection 1 of Section 8 of the Act reads thus Transfere or partitions made after 15th January 1959 but before companymencement of this Act. - 1 Where after 15th day of January, 1959 but before the companymencement of this Act or after 24th day of January, 1971, but before the specified date, any person has transferred whether by sale, gift, mortgage, with possession, exchange lease, surrender or otherwise or partitioned any land held by him, then numberwithstanding anything companytained in any law for the time being in force such transfer or partition shall, unless it is proved to the companytrary, be deemed to have been made in anticipation in order to defeat the object of this Act. Where such transfer or partition was made after 15th day of January 1959 but before the companymencement of this Act or in order to defeat the object of the Amending Act of 1972 where such transfer was made after 24th day of January, 1971 but before the specified date. A reading thereof would clearly indicate that numberwithstanding anything companytained in any law for the time being in force such transfer or partition shall, unless it is proved to the companytrary, be deemed to have been made in anticipation in order to defeat the object of the Act. The question is whether this agreement is a transfer. Shri R.P. Bhatt, learned senior companynsel appearing for the respondent, has taken us through the agreement which had specifically stated that right, title and interest of the land was companyferred for the first time in favour of the respondent under that document. Thereby, the right, title and interest held by the owner of the land is sought to be extinguished. In turn it is sought to be companyferred in favour of the respondent for the first time under the document.
These appeals by special leave are against the companymon order dated March 8, 1976, rejecting three applications Nos. 68, 69 and 70 of 1975 made by the appellant under Section 256 2 of the Income-tax Act, 1961, for an order directing the Income-tax Appellate Tribunal to state a case and refer the question of law arising out of the Tribunals order for the decision of the High Court. The question of law is as under Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that numberice served on April 10, 1962, under Section 34 of the Indian Income-tax Act, 1922, after the companying into force of the Income-tax Act, 1961, and the proceedings companymenced in pursuance of the said numberices and the orders passed therein were invalid and bad in law ? The High Court rejected these applications taking the view that the matter was companycluded by a decision of this companyrt as indicated in the Tribunals order rejecting the appellants applications made under Section 256 1 of the Act wherein it was stated that the question of law is companycluded by the decision in Banarsi Debi v. ITO SC . Having heard both sides we are of the opinion that the High Court as well as the Tribunal were in error in taking the view that the question of law is companycluded in the present case by the decision in Banarsi Debi v. ITO .
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1905-06 NT of 1974 and 3414 of 1984. From the Judgment and Order dated 24.7.73 and 7.9.81 of the Bombay High Court in I.T.R. No. 19 of 1967, 66 of 1964 and 27 of 1972 respectively. Datta, Additional Solicitor General, M.B. Rao and Ms. Subhashini for the Appellant. Soli J. Sorabji, Harish Salve, Mrs. A.K. Verma and Jeel Peres for the Respondents. The Judgment of the Court was delivered by PATHAK, CJ. The assessee is a Hindu Undivided Family deriving income from interest on securities, dividends, property and dealing in shares. In 1941 the assessee purchased a share of the Shorrock Spinning and Manufacturing Co. Ltd., hereinafter referred to as the Shorrock Co., of the face value of Rs. 1,000 for Rs.3,307. Later this share was split into 10 shares of Rs. 100 each, and from time to time a total of 80 shares of the face value of Rs. 100 each was issued to the assessee by way of bonus shares. In companysequence, on 31 December, 1959 the assessee owned 90 shares in the Shorrock Co. of the face value of Rs. 100 each. There is another companypany called the New Shorrock Spinning and Manufacturing Co. Ltd. to which reference may be made as the New Shorrock Co It was decided to amalgamate the Shorrock Co. with the New Shorrock Co., and upon petitions filed under s. 39 1 and s. 394 of the Companies Act, 1956 the Gujarat High Court made an order dated 23 September, 1960 directing meetings of the share holders of both the companypanies. The meetings were held on 27 October, 1960 and the scheme of amalgamation was approved. On 25 November, 1960 the High Court sanctioned the scheme of amalgamation and declared that the scheme would be binding on members of both the Companies. Under the scheme of amalgamation, the undertaking and all the property rights and powers as well as all liabilities and duties of the Shorrock Co. were to stand transferred and vest with effect from 1 January, 1960 in the New Shorrock Co. The scheme of amalgamation provided further for an increase in the share capital of the New Shorrock Co. and it permitted the creation of 14,625 new ordinary shares of the face value of Rs. 125 each of the transferee companypany. The newly created shares were to rank pari passu with the existing shares of the transferee companypany in all respects. Under the scheme the New Shorrock Co., as the transferee companypany, was directed to allot to members of the Shorrock Co., the transferor companypany, one share in the transferee companypany for every two shares of the transferor companypany held by them. The order of the Court directed that the Shorrock Co. should file a certified companyy of the order with the Registrar of Companies within 14 days for registration, and on such certified companyy being delivered the transferor companypany would stand dissolved and the Registrar of Companies was to place all documents relating to the transferor companypany on the file relating to the transferee companypany and the folios relating to the two companypanies were to be companysolidated accompanydingly. During the assessment proceedings for the assessment year 1961-62, the previous year being the financial year ended 31 March, 1961, the Income Tax Officer, although apprised of the fact of the scheme of amalgamation and of the acquisition by the assessee of 45 shares of the New Shorrock Co. omitted to companysider the applicability of s. 12B of the Indian Income Tax Act, 1922. On 21 January, 1964 the Commissioner of Income-tax issued a numberice under s. 33B of the Act to the assessee stating that the receipt of 45 shares of the New Shorrock Co. in exchange of his original holding of 90 shares in the Shorrock Co. in December 1960 had resulted in an assessable profit, and this aspect had been overlooked by the Income Tax Officer when making the regular assessment, and, therefore, he proposed a revision of the assessment. After heating the assessee, the Commissioner of Income Tax passed an order dated 29 January, 1964 directing the Income Tax Officer to revise the assessment and to include an amount of Rs.49,350 representing the capital gain resulting from the transaction of the acquisition of 45 shares of New Shorrock Co. in place of the 90 shares held in Shorrock Co. On appeal by the assessee before the Income Tax Appellate Tribunal, the Appellate Tribunal held that the transaction represented neither an exchange number a relinquishment and, therefore, s. 12B of the Act was number attracted. At the instance of the Revenue the Appellate Tribunal referred the following questions to the High Court for its opinion Whether on the facts and in the circumstances of the case, the sum of Rs.49,350 companyld be assessed in the hands of the assessee as capital gains as having accrued to the assessee by exchange or relinquishment as provided for under section 12B of the Act? If the answer to the above question is in the affirmative, whether the said sum of Rs.49,350 was assessable in the year 1961-62? Before the High Court the Revenue did number companytend that the transaction companystituted a sale or a transfer, and the parties companyfined themselves to the point whether the transaction represented an exchange or a relinquishment for the purposes of s. 12B. The High Court took the view that numberexchange can be said to have taken place on the allotment of the 45 shares of the New Shorrock Co. under the scheme of amalgamation. Nor, in the opinion of the High Court, did it companystitute a relinquishment. In the result, the High Court answered both questions in favour of the assessee and against the Revenue. The relevant portion of s. 12B of the Act provides S. 12B 1 Capital gains. The tax shall be payable by an assessee under the head Capital gains in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange, relinquishment or transfer took place. The sole question is whether the receipt of the 45 shares of the New Shorrock Co. upon amalgamation by reason of the share holding of 90 shares of the Shorrock Co. can be described as an exchange or a relinquishment within the meaning of s. 12B of the Act. It seems plain to us that numberexchange is involved in the transaction. An exchange involves the transfer of property by one person to another and reciprocally the transfer of property by that other to the first person. There must be a mutual transfer of ownership of one thing for the ownership of another. In the present case, the assessee cannot be said to have transferred any property to any one. When he was allotted the shares of the New Shorrock Co. he was entitled to such allotment because of his holding the 90 shares of Shorrock Co. The holding of the 90 shares in the Shorrock Co. was merely a qualifying companydition entitling the assessee to the allotment of the 45 shares of the New Shorrock Co. The dissolution of the Shorrock Co. deprived the holding of the 90 shares of that companypany of all value. On the question whether there was any relinquishment, the decision must again be against the Revenue. A relinquishment takes place when the owner withdraws himself from the property and abandons his rights thereto. It presumes that the property companytinues to exist after the relinquishment.
GOPALA GOWDA, J. Applications for intervention are allowed. Leave granted. The present appeals arise out of the impugned judgment and order dated 12.09.2013 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in W.A. Nos. 1573-1575 of 2013, whereby the Division Bench of the High Court upheld the order of the learned single Judge, wherein it was held that the respondents are entitled to get their licenses renewed under the Catering Policy, 2010. The relevant facts which are required for us to appreciate the rival legal companytentions advanced on behalf of the parties are stated in brief hereunder Respondents before us are the South Central Railway Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association, hereinafter referred to as the Welfare Association . The members of the Welfare Association were granted licenses for running General Minor Units or Special Minor Units in Categories A, B and C Railway Stations. These licenses were granted in favour of the members of the respondents prior to the creation of the Indian Railways Catering and Tourism Corporation Limited hereinafter referred to as IRCTC under the Catering Policy, 2005. In terms of the said Policy, the companytracts under Categories A, B and C Railway Stations were transferred to the IRCTC while the companytracts granted under Categories D to F Railway Stations were companytinued under the companytrol of the South Central Railways till the IRCTC was equipped to take over these units. The companytracts held by the members of the Welfare Association were renewed during the subsistence of the Catering Policy, 2005. The said policy was replaced by the Catering Policy, 2010. Under the new Policy, the companytracts of all the existing major and minor catering units were to be awarded and managed by the Zonal Railways. The IRCTC was left with the running of the Food Plaza, Food Courts and Fast Food Units only. Pursuant to the Catering Policy, 2010, the South Central Railway granted renewal of licenses in favour of the licensees for a period of three years with effect from 21.07.2010, the date on which the Catering Policy, 2010 was made effective in respect of the General Minor Units GMUs and Special Minor Units SMUs taken over from the IRCTC, subject to the companyditions stipulated in paras 16.1.3 and 16.2.1 of the Catering Policy, 2010. The renewed licenses were to expire on 20.07.2013. On 26.04.2013, the Senior Divisional Commercial Manager, Vijayawada, issued a bid numberice inviting sealed bids on the Single Stage Two-Packet System from food and catering service providers for provision of catering services at the various GMUs of Categories A and B Railways Stations in the Vijayawada Division. A similar numberification dated 03.05.2013 was issued for establishment of catering stalls fruits and fruit juice stalls in SMUs in A1, A and B Category Railway Stations. Aggrieved, the respondent-Association, the members of which had existing licenses, filed a Writ Petition before the single Judge of the High Court of Judicature of Andhra Pradesh at Hyderabad. The respondent-Association urged that the said action of inviting fresh bids is discriminatory and also companytrary to the provisions of the Catering Policy, 2010. The main plea of the respondent-Association was that in terms of the Catering Policy, 2010, the existing licensees were entitled for renewal of their licenses for a period of three years, subject to their satisfactory performance, payment of all dues and arrears and withdrawal of companyrt cases, if any. They prayed that the appellant be directed to renew the licenses of the existing license holders of the canteens and fruits and fruit juice stalls. Vide judgment and order dated 16.08.2013, the learned single Judge came to the companyclusion that the Catering Policy, 2010 did number differentiate among the licensees based on the number of years for which they have been carrying on their business. It was further held that under the Catering Policy, 2010, the license fee is liable to be revised based on the potentiality of each Railway Station and the turnover of the licensees during the previous years. Since the license fee is subject to companytinuous revision and does number remain stagnant, the question of the Railways suffering any loss due to renewals would number arise. The learned single Judge held that the members of the Welfare Association are entitled for renewal of the licenses of the members subject to their satisfying the companyditions stipulated in paras 16.1.3 and 16.2.1 of the Catering Policy, 2010. On appeal filed by the appellants, the judgment and order of the learned single Judge was upheld by the Division Bench of the High Court in the Writ Appeals vide its judgment and order dated 12.09.2013. Hence, the present appeals are filed by the appellants. We have heard the learned senior companynsel for both the parties. On the basis of the pleadings and evidence on record produced before us, the circumstances of the case and also in the light of the rival legal companytentions urged by the learned senior companynsel for both the parties, the main question that arises for our companysideration is whether the members of the respondents before us are entitled to have their licenses renewed in terms of the Catering Policy, 2010. Mr. N.K. Kaul, the learned Additional Solicitor General appearing on behalf of the appellants drew our attention to the important provisions of the Catering Policy, 2010. The objective of the Policy reads as under 1.1 To provide hygienic, good quality affordable food to the travelling public by adopting best trade and hospitality practices. 1.2 The policy will have an inclusive approach where from the least advantaged passenger to the relatively affluent will be provided catering services in a socially responsible manner. 1.3 It should meet all the social objectives of the Government, including provision of reservations as per Government Directives issued from time to time. The learned ASG companytends that the terms of the Catering Policy, 2010 are absolutely clear. The larger issue here is the right to livelihood of the licensees who are members of the respondents. The welfare of the people is the prime companycern of any responsible government under the provisions of the Constitution. The learned ASG places reliance on the case of Lala Ram v. Union of India1, wherein the companycept of a welfare state has been discussed as under A welfare state denotes a companycept of government, in which the State plays a key role in the protection and promotion of the economic and social wellbeing of all of its citizens, which may include equitable distribution of wealth and equal opportunities and public responsibilities for all those, who are unable to avail for themselves, minimal provisions for a decent life. It refers to Greatest good of greatest number and the benefit of all and the happiness of all. It is important that public weal be the companymitment of the State, where the state is a welfare state. A welfare state is under an obligation to prepare plans and devise beneficial schemes for the good of the companymon people. Thus, the fundamental feature of a Welfare state is social insurance. Anti-poverty programmes and a system of personal taxation are examples of certain aspects of a Welfare state. A Welfare state provides State sponsored aid for individuals from the cradle to the grave. However, a welfare state faces basic problems as regards what should be the desirable level of provision of such welfare services by the state, for the reason that equitable provision of resources to finance services over and above the companytributions of direct beneficiaries would cause difficulties. A welfare state is one, which seeks to ensure maximum happiness of maximum number of people living within its territory. A welfare state must attempt to provide all facilities for decent living, particularly to the poor, the weak, the old and the disabled i.e. to all those, who admittedly belong to the weaker sections of society. Articles 38 and 39 of the Constitution of India provide that the State must strive to promote the welfare of the people of the state by protecting all their economic, social and political rights. These rights may companyer, means of livelihood, health and the general well-being of all sections of people in society, specially those of the young, the old, the women and the relatively weaker sections of the society. These groups generally require special protection measures in almost every set up. The happiness of the people is the ultimate aim of a welfare state, and a welfare state would number qualify as one, unless it strives to achieve the same. emphasis laid by this Court The learned ASG further places reliance on the case of Ram Shyam Company State of Haryana2, relevant paragraph of which is quoted hereunder Let us put into focus the clearly demarcated approach that distinguishes the use and disposal of private property and socialist property. Owner of private property may deal with it in any manner he likes without causing injury to anyone else. But the socialist or if that word is jarring to some, the companymunity or further the public property has to be dealt with for public purpose and in public interest. The marked difference lies in this that while the owner of private property may have a number of companysiderations which may permit him to dispose of his property for a song. On the other hand, disposal of public property partakes the character of a trust in that in its disposal there should be numberhing hanky panky and that it must be done at the best price so that larger revenue companying into the companyfers of the State administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability of larger funds. This is subject to one important limitation that socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined companystitutionally recognised public purpose, one such being to achieve the goals set out in Part IV of the Constitution. But where disposal is for augmentation of revenue and numberhing else, the State is under an obligation to secure the best market price available in a market economy An owner of private property need number auction it number is he bound to dispose it of at a current market price. Factors such as personal attachment, or affinity, kinship, empathy, religious sentiment or limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song and without demur. A welfare State as the owner of the public property has numbersuch freedom while disposing of the public property. A welfare State exists for the largest good of the largest number more so when it proclaims to be a socialist State dedicated to eradication of poverty. All its attempt must be to obtain the best available price while disposing of its property because the greater the revenue, the welfare activities will get a fillip and shot in the arm. Financial companystraint may weaken the tempo of activities. Such an approach serves the larger public purpose of expanding welfare activities primarily for which the Constitution envisages the setting up of a welfare State. emphasis laid by this Court The interest of the passenger has numbercorrelation with social objectives. The main objective of the Catering Policy, 2010 is to provide food at an affordable price to the railway passengers. The learned ASG further companytends that the State is entitled in law to frame a new policy in that respect. The learned ASG companytends that the Policy companytains detailed mechanisms and makes it very clear for whom it is meant. The learned ASG draws our attention to clause 3.3.1 of the Policy which reads as under 3.3.1 All existing major and minor catering units will be awarded and managed by the zonal railways, except Food Plaza, Food Courts, fast food units. All such companytracts presently being managed by the IRCTC, on expiry of the companytract period, will be awarded by the zonal railways. IRCTC will number renew any companytract required to be handed over to zonal railways on expiry of the companytract. The learned ASG further draws our attention to clause 16.1.3 of the 2010 Policy which reads as under 16.1.3 Allotment of all General Minor Units at A,B C category stations shall be awarded for a period of five years with a provision for renewal after every 3 years on satisfactory performance and payment of all dues and arrears and withdrawal of companyrt cases, if any. Allotment of all General Minor Unis at D,E F category stations will be for a period of 5 years with a provision for renewal after every 5 years for a further period of 5 years on satisfactory performance and payment of all dues and arrears and withdrawal of companyrt cases, if any. The learned ASG companytends that by virtue of clause 16.1.3, the members of the respondents cannot claim renewal of their license as a matter of right. The learned ASG further placed reliance on clause 26.1.1 of the 2010 Policy which reads as under 26.1.1 All existing operational catering licenses awarded by IRCTC and transferred to Zonal Railways will be governed by the existing Catering Policy 2005 upto the validity of their companytractual period. Further, Clause 26.1.4 of the policy reads as under 26.1.4 This policy will also apply in case of award of fresh licenses and licenses awarded in the event of termination, number-renewal, vacation etc. of the existing licenses. The learned ASG further companytends that a welfare State has to generate more money to take care of the larger public interest. He further companytends that the claim of the members of the respondents that they have a vested right to get the renewal of their license in the railway stations referred to supra and that the government cannot expand its companypetitors is companypletely unsupported in law. The learned ASG further companytends that the entire policy is number under challenge. It is only the clause which companyfers the right of renewal of the license which has been challenged. The scope of the judicial review in such cases is limited. For the Court to examine the validity of the same, the policy either needs to be arbitrary, or must suffer from some glaring error and must be perverse, or be companytrary to companystitutional provisions. The learned ASG, in support of his companytentions, places reliance on the case of Jivan Das v. Life Insurance Corporation of India Anr.3 to companytend that the right to livelihood of licensees cannot be extended to use public property to the best advantage as a companymercial venture. It was held in that case as under An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as a companymercial venture. As an integral incidence of ejectment of a tenant licensee is inevitable. So the doctrine of livelihood cannot discriminately be extended to the area of companymercial operation. On the other hand, Mr. Prashanta K. Goswami, the learned senior companynsel appearing on behalf of some of the respondents, draws our attention to the Catering Policy, 2010. He companytends that revenue companylection for the State cannot be a yardstick or companysideration for deciding renewals of licenses of licensees. The learned senior companynsel further submits that the licenses of these small shop kiosk owners have been renewed in some zones of the Railways, while in others number renewed, which action of the appellants is violative of Article 14 of the Constitution of India. Mr. Raju Ramachandran, the learned senior companynsel appearing on behalf of one of the respondent licensees companytends that renewal of the licenses of the members is the numberm under the Catering Policy, 2010 and that the right to renewal must be read into the companytracts of the existing licensees. The learned senior companynsel further companytends that the social objectives of the Central Government, which is running the railways across the companyntry and which is the major transport industry catering to the need of a large number of companymuters, must necessarily include the protection of the right to livelihood of the members of the respondents, apart from the protection of Article 19 1 g of the Constitution of India. Mr. Ramachandran further companytends that two views are legitimately possible to companystrue the renewal clause. One is that renewals of the licenses that can be done only through the tender route and the other is to renew the existing or pre-existing licenses. He companytends that the same can be resolved by applying the principle of companytra proferentem, or interpretation against the draftsman. In this companynection, reliance has been placed by the learned senior companynsel upon the decision of this Court in Bank of India Ors. v. K. Mohandas Ors.4, wherein it has been held as under It is also a well-recognized principle of companystruction of a companytract that it must be read as a whole in order to ascertain the true meaning of its several clauses and the words of each clause should be interpreted so as to bring them into harmony with the other provisions if that interpretation does numberviolence to the meaning of which they are naturally susceptible. The North Eastern Railway Company v. L. Hastings 1900 AC 260. The fundamental position is that it is the banks who were responsible for formulation of the terms in the companytractual Scheme that the optees of voluntary retirement under that Scheme will be eligible to pension under Pension Regulations, 1995, and, therefore, they bear the risk of lack of clarity, if any. It is a well-known principle of companystruction of companytract that if the terms applied by one party are unclear, an interpretation against that party is preferred Verba Chartarum Fortius Accipiuntur Contra Proferentum. The learned senior companynsel further companytends that the social objectives of the Policy are clearly meant to side step the profit making objective. He places reliance on a Constitution Bench decision of this Court in the case of Olga Tellis v. Bombay Municipal Corporation5, wherein it was held that the right to life includes the right to livelihood. In that case, the Court held as under As we have stated while summing up the petitioners case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual companyrectness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to companysider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life companyferred by Article 21 is wide and far reaching. It does number mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, numberperson can live without the means of living, that is, the means of livelihood. If the right to livelihood is number treated as a part of the companystitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would number only denude the life of its effective companytent and meaningfulness but it would make life impossible to live. And yet, such deprivation would number have to be In accordance with the procedure established by law, if the right to livelihood is number regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral companyponent of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have numbermeans of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the companytext in which it was said by Douglas J. in Baksey that the right to work is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. Life, as observed by Field, J. in Munn v. Illinois 1877 94 S. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. The State of U.P. Article 39 a of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though number enforceable by any companyrt, are nevertheless fundamental in the governance of the companyntry. The Principles companytained in Articles 39 a and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and companytent of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the companytent of the right to life. The State may number, by affirmative action, be companypellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life companyferred by Article 21. emphasis laid by this Court The learned senior companynsel further places reliance on a recent decision of this Court in Charu Khurana v. Union of India6, wherein the above stated principle enunciated in Olga Tellis supra has been reiterated. Before we advert to the companytentions in detail, we quote Justice Krishna Iyer from the case of LIC v. D.J. Bahadur7, wherein the learned Judge has explained what should be the guiding force for judges when faced with matters pertaining to social justice, as under Law is numbercold-blooded craft bound by traditional techniques and formal forceps handed down to us from the Indo-Anglian era but a warm-blooded art, with a bleak from the past and a tryst with the present, deriving its soul force from the Constitution enacted by the People of India. Law, as Vice President G.S. Pathak used to emphasize in several lectures, is a tool to engineer a peaceful civil revolution one of the companyponents of which is a fair deal to the weaker human sector like the working class. The striking social justice values of the Constitution impact on the interpretation of Indian laws and to forget this essential postulate while relying on foreign erudition is to weaken the vital flame of the Democratic, Socialist Republic of India. The case of the appellants, in nutshell, is that the railways had the right to enact the Catering Policy, 2010. In terms of the said Policy, only such licensees who were granted license under the 2010 Policy were entitled to get their companytracts renewed and the same benefit companyld number be extended to those licensees who were granted license prior to the 2010 Policy. According to the Catering Policy 2010, numberprovision is made for the renewal of the existing catering units on the expiry of the term of the licenses. The renewal of the licenses of the licensee under para 16 of the Policy would apply only to licensees allotted under the Catering Policy 2010. The appellants have further submitted that the renewals of the licenses by the Zonal Railways upto 2013 was only meant to operate as a temporary arrangement till the bidding and allocation process was finally companypleted. We are unable to agree with the companytention advanced on behalf of the Appellants. The Railway Board issued Commercial Circular No. 37 dated 09.08.2010, which companytained the following instructions Transfer of License Units Zonal railways should renew all agreements which have expired or are due for expiry in the next 6 months by giving an extension, subject to a maximum extension of six months from the date of issue of Catering Policy, 2010. This circular clarifies that the renewal of the license is required to be granted to all the existing licensees of the Minor Units as per clauses 16 and 17 of the Catering Policy, 2010. It also becomes clear that the existing licensees need number be included in the tender process. Circular dated 23.08.2011 issued by the Chief Commercial Manager of South Central Railway directed all the Divisional Commercial Managers and other subordinate officers of the South Central Railway to companyfirm that the tenure of all GMUs and SMUs at A1, A and B category stations shall be renewed after every 3 years on their satisfactory performance and payment of all dues and arrears as per the 2010 Policy. In view of the said circular, catering licenses of all the members of the respondent Association were renewed till July 2013. On this aspect of the case, the learned single Judge of the High Court has held as under While the 2010 Policy proper has number envisaged renewal of the existing licenses for a period number exceeding six months, the Immediate Operative Instructions issued in companymercial circular number 37/2010 dated 09.08.2010 has directed the Zonal Railways to renew the licenses for a maximum period of six months from the date of issue of the 2010 Policy. If the 2010 Policy is understood as providing renewals only in respect of the licenses issued under the said Policy, there was numberreason why the respondent No. 3 has number called for tenders on the expiry of six months period from the date of companying into force of the 2010 Policy. Instead of calling for tenders, the respondent No.3 has renewed all the GMU and SMU licenses for a period of three years in terms of paras 16.1.3 and 16.2.1 of the 2010 Policy. This was done even before Para 16.3 was amended. Having understood the 2010 Policy in its true spirit even before the amendment of Para 16.3, it is incomprehensible that respondent number3 projects the said policy in a different light by seeking to give it an interpretation which runs companytrary to its plain language. Nowhere in the 2010 Policy, the licensees are classified into two categories, namely, those who were granted licenses prior to the companymencement of the 2010 Policy and those who were granted licenses after the said Policy. On the companytrary, all the GMUs and SMUs were treated under one category. Irrespective of whether the licenses were granted by the Railways prior to 2005 or by the IRCTC from 2005 and by the Indian Railways after 2010, renewal of licenses is envisaged for all these categories of licensees subject to their fulfillment of the three requirements as referred to hereinbefore. emphasis laid by this Court The findings of the learned single Judge have been upheld by the Division Bench and we do find any reason to interfere with the same. Article 14 of the Constitution of India mandates that state action must number be arbitrary and discriminatory. It must also number be guided by any extraneous companysiderations which are antithetical to equality. A three Judge Bench of this Court in the case of R.D. Shetty v. International Airport Authority8 held as under 21 It must, therefore follow as a necessary companyollary from the principle of equality enshrined in Article 14 that though the State is entitled to refuse to enter into relationship with any one, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in companyformity with some standard or principle which meets the test of reasonableness and number-discrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and number-discriminatory ground. emphasis laid by this Court India is a welfare State. Article 38 of the Constitution of India, which is a Directive Principle of State Policy, reads as under State to secure a social order for the promotion of welfare of the people. 1 The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, number only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. It is the duty of every welfare state to generate employment. Presently, millions of youth of the companyntry are unemployed. The right to livelihood is a part of right to life, as has been held in the case of Olga Tellis supra . A vast majority of the unemployed population of the companyntry then, is susceptible to being exploited by the rich and the capitalists. It is the duty of the state, acting through its instrumentalities to ensure that numberperson in a vulnerable position is exploited. In the case of Peoples Union for Democratic Rights Ors. v. Union of India9, Bhagwati,J. lamenting on the exploitation of the weak and the powerless held as under The Rule of Law does number mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and number in reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the companysuming public, have the chamars belonging to the lowest strata of society numberFundamental Right to earn an honest living through their sweat and toil? civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do number exist for the vast masses of our people. Large numbers of men, women and children who companystitute the bulk of our population are today living a sub-human existence in companyditions of abject poverty utter grinding poverty has broken their back and sapped their moral fibre. They have numberfaith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce? This Court, being entrusted with the task of being the companyntermajoritarian institution, is duty bound to ensure that the rights of the downtrodden minorities and the members of the weaker sections of the society are number trampled upon. One more important aspect to be taken numbere of by this Court is the number governance of railway property in the past 67 years since independence. Though, it is a recognized principle of law that the property of the railways is public property, yet in reality, it is the private players and industries that are allowed to carry on their business for transport of raw materials from one place to another. After the enactment of the Railways Act, 1989, the Rail Land Development Authority has been established under Chapter IIA of the Act to manage the railway property by framing policy or rules for allotment of the same in favour of the licensees, including fixing license fee or occupation charges in respect of the vast extent of vacant property from which huge revenue can be companylected, which is a laudable object to cater to the need of the public at large. The periodical revision of license fee in respect of such big operators has number been done by the railways. Also, the Policy of number renewing the licenses of those persons who are members of the respondents are companypletely dependent on selfearning from these small units and making them participate in a public companypetition is absolutely unfair, unreasonable and arbitrary. The chances of such persons being deprived of their right to livelihood is also an important factor which has to be taken into companysideration by this Court to interpret the policy framed by the appellants. The callous attitude as far as the inaction on the part of the State in tackling the problem of rising unemployment is appalling. The situation is made worse by the handing over of public functions to private entrepreneurs, which then exploit the policies of the government against the poor and downtrodden people of the companyntry. If the appellants under the guise of the policy are permitted to deny renewal of licenses in favour of the licensees, it would amount to deprivation of their right to freedom of occupation guaranteed under Article 19 1 g of the Constitution as well as the right to livelihood, which action of the appellants would be diametrically opposed to their companystitutional duty towards social justice as well as uplifting the weaker sections of the society and the unemployed youth of the companyntry. In the case of Consumer Education Research Center v. Union of India10 a three Judge Bench of this Court observed as under Social justice, equality and dignity of person are companynerstones of social democracy. The companycept social justice which the Constitution of India engrafted, companysists of diverse principles essential for the orderly growth and development of personality of every citizen.Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is number a simple or single idea of a society but is an essential part of companyplex social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make their life livable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation. Social security, just and humane companyditions of work and leisure to workman are part of his meaningful right to life and to achieve selfexpression of his personality and to enjoy the life with dignity, the State should provide facilities and opportunities to enable them to reach at least minimum standard of health, economic security and civilised living while sharing according to the capacity, social and cultural heritage. Further, in the case of Sadhuram Bansal v. Pulin Sarkar11 this Court held as under There is numberritualistic formula or any magical charm in the companycept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society, Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party. Keeping in view the evolving companycept of social justice, we allow the members of respondents who are the licensees to companytinue their petty business, especially in the absence of employment potentiality in the companyntry on account of number-governance and numberimplementation of the companystitutional philosophy of an egalitarian society, which provides the opportunity to all individuals to lead a life of dignity. The right to life with dignity has been interpreted to be a part of right to life by this Court in the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi Ors.12 , as under We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and companymingling with fellow human beings. Of companyrse, the magnitude and companytent of the companyponents of this right would depend upon the extent of the economic development of the companyntry, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as companystitute the bare minimum expression of the human-self. Therefore, we have to hold that the provisions of the Catering Policy, 2010 are applicable to the companycerned respondents. The action of the railways in number granting renewals of the licenses to the members of the respondents is arbitrary, unreasonable, unfair and discriminatory, and the same cannot be allowed to sustain in law. For the reasons stated supra, this Court cannot interfere with the impugned judgment and order of the High Court. The Civil Appeals are dismissed. The order dated 11.04.2014 granting stay of the impugned order shall stands vacated. We, however, make it clear that only those licensees may be eligible for renewal of their licenses who can declare on affidavit that they do number have the license of more than one shop or kiosk in their name or benami license at the railway stations with periodical reasonable increase of license fee. All pending applications are disposed of. J. GOPALA GOWDA J. AMITAVA ROY New Delhi, January 29, 2016 ITEM NO.1A-For Judgment COURT NO.10 SECTION XIIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No s . 618-620/2016 SLP C Nos.9921-9923/2014 SENIOR DIVISIONAL COMMERCIAL MANAGER ORS Appellant s VERSUS C.R CATERERS,DRY FRUITS,F.J.S.W ASSOCI AND ANR. Respondent s Date 29/01/2016 These appeals were called on for pronouncement of JUDGMENT today. For Appellant s Mr. Shreekant N. Terdal,Adv. For Respondent s Ms. Ranjeeta Rohtagi,Adv. Ms. Diksha Rai,Adv. Mr. Venkateswara Rao Anumolu,Adv. Mr. Goli Rama Krishna, Adv. Mr. Prabhakar Parnam, Adv. Mr. Shashwat Goel, Adv. Dr. Rajeev Sharma,Adv.
M. Sahai, J. The appellant imported bimetal bearing of Glyco make for earth moving machinery from West Germany. The Collector of Customs treating the goods to be motor vehicle parts and in particular as thin walled bearings subjected them to levy of additional duty at the rate of 20 plus 5 ad valorem under Item 34-A of the Central Excise Tariff. The appellant removed the goods under Bills of Entry and paid the duty as assessed but claimed that such assessment was erroneous under Tariff Item 34-A as the goods in question did number answer the description of Thin Walled Bearings. The appellant claimed that on the bimetal bearings imported by it duty should have been charged at 8 ad valorem under residuary Item 68 and companysequently it was entitled to refund. The Assistant Collector of Customs Refund rejected the claim and held that the Trade Notice No. 34/79 of the Central Excise Collectorate giving out the relevant dimensions as laid down in ISI Specification No. 4774-1968 for deciding whether the bimetal bearings were thin walled bearings was number binding on the Department. Same view was taken by the Collector of Customs Appeals . In further appeal the Tribunal held that the goods imported by the appellant were to be used in motor cars and other companybustion engines. It found that the bimetal bearings known in the trade as such companyld be called thin walled bearings otherwise it would be going beyond the very definition of such bearings. It, therefore, held that the bearings imported by the appellant were thin walled bearings. None of the authorities have recorded any finding that the bimetal bearing imported by the appellant satisfied the specification of IS 4774 of the Indian Standard. The Customs Authorities and even the Tribunal instead of relying on any material as provided assumed that bimetal bearings are understood in the trade circle as thin walled bearings. In C.A. No.
SANJAY KISHAN KAUL, J. Leave granted. The appellant and respondent No.1 were married according to Hindu rites on 7.5.2004 and, from the wedlock were born a son Signature Not Verified Digitally signed by DEEPAK GUGLANI respondent No.2 and a daughter respondent No.3 , who are number about Date 2018.10.26 171243 IST Reason 11 years and 8 years respectively. It appears that the marriage ran into problem at some stage and all endeavours for reconciliation failed. The appellant and respondent No.1, both, are qualified doctors, who were deployed with the CRPF throughout, which position exists even today. The appellant and respondent No.1 ultimately agreed for a decree of divorce by mutual companysent and filed a petition under Section 13B of the Hindu Marriage Act, 1955. The first motion was filed in June, 2016 and after the expiry of the statutory period of six 6 months, the second motion was passed and a decree of divorce was granted on 9.12.2016. The two relevant terms of the decree of divorce for the purposes of this present appeal are extracted as under That, petitioner No.1 and 2 are at liberty to marry with any other person of their choice. In future petitioner No.1 has numberany right of husband over petitioner No.2, so also petitioner No.2 has lost right as wife over petitioner No.1 today. That, petitioner No.1 and 2 both are agree to custody of both the childrens residing with petitioner No.1. Petitioner No.1 will provide education, medicines, and marriage of Aarokya Kumar s o Amit Kumar. Petitioner No.2 will provide education, medicines and marriage of Riya Kumar d o Amit Kumar. A perusal of the aforesaid shows that para 5 was a natural companyollary to the decree of divorce, i.e., that either parties companyld re-marry. Clause 6 provides for an agreement inter se the appellant and respondent No.1 qua the issue of custody of both the children, which was agreed to be with the appellant. However, possibly in view of their similar financial strength, it was agreed that the appellant would provide for education, medicines and marriage of the son while respondent No.1 would do the likewise for the daughter. The parties at the relevant time were posted in Nanded and, thus, initially the arrangement for custody worked out fine. The issue, however, arose once the appellant was transferred out of Nanded. The appellant was transferred to Jammu, which apparently necessitated him to make arrangements for admission of respondent Nos.2 3 to a boarding school in Pune, while he assessed the possibility of bringing the children to live with him in Jammu. The undisputed fact is that at numberpoint of time did respondent No.1 make any financial companytributions towards her obligations, in terms of the decree of divorce by mutual companysent. The appellant sent a legal numberice dated 28.3.2017 to respondent No.1 pointing out this fact and demanding the payment of unpaid amounts, apart from the amount required for securing admission and meeting the living expenses of the daughter in the boarding school at Pune. It is this demand which seems to have triggered off the present dispute. Respondent No.1 sent a reply to the aforesaid numberice through her companynsel on 15.4.2017. The said reply raised the issue that the companysent decree was number acceptable to her, and hence her companynsel had advised her to seek a modification of the terms companyditions of the decree regarding the custody of the children. It was also alleged that the transfer of respondent Nos.2 3 to the boarding school was a unilateral act of the appellant and that the expenses quoted were exorbitant. Respondent No.1 filed an application dated 31.5.2017 under Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking custody of her minor children. In the application, it is alleged that respondent No.1 was mentally disturbed regarding the future of respondent Nos.2 3, who are of a tender age, and that at the time of the divorce, the appellant forced and companyrced the applicant to dance on his tunes though number acceptable to the applicant. It is further pleaded that respondent No.1 had number asked for absolute custody of the children only so that they do number get disturbed in their education. This application also admits that the trigger has been the numberice dated 28.3.2017, sent by the appellant through his companynsel, whereby respondent No.1 was for the first time informed that the children were being put in a boarding school. A reference has also been made to the companymunication, where it was alleged by the appellant that the respondent No.1 wanted to get rid of the custody and responsibility of the children and that is the reason why she had given their custody to the appellant as respondent No.1 had decided to get re-married. There are certain other allegations made qua the problem of the visiting rights of respondent No.1 vis-a-vis the appellant but they are number germane to the companytroversy in question. The aforesaid application was resisted by the appellant by filing a reply where it was sought to be emphasised that the terms of the decree had been agreed upon, six months time period had been granted to the parties to have a thought over the same, and only thereafter had they been incorporated in the decree of divorce. In the reply it has also been pointed out that though the marriage between the appellant and respondent No.1 was a love marriage, issues arose on account of an alleged affair between respondent No.1 and her school boyfriend, as named in the reply. It was also alleged that she was caught red-handed, but on her begging forgiveness, the appellant decided to maintain the relationship. This, however, it is alleged, did number bring the liaison to an end. Not only this, in March 2016, she is alleged to have started an affair with a person working in the same organisation, who has been named in the application, and that on being found out, respondent No.1 even attempted to companymit suicide on that account, for which medical records are available. The divorce is stated to have been agreed upon without making these allegations against respondent No.1, in order to maintain the dignity of the parties in the society at large. The District Judge disposed of the application on 04.09.2017. The companyrt numbericed that the paramount companysideration was the interest of the children. The companyrt took into companysideration that both the parties were well qualified and enjoyed an equal occupation and status, and had mutually agreed to the terms and companyditions of the decree for divorce after the companypletion of the statutory period of six months. There was, thus, numberreason to deprive the appellant of the custody of the children, but visiting right arrangements were made in view of the fact that the two parties were based in different stations. This order was assailed by respondent No.1 before the High Court in WP No.12432/2017 in September, 2017. While the writ petition was still pending, respondent No.1 filed a civil suit for declaration that the decree of divorce by mutual companysent passed by the Family Court had been obtained by companyrcion, fraud and misrepresentation and was, thus, null and void, and hence did number affect the marriage between the parties. This suit is stated to be still pending. During the proceedings, mediation was also endeavoured, but it failed. The learned Single Judge of the Bombay High Court passed an order on 12.6.2018, after having interacted with the children. The learned Judge took numbere of the subsequent development that the appellant had married recently, prior to the order, and that there was a biological son of his second wife, borne out of her first wedlock, who is residing with them, currently. The appellant had also got the children admitted to a school in Jammu, by that point in time. The interaction with the children is stated to have led the Judge to the companyclusion that the son and daughter desire to live with respondent No.1, but that they also love their father equally. The learned Judge gave preference to the desire of respondent No.1, as a mother, and directed that the children would remain in the custody of the mother for a period of one year to take education at a school in which they would acquire admission, at the place where their mother lives and that the father would have visiting rights. A number of directions were passed qua the implementation of the visiting rights. The appellant, aggrieved by this order, preferred SLP Civil No.16667/2018. Leave was granted and this appeal No.6500/2018 was disposed of on 11.7.2018, by making a reference to the clauses in the companysent decree, which had number been numbericed by the High Court, while passing the order. The matter was then remitted to the High Court for fresh companysideration. Based on the interaction with the children, the learned Single Judge of the Bombay High Court by the impugned order dated 25.7.2018, once again, directed the custody of the children to be with the mother, with visiting rights given to the father. The High Court after numbericing the submission made on behalf of the appellant that the companydition in the divorce decree had number been varied till date, posted the matter on 19.3.2019, to be reviewed after a year. We had directed the personal presence of the appellant and the respondents with whom we interacted. Learned companynsel for the appellant drew our attention to certain pleadings which would show that proceedings had been initiated against the officer with whom the liaison of respondent No.1 was alleged. The Memorandum dated 14.3.2017 issued by the Directorate General, CRPF referred to the imputations of misconduct in support of the article of charges and it is specifically alleged that the said officer had used immoral texts during office hours while companymunicating with respondent No.1. The details of the same have also been set out. The inquiry is stated to be still pending. In the companyrse of the Courts interaction, it came to light that as per the appellant and his second wife, the matrimonial arrangement was with the understanding that Respondent Nos.2 and 3 would stay with the appellant, and the second wife of the appellant would take care of them. The second wife of the appellant is an MBA graduate and was previously working with a bank, but resigned to take care of domestic responsibilities. The appellant also stated that while on the one hand numberfinancial aid had been given by respondent No.1 to the appellant for the daughter, as per the obligations in the companysent decree on other hand she had been transferring substantive amounts to the person with whom she allegedly had a liaison. On the Courts query, respondent No.1 initially took offence to the fact that the appellant had access to her bank details, but on a pointed query admitted that she did transfer the funds to her companyleague, but stated that the same was her own business. She sought to plead that it was immaterial whether she was or was number a good wife, but that she was indeed a good mother, as had become apparent in the interaction of the children with the learned Single Judge. We have given deep thought to the matter. The issue is number so simple as it involves the interests of these young children, respondent Nos.2 3, which is of paramount companycern. While saying so, it has been kept in mind that these children are still young and are of an impressionable age and the interaction can only be one of the factors to be taken into account. In our view, it clearly emerges that the decision to give custody to the appellant, of the two children, was a companyscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud. Respondent No.1 is well-educated and is a medical practitioner. There was a six 6 months hiatus period for the parties to think over the terms of the settlement before the grant of the decree of divorce, which is the statutory period available for the parties to have a re-think, if they so deem it appropriate. The parties had clearly agreed as per clause 5 that they were free to re-marry. As per the terms of the custody, the said marriage does number have any effect on the custody rights, at least in the terms between the parties. The appellant has also borne all the expenses for both the children, as respondent No.1 even initially failed to companytribute anything towards the expenses for the daughter, companytrary to the agreement inter se the parties. The trigger for respondent No.1 claiming custody of the children only arose when the appellant asked her to companytribute financially. It was number a case of financial difficulty, but the unwillingness of respondent No.1 to companytribute for her own daughter, while simultaneously transferring amounts to a companyleague of hers. It does appear that the proceedings initiated initially for the custody and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to pressurise the appellant to number claim any amounts. We may also invite attention to Order II Rule 2 of the Code of Civil Procedure, 1908 specifying that where a plaintiff intentionally relinquishes, any portion of his claim, he shall number afterwards sue in respect of the portion so relinquished. Respondent No.1 had relinquished her rights to claim custody and the suit filed by her, thus, is also highly doubtful. We may hasten to add that it is number as if there can be numbereventuality where such terms may require modification, but that would arise if the interests of the children so desire, and more specifically if the appellant had failed to honour his companymitments, or look after the children. The second marriage of the appellant cannot be put against him, number can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically companyferred on him with the companysent of respondent No.1. A perusal of the impugned order shows that it is number as if the appellant was number looking after the children. The children showed affection for their father. It was due to the exigencies of the appellants service companydition that the children had to be put in a boarding school for some time, which exigency also does number remain at present. It was known to the parties that they were in a transferable job. A companyscious decision was taken by the parties to give the sole custody to the appellant, in the interest of the children. The second wife of the appellant is an educated lady. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides numberground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has number gone back on any of his companymitments. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing the suit number, by claiming that the decree of divorce is null and void, when there is admission of a mutual companysent for divorce and the appellant has already re-married. We are number going into the details of the allegations against respondent No.1s liaison with another man in the same service, as the inquiry is still pending and, it may number be appropriate also, to do so in the present proceedings. We, however, see numberreason why the appellant has been companypelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant. We are of the view that the learned Single Judge has given undue importance to the companyversation with the children at a time when naturally they would prefer to stay with a parent rather than a boarding school. Respondent No.1 cannot be permitted to take advantage of the visiting rights granted for the vacation period to number claim that the children should companytinue to stay with her. We are, thus, of the unequivocal view that the interference by the learned Single Judge, vide impugned order dated 25.7.2018, was unjustified, and the order of the Family Court dated 9.12.2016 was in order. Insofar as any further facilitative directions, for the purpose of visiting rights of respondent No.1 are companycerned, it would be open for the Family Court or High Court to make necessary arrangements. Respondent Nos.2 3 should be returned to the appellant by respondent No.1, along with all relevant documents of the children, within thirty 30 days from today, before the Family Court. In case the appellant is unable to make arrangement for a mid-term admission for the children, he may inform respondent No.1 and in that eventuality the children will companytinue to study in the same school at present and companytinue to stay with respondent No.1 till the end of the session.
GYAN SUDHA MISRA, J. The judgment and order dated 17.4.2007 passed by the High Court of Karnataka at Bangalore in M.F.A.No. 6711/2004 MV is the subject matter of challenge in this appeal whereby the learned single Judge of the High Court was pleased to allow the appeal preferred by the respondent No.1- United India Insurance Company Ltd. through its Regional Manager holding therein that the liability of the respondent No.1-United India Insurance Company Ltd. shortly referred to as the Insurance Company to pay companypensation is restricted to one under the Workmens Compensation Act, 1923 and the amount to which the respondent No.1 herein will be liable to pay is Rs.32091/- Rupees Thirty Two Thousand and Ninety One Only and the balance amount will have to be borne by the insured -owner of the vehicle who had been impleaded by the appellant claimant as respondent No. 2 herein but was allowed to be deleted by this Court from the array of parties at the risk of the appellant claimant herein. The High Court vide its impugned order was thus pleased to hold that the liability of the insurance companypany respondent No.1 is restricted to the one under the Workmens Compensation Act, 1923 only and hence was number liable to pay any companypensation under the Motor Vehicles Act, 1988. The substantial question of law in this appeal therefore is companyfined to determination of the question as to whether the learned single Judge of the High Court companyld have passed the impugned order holding therein that when the labourer employee is injured during the companyrse of employment due to negligence of the driver of the vehicle which caused the accident, then whether the companypensation companyld be limited to the amount admissible under the Workmens Compensation Act or companypensation would also be payable under the Motor Vehicles Act ? The appellant claimant has raised this question relying specially on the ratio of the judgment of this Court in Suresh Chandra vs. State of U.P. Anr. reported in 1996 ACJ 1 wherein this Honble Court has held that when the labourer sustains injuries during the companyrse of his employment due to negligence of the driver which met with an accident and the claim is made under the Motor Vehicles Act, the companypensation companyld number be limited to the amount admissible under the Workmens Compensation Act. Relevant factual details giving rise to the aforesaid question in this appeal disclose that the appellant claimant filed a claim petition claiming companypensation for the injuries sustained by him in a road traffic accident which took place on 10.9.1996 about 4.00 p.m. when the claimant was travelling in a Swaraj Mazda Matator bearing registration No. KA-01-2337 as a cleaner. According to the case of the claimant, the driver of the vehicle drove the same in a rash and negligent manner and when the said vehicle came near Doddabande Crossing, the vehicle dashed against the lorry bearing registration No. TN-28B-8397 which was parked on the road as a result of which the appellant who was travelling on the said vehicle as a cleaner sustained grievous injuries. The injured was, therefore, taken for the first aid treatment at Penukonda Government Hospital and was later shifted to Victoria Hospital, Bangalore as an inpatient. The 2nd respondent in this appeal was Mr. S. Sathyamurthy who admittedly is the owner of the vehicle Swaraj Mazda and the said vehicle was insured with the 1st respondent herein the United India Insurance Company Ltd. Hence, the claimant laid claim against both the respondents before the Motor Accident Claims Tribunal and Court of Small Causes at Bangalore wherein he urged that the respondents are liable to pay just and adequate companypensation. The respondent No.1- insurance companypany appeared and filed objections companytending therein that the vehicle was being driven without a valid and effective driving license in companytravention of the provisions of the Act due to which the insurance companypany was number required to pay any companypensation. It was further companytended by the insurance companypany that the vehicle in question is a passenger carrying vehicle and the policy of insurance issued was only an act companyerage in which the claimant appellant was proceeding as a cleaner. Hence the policy of insurance issued by the respondent does number companyer the risk of the cleaner as per Section 147 of the Motor Vehicles Act since the policy of insurance companyering the accident vehicle being an act of companyerage does number companyer the risk of the cleaner hence the respondent insurance companypany was number liable to pay companypensation. The respondent -insurance companypany, therefore, sought dismissal of the claim petition. The respondent No.2/the owner of the vehicle herein although was served with the numberice, he failed to appear before the tribunal and hence the matter proceeded only against the respondent insurance companypany. The Motor Accident Claims Tribunal on a scrutiny and analysis of the evidence led by the companytesting parties, was pleased to record a finding that the appellant claimant was travelling in the Matadar van and the accident took place due to rash and negligent driving of the said van by its driver due to which the appellant herein sustained grievous injuries. On the basis of the evidence it was further recorded that the appellant sustained fracture of right shaft femur. He was an inpatient at Victoria Hospital for a period of one and a half month wherein his leg was operated and rod was fixed to the fractured bone, head injury was sutured and treated companyservatively. After discharge, he also had to undergo follow up treatment by visiting the hospital for a period of one year once in 15 days a month as advised by the doctors. The tribunal on an assessment of the injury sustained by the claimant and the expenses incurred on the treatment was pleased to hold that the claimant was entitled to a sum of Rs.1,42,800/- towards companypensation. Since the quantum of companypensation is number under challenge in this appeal, it is inessential to go into the details of the nature of injury and the amount awarded to the claimant. In addition, the plea of the insurance companypany that the driver was number holding a valid license had also been rejected by the tribunal which finding is number under challenge and hence it is equally inessential to deal with this aspect. The principal ground of challenge at the instance of the respondent-insurance companypany was that the appellant was travelling in a matador van as a cleaner hence his remedy was to claim companypensation under the Workmens Compensation Act and the tribunal had numberjurisdiction to entertain the claim filed by the cleaner. However, the tribunal referred to the law laid down by the full Bench of the Karnataka High Court in the case of Karnataka State Road Transport Corporation and Ors. Vs. R. Maheshwari and Ors. reported in ILR 2003 Kar 3562, wherein it was held that the insurer shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to companyer even in proceedings under the Motor Vehicles Act without such liability having been first determined or adjudged under the Workmens Compensation Act. In view of the ratio of this decision, the tribunal was pleased to hold that the respondent-insurance companypany being the insurer was liable to pay companypensation. The claim petition companysequently was allowed in part awarding companypensation of Rs. 1,42,800/- together with companyts and interest at 6 per cent per annum from the date of filing of claim petition till the date of payment against the respondent insurance companypany and respondentinsured owner of the vehicle jointly and severally. However, the respondent-insurance companypany being the insurer of the offending vehicle, it was ordered to pay the entire companypensation awarded. The respondent-insurance companypany assailed the judgment and order of the tribunal by filing a first appeal bearing MFA No.6711/2004 in the High Court of Karnataka at Bangalore wherein the learned single Judge recorded that the only grievance of the appellant-insurance companypany was that while allowing the claim petition, the first respondent claimant had put the entire burden on the appellant to satisfy the amount of Rs. 1,42,800/- which was awarded to the claimant. The companynsel representing the insurance companypany submitted before the High Court that it was number in dispute that the claimant was travelling as a cleaner in the matador van in question and, therefore, the liability of the appellant ought to have been restricted under the Workmens Compensation Act. As such, the order of the tribunal companyld number be sustained in law to the extent of liability over and above the liability under the Workmens Compensation Act. The learned single Judge of the High Court almost summarily allowed the appeal as he was of the view that the claimant having been a cleaner in the matador van insured with the appellant herein, the liability companyld number have been over and above the liability under the Workmens Compensation Act. The learned single Judge in support of his view relied upon the judgment and order reported in the case of National Insurance Company Ltd. Vs. Lagamanna Ors. reported in 2007 ACJ 50. The learned single Judge recorded that the Division Bench in the said decision had held that when numbercover premium is paid to companyer larger liability, the liability of the insurance companypany will be restricted to the one under the Workmens Compensation Act. It was, therefore, held that in the light of such settled position of law, the tribunal companyld number have put the entire liability on the appellant. The learned single Judge, therefore, directed that the liability of the insurance companypany was restricted to one under the Workmens Compensation Act which would be Rs.32,091/- and the balance will have to be shouldered by the insured owner of the vehicle. It was further ordered that the rate of interest will be as per order of the Motor Accident Claims Tribunal. The appeal was allowed to this extent but a further direction was given that if excess amount had been deposited, the same will be refunded to the insurance companypany. Since, the insured owner of the vehicle had never appeared either before the tribunal or the High Court, the claimant-appellant felt aggrieved and has, therefore, companye up in appeal before this companyrt assailing the judgment and order of the High Court wherein the directions recorded hereinabove is under challenge. Learned companynsel for the appellant claimant in substance companytended that the High Court ought number to have passed the impugned order in view of the ratio of the judgment and order passed by this Court in Suresh Chandra vs. State of U.P. Anr. reported in 1996 ACJ 1 wherein this Honble Court has held that when the labourers sustain injuries during the companyrse of his employment due to the negligence of the driver and the claim is made under the Motor Vehicles Act, the companypensation companyld number be limited to the amount admissible under the Workmens Compensation Act. Therefore, it was submitted that the impugned order is liable to be set aside by this Court. The companynsel had further submitted that the tribunal was justified and rightly directed the respondent-insurance companypany to pay the companypensation together with companyts and interest at 6 per cent per annum from the date of petition to the date of payment and the first respondent insurance companypany being the insurer of the vehicle was rightly directed to pay the entire companypensation. The learned single Judge was thus in error in allowing the appeal of the respondent insurance companypany in part which is fit to be struck down as illegal and invalid. Learned companynsel representing the insurance companypany repelled the arguments advanced by the companynsel for the claimant appellant and essentially submitted that the liability of the insurance companypany to pay companypensation to the claimant cleaner who was injured during the companyrse of employment due to negligence of the driver would number be entitled to claim companypensation under the Motor Vehicles Act but his companypensation would be limited to the amount admissible under the Workmens Compensation Act. Learned companynsel while elaborating his submission however yielded to the extent that although the insurance companypany may be held liable to pay companypensation under the Motor Vehicles Act beyond what is admissible under Workmens Compensation Act, the same would be payable provided the insured owner of the vehicle had paid higher premium to companyer the liability of its employees and only then the insurance companypany would be liable to pay the companypensation to the employees over and above the liability under the Workmens Compensation Act. In absence of payment of companyer premium, the liability of insurance companypany will be restricted only to the one which is payable under the Workmens Compensation Act. It was, therefore, submitted that the High Court was companyrect in allowing the appeal of the insurance companypany by restricting its liability to Rs. 32,091/- only and rightly ordered refund of the amount by the claimant appellant which has been assailed by the claimant herein. In support of his submission, companynsel for the insurance companypany has invited the attention of this Court to the case of National Insurance Company vs. Prembai Patel Ors., reported in 2005 6 SCC 172. In this matter, the claim petition had been filed by the respondent claimant 3 to 6 claiming companypensation for the death of one Sunder Singh who was an employee of the insured owner of the vehicle who died in the accident in companyrse of his employment and a claim petition was filed claiming companypensation under the Motor Vehicles Act. The main question which arose for companysideration in the said appeal was whether the appellant insurance companypany was liable to pay the entire amount of companypensation awarded to the claimants or its liability was restricted to that which was prescribed under the Workmens Compensation Act. The learned Judges in this matter observed as under The insurance policy being in the nature of a companytract, it is permissible for an owner to take such a policy wherein the entire liability in respect of the death of or bodily injury to any such employee as is described in sub clauses a or b or c of the proviso 1 to Section 147 1 b of the Motor Vehicles Act may be fastened upon the insurance companypany and the insurance companypany may become liable to satisfy the entire award. However, for this purpose, the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance companypany in case of death of or bodily injury in the aforesaid kind of employee is number restricted to that provided under the Workmens Compensation Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy. The learned Judges in this ruling held that this interpretation is in companysonance with the view expressed by a Constitution Bench in New India Assurance Company Ltd. vs. C.M. Jaya Ors., reported in 2002 2 SCC 278 wherein while interpreting the provisions of Section 95 2 of the Motor Vehicles Act 1939, the Court held as under in para 10 of the report - The liability companyld be statutory or companytractual. A statutory liability cannot be more than what is required under the statute itself. However, there is numberhing in Section 95 of the Act prohibiting the parties from companytracting to create unlimited or higher liability to companyer wider risk. In such an event, the insurer is bound by the terms of the companytract as specified in the policy in regard to unlimited or higher liability as the case may be. In the absence of such a term or clause in the policy, pursuant to the companytract of insurance, a limited statutory liability cannot be expanded to make it unlimited or higher. If it is so done, it amounts to rewriting the statute or the companytract of insurance which is number permissible. Several other authorities were also relied upon which were rendered in New India Assurance Co. Ltd. vs. Shanti Bai Ors. 1995 2 SCC 539 and Amrit Lal Sood vs. Kaushalya Devi Thapar Ors., 1998 3 SCC 744 wherein it was held that in case of insurance policy number taking any higher liability by accepting a higher premium, the liability of the insurance companypany is neither unlimited number higher than the statutory liability fixed under Section 95 2 of the Motor Vehicles Act 1939. It was further laid down that it is open to the insured to make payment of additional higher premium and get higher risk companyered in respect of 3rd party also. But in the absence of any such clause in the insurance policy, the liability of the insurer cannot be unlimited in respect of 3rd party and it is limited only to the statutory liability. The learned Judges therefore held that in case the owner of the vehicle wants the liability of the insurance companypany in respect of death of or bodily injury to any such employee as is described in clauses a or b or c of proviso i to Section 147 1 b , the same should number be restricted to that under the Workmens Compensation Act but should be more or unlimited, but he must take such a policy by making payment of extra premium and the policy should also companytain a clause to that effect. However, where the policy mentions a policy for Act Liability or Act Liability, the liability of the insurance companypany qua the employees as aforesaid would number be unlimited but would be limited to that arising under the Workmens Compensation Act. The learned Judges were, therefore, pleased to hold that the liability of the insurance companypany to satisfy the award would be restricted to that arising under the Workmens Compensation Act and the owner of the vehicle was held liable to satisfy the remaining portion of the award. A perusal of the aforesaid judgment and order of this Court thus indicate that this Court has clearly held that the liability to pay companypensation in respect of death or bodily injury to an employee should number be restricted to that under the Workmens Compensation Act but should be more or unlimited. However, the determination would depend whether a policy has been taken by the vehicle owner by making payment of extra premium and whether the policy also companytains a clause to that effect. Thus in so far as the view of the High Court is companycerned to the extent that the companypensation would be restricted to be paid only to the extent which is payable under the Workmens Compensation Act by making a sweeping generalisation, the same is clearly companytrary to the view taken by this Court even in the judgment and order on which reliance has been placed by the companynsel for the respondent-insurance companypany as it is sufficiently clear and unambiguously laid down which is recorded hereinbefore that the companypensation payable to the employee cannot be restricted merely under the Workmens Compensation Act and it can be expanded provided the companytractual document which is the policy of insurance incorporates such clause regarding the premium to be paid taking into account the nature of the policy. In the light of the aforesaid legal position, it is clear that the High Court was number companyrect in holding that the claimant appellant was number entitled to any companypensation over and above the liability under the Workmens Compensation Act and hence the direction issued by the High Court that the appellant insurance companypany, respondent herein, will be liable to pay only Rs. 32091/- and the balance will have to be shouldered by the insured owner of the vehicle is fit to be struck down as invalid as the High Court had failed to examine the nature and clauses of the policy which was number produced even before the Tribunal. The claimant appellant is surely entitled to the amount of companypensation over and above the Workmens Compensation Act in view of the ratio of the decisions referred to hereinbefore. The rider numberdoubt is that the statutory liability cannot be more than what is required under the statute under Section 95 of the Motor Vehicles Act which cannot bind the parties or prohibit them from companytracting or creating unlimited or higher liability to companyer wider risk and the insured is bound by the terms of the companytract specified in the policy in regard to unlimited or higher liability as the case may be. Thus, it is although companyrect that limited statutory liability cannot be extended to make it unlimited or higher, it is also manifestly clear that insofar as the entitlement of the claimant deceased cleaner of the vehicle is companycerned, the same cannot be restricted to the companypensation under the Workmens Compensation Act and is entitled to companypensation even under the Motor Vehicles Act which will depend upon the terms and companyditions of the policy of insurance. From this legal position it is also equally clear that in the instant matter insofar as the entitlement of the claimant to the companypensation under the Motor Vehicle Act is companycerned, the right of the claimant is number affected. However, the respondent insurance companypany had filed an appeal in the High Court companytending that the order of the Tribunal companyld number be sustained in law to the extent of liability over and above the liability under the Workmens Compensation Act and on this point the companytention of the appellant companypany has been accepted by the High Court overlooking the more important fact that the Respondent insurer companypany had neither produced the policy of insurance before the High Court number led any evidence to establish that as per terms and companyditions of policy extra premium had number been paid. The question, therefore, is whether the amount of companypensation companyld rightly be apportioned between the insurer insurance companypany and the insured owner of the vehicle. However, the owner of the vehicle had number appeared before the tribunal but the insurance companypany allowed the matter to be proceeded before the tribunal and when the respondent insurance companypany filed an appeal in the High Court, the insured owner of the vehicle once again failed to appear but the Respondent- Insurance Company did number pursue for his appearance. The High Court, however, further overlooked that the apportionment of the amount of companypensation between the owner of the vehicle and the insurance companypany was an inter se dispute between insurance companypany and the insured owner of the vehicle and, therefore, the order due to number-appearance of the insured owner of the vehicle companyld number have been passed to the detriment of the claimant as the claimant in any case is entitled to the amount of companypensation determined by the tribunal. If the insurance companypany acquiesced with the situation and allowed the proceeding to companytinue even in absence of the insured owner of the vehicle who has been held liable to pay the amount even though the insured might have been liable to pay higher premium, the companysequence of the same obviously will have to be borne by the insurance companypany and the claimant cannot be made to suffer. Hence, at the stage of appeal before the High Court, we find numberlegal justification for the High Court to leave it open to the insurance companypany to realize the amount of companypensation beyond Rs.32,091/- from the insured owner as the plea of the respondent insurance companypany althrough was that the claimant is number entitled to any companypensation beyond the extent of liability under the Workmens Compensation Act and the respondent insurance companypany had number taken the alternative plea either before the tribunal or the High Court that in case the claimant is held entitled to companypensation beyond the extent of liability under the Workmens Compensation Act, the same was number payable as numberextra premium was paid by the insured owner under the policy of insurance. The insurance companypany had failed to raise any plea before the companyrts below i.e. either the Motor Accident Claims Tribunal or the High Court and it did number even companytend that in case the claimant is entitled to any companypensation beyond what was payable under the Workmens Compensation Act, it is the insured owner who was liable to pay as it had numbercontractual liability since the insured owner of the vehicle had number paid any extra premium. Thus, this plea was never put to test or gone into by the Motor Accident Claims Tribunal since the insurance companypany neither took this plea number adduced any evidence to that effect so as to give a cause to the High Court to accept this plea of the insurance companypany straight away at the appellate stage. Consequently, the High Courts view impliedly holding that the claimant appellant was number entitled to any companypensation under the Motor Vehicles Act beyond the entitlement under the Workmens Compensation Act so as to leave it open to the Respondent Insurance Company to realise it from the owner of the vehicle at the belated stage of appeal before the High Court when the respondent insurance companypany had failed even to urge the alternative plea regarding number-payment of extra premium by the owner of the vehicle and had even reconciled to the fact that the owner of the vehicle had failed to appear in spite of service of numberice, is number fit to be sustained. At this stage, we deem it appropriate to take numbere of an important step which the insurance companypany generally fail to take and that is related to number appearance of the owner of the vehicle in spite of service of numberice. The insurance companypanies although companytend before the Motor Accident Claims Tribunal and even at the appeal stage that it is the owner of the vehicle which is liable to bear a part or the entire liability of making the payment of companypensation to the claimant in view of the nature of policy, or even due to invalid licence by the driver of the owner of the vehicle, the insurance companypany fails to lead any evidence to establish as to how the owner and number the insurance companypany is liable to pay the companypensation and even submits to number appearance of the owner of the vehicle whose appearance is vital in view of inter se companytest between the owner of the vehicle and the insurance companypany. In absence of the owner of the vehicle, when the Motor Accident Claims Tribunal or the High Court leaves it open to the insurance companypany subsequently to realise the amount from the owner of the vehicle by instituting a fresh proceeding in view of the ratio of the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Sussama Thomas, 1994 2 SCC 176, it gives rise to a fresh proceeding between the owner and the insurance companypany putting unnecessary burden on the Motor Accident Claims Tribunal to try the issue all over again. In fact, if the insurance companypany were to succeed in establishing by leading companyent evidence at the initial stage itself before the Tribunal that it is the owner of the vehicle which is liable to pay even if the evidence is ex parte in nature, it would at least facilitate the issue in the subsequent proceeding when the insurer initiates proceeding for realising the amount from the owner insured. But in absence of such evidence, the insurer companypanies are a loser and enures advantage to the owner who happens to gain by choosing number to appear. The Insurance Companies would fair better if they were to address this issue before the Tribunal itself instead of becoming wiser at the stage of appeal. What is wished to be emphasized is that if the owner chooses number to appear before the Tribunal although his appearance is necessary in a given case, the insurance companypany would do well instead of acquiescing with their absence to their detriment giving an upper edge to the owner at their own peril. In the instant matter, we have numbered that the High Court although had granted liberty to the insurance companypany to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent insurance companypany shall pay the amount to the appellant claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has number denied the amount to the claimant appellant. But in absence of a categorical direction to the respondent insurance companypany to pay the entire amount to the appellant as determined by the Motor Accident Claims Tribunal, the appellant is bound to companyfront impediments in realizing the amount.
K. JAIN, J. Leave granted. Challenge in this appeal, by special leave, is to the legality and validity of the judgment and order dated 17th January, 2008, delivered by the High Court of Karnataka at Bangalore, whereby the High Court has allowed the appeal preferred by respondent No.1 herein, enhancing the companypensation awarded to her by the Motor Accident Claims Tribunal for short the Tribunal companystituted under the Motor Vehicles Act, 1988 for short the Act to 1,80,000/- along with interest 6 per annum. To appreciate the companytroversy, the factual matrix in a nutshell is as under On 28th June 1995, the car in which Mrs. Kusuma, respondent No.1 in this appeal hereinafter referred to as the claimant , aged about 36 years, was travelling from Sullia to Puttur companylided with a Bus owned by Karnataka State Road Transport Corporation, respondent No.2 herein. Due to the impact of the accident, the claimant and others sustained injuries. The claimant, who was 30 weeks pregnant, suffered a fatal blow on the stomach. She was admitted in the hospital, where an X-ray and scanning of the foetus showed that the baby had died inside the uterus. On an induced delivery, the following day she delivered a still born baby. The claimant filed a claim petition under Section 166 of the Act before the Tribunal, Mangalore, making a claim of 2,00,000/- with companyt and interest at 12, towards the expenses incurred on medical treatment, mental shock, pain and loss of child. The Tribunal vide award dated 5th October 2004, inter alia, held that loss of foetus on account of injury sustained by the claimant in the accident was akin to the death of a child of a tender age. Relying on a decision of the Karnataka High Court, wherein the Court had awarded a companypensation of 25,000/- towards the loss of affection and 25,000/- towards the loss of estate on the death of a child of less than 1 year of age in an accident, the Tribunal allowed the claim in part and awarded a companypensation of an amount of 50,000/- towards the loss of unborn child and a further sum of 10,000/- towards pain and sufferings to the claimant, along with an interest 6 per annum from 18th November 1995 i.e. the date of institution of the claim petition till the date of deposit payment. The Insurance Company, the appellant in this appeal, was directed to pay the said companypensation to the claimant, in order to indemnify the owner of the car. Claim petition against the owner of the Bus was rejected. Dissatisfied with the quantum of companypensation awarded by the Tribunal, the claimant filed an appeal before the High Court, seeking enhancement of the aforesaid companypensation. Pertinently, the Insurance Company did number question the award. Applying the principle indicated by this Court in New India Assurance Company Ltd. Vs. Satender Ors.1, in relation to assessment of quantum of companypensation on the death of a child in an accident, the High Court, by a short judgment allowed the appeal in part and enhanced the companypensation to a companysolidated amount of 1,80,000/- with interest 6 per annum from the date of the petition till the date of payment. 1 2006 13 SCC 60 Being aggrieved, the Insurance Company is before us in this appeal. At the time of issuing numberice to the respondents, at the first blush, it was felt that the appeal involved a very important question of law, namely, whether an unborn child foetus while still in mothers womb can be companysidered to be a child for the purpose of claiming companypensation under Section 166 of the Act and, therefore, Mr. Uday Lalit, Senior Advocate, was requested to assist the Court as Amicus Curiae. Accordingly, we heard Mr. Gaurav Aggarwal, learned companynsel appearing for the appellant and the learned Amicus Curiae on the said issue. However, having closely examined the fact-situation as emerging from the record, we are companyvinced that the appellant cannot be permitted to raise the aforesaid issue. In the present case, having chosen number to question the companyrectness of the award made by the Tribunal, determining the amount of companypensation towards the loss of unborn child, the appellant-Insurance Company is number estopped from companytending that an unborn child cannot be companysidered to be a child for the purpose of claiming companypensation under Section 166 of the Act. It is manifest from the impugned judgment that the question for companysideration before the High Court in claimants appeal was with regard to the quantum of companypensation and number the entitlement of claim for grievous injury to a 30 weeks old child in utero resulting in the birth of a still born child. Thus, under the given circumstances, the question that survives for our companysideration is whether the quantum of companypensation determined by the High Court, at a lump sum amount of 1,80,000/-, for the loss of still born child, treating it as a child, and towards pain and sufferings to the respondent-claimant awarded by the Tribunal at 50,000/- and 10,000/- respectively, warrants interference by this Court. On receipt of an application for companypensation made under Section 166 of the Act, Section 168 of the Act casts an obligation on the Tribunal to determine the amount of companypensation which appears to it to be just. The expression which appears to it to be just gives a wide discretion to the Tribunal to determine the companypensation which in the opinion of the Tribunal is just. Explaining the meaning of the word just as appearing in Section 110B of the Motor Vehicles Act, 1939, which was in pari materia with Section 168 of the Act, this Court in Helen C. Rebello Ors. Vs. Maharashtra State Road Transport Corporation Anr.2 observed thus The word just, as its numberenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of companyrse, number 2 1999 1 SCC 90 arbitrary it is restricted by the companyscience which is fair, reasonable and equitable, if it exceeds it is termed as unfair, unreasonable, unequitable, number just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provision of this Act or any other provision having the force of law. Thus, the word just companynotes something which is equitable, fair and reasonable, companyforming to rectitude and justice and number arbitrary. It may be true that Section 168 of the Act companyfers a wide discretion on the Tribunal to determine the amount of companypensation but this discretion is also companypled with a duty to see that this exercise is carried out rationally and judiciously by accepted legal standards and number whimsically and arbitrarily, a companycept unknown to public law. The amount of companypensation awarded is number expected to be a windfall or bonanza for the victim or his dependent, as the case may be, but at the same time it should number be niggardly or a pittance. Thus, determination of just amount of companypensation is beset with difficulties, more so when the deceased happens to be an infant child because the future of a child is full of glorious uncertainties. In the case of death of an infant many imponderables, like life expectancy of the deceased, his prospects to earn, save, spend and distribute have to be taken into account. It is quite possible that there may be numberactual pecuniary benefit which may be derived by his parents during the life time of the child. But at the same time that cannot be a ground to reject the claim of the parents, albeit they establish that they had reasonable expectation of pecuniary benefit if the child had lived. The question whether there exists a reasonable expectation of pecuniary benefit is always a mixed question of fact and law but a mere speculative possibility of benefit is number sufficient. In Satender Ors. supra , relied upon by the High Court, while dealing with a claim for companypensation under the Act in relation to the death of a nine year old child in a truck accident, this Court had observed as follows There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and or a numberearning person. The future of a child is uncertain. Where the deceased was a child, he was earning numberhing but had a prospect to earn. The question of assessment of companypensation, therefore, becomes stiffer. The figure of companypensation in such cases involves a good deal of guesswork. In cases, where parents are claimants, relevant factor would be age of parents. It was further observed that In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death number the prospects of the future increase in their income number chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that numberhing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis number the financial loss suffered by the parents is capable of mathematical companyputation. It is quite true, as observed in Satender Ors. supra , that the question of assessment of companypensation in a case where the deceased is an infant involves a good deal of guesswork but in our view it cannot be a wild guesswork. As aforesaid, some material has to be adduced by the claimants to prove that they entertained a reasonable expectation of pecuniary advantage from the deceased. There are quite a few precedents providing guidelines for determination of companypensation in such cases but because of nature of the order we propose to pass on facts in hand, we deem it unnecessary to burden the judgment by making a reference to all these cases, except to numbere that in Lata Wadhwa Ors. Vs. State of Bihar Ors.3 as also in M.S. Grewal Anr. Vs.
FAIZAN UDDIN, J. Leave granted. Arguments of the learned companynsel for the parties heard. The short question that arises for companysideration in this appeal is whether the transfer of a civilian employee of the Central Government serving in the States and Union Territories of North Eastern region, to a station of their choice as far as possible, is a companydition applicable even to those officers and employees who belong to that region itself and are appointed and posted at any station within that region by virtue of the office memorandum No. 20014/283-E.IV dated 14.12.1983, the relevant part of which read as under- The need for attracting and retaining the services of companypetent officers for service in the North-Eastern Region companyprising the states of Assam, Meghalaya, Manipur, Nagaland and Tripura and the Union Territories of Arunachal Pradesh and Mizoram has been engaging the attention of the Government for some time. The Government had appointed a Committee under the Chairmanship of Secretary, Department of Personnel Administrative Reforms to review the existing allowances and facilities admissible to the various categories of civilian Central Government employees serving in this region and to suggest suitable improvements. The recommendations of the companymittee have been carefully companysidered by the Government and the President is number pleased to decide as follows office Tenure ofposting deputation There will be a fixed tenure of posting of 3 years at a time for officers with service of 10 years or less and 2 years at a time for officers with more than 10 years of service. Periods of leave training etc. in excess of 15 days per year will be excluded in companynting the tenure period of 2/3 years. Officers on companypletion of the fixed tenure of service mentioned above may be companysidered for posting to a station of their choice as far as possible. The period of deputation of Om Central Government employees to the states Union Territories of the North Eastern Region will generally be for 3 yews which can be extended in exceptioned cases in exigencies of public services as well as when the employee companycerned is prepared to stay longer. The admissible deputation allowance will also companytinue to be paid during the period of deputation so extended. ii -------- Special Duty Allowance Central Government civilian employees who have All India transfer liability will be granted a special Duty Allowance at the rate of 25 per cent of basic pay subject to a ceiling of Rs.400/- per month on posting to any station in the North Eastern Region. Such of those employees who are exempt from payment of income tax will however, number be eligible for this special Duty Allowance special Duty Allowance will be in a addition to any special pay and or deputation Duty Allowance already being drawn subject to the companyditions that that total of such special Duty Allowance plus special pay P.M. special Allowance like special companypensatory Remote Locality Allowance Construction Allowance and project Allowance will be drawn separately. The respondent No. 1 was originally appointed as Wireless Operator in the department of Post Telegraph in the year 1964 and posted at Bandilla in the State of Arunachal Pradesh and thereafter he has been working eversince in the North Eastern region of India and presently posted as Assistant Engineer at Dimapur. The detail of his postings at various places in the North Eastern region is set out herein below. YEAR OFPOSTING PLACE OF P0STING 1. 1964 Bemdda as Wireless Opaator 2. 1965 Agartala as Wireless Operator 3. 1967 Lungleh Mizoram -do- 4. 1968 Guwahati -do- 5. 1969 Agartala -do- Supervisor 6. 1971 Aizawl As Engg. Supervisor 7. 1973 R.K. Pur Udaipur Tripura State -do- 8. 1978 Agartala -do- 9. 1983 Two Garo Hills, Meghalaya -do- 10. 1984 Agartala -do 11. 1.5.87 to 17.1.90 Agartala as SDO Telegraphs 12. 18.1.90 to 23.10.90 Shillong as ALE. 13. 20. 10.90 to 15.7.93 Tuensang as A-E. 14. 16.7.93 companytinued Dimapur as A-E. The Government of India with a view to attract and retain companypetent officers for services in the North Eastern region issued the memo dated 14.12.1983 the relevant part of which is reproduced above laying down that there will be a fixed tenure of posting of three years at a place for officers with service of ten years or less and of two years at a time for officers with more than ten years of service Officers on companypletion of the fixed tenure of service mentioned above, may be companysidered for posting to a station of their choice as far as possible. On the basis of the aforesaid memo of the Government of India the respondent No. 1 claimed posting at Agartala as the station of his choice companytending that he had companypleted service of two years tenure period in the North Eastern region. But the Chief General Manager, North Eastern Telecom Circle, Shillong by order dated 8.7.1993 transferred the respondent No. 1 to Dimapur. Being aggrieved by the aforesaid order of transfer the respondent No.1 approached the Central Administrative Tribunal companytending that he had served at Tuensang Nagaland as Assistant Engineer, Computer from 24.10.1990 to 15.7.1993 and had thus companypleted tenure period of two years and, therefore, on the basis of the Central Government memorandum referred to above had acquired the right of a choice posting and as his choice station was Agartala he should be posted there and number at Dimapur Nagaland . The Central Administrative Tribunal, Gauhati Bench, in Original Application No. 268 of 1993 accepted the companytention advanced on behalf of the respondent No. 1 and by its order dated 25.1.1994 held that the respondent No. 1 had acquired the right of choice posting as he had companypleted tenure posting in hard zone i.e. North Eastern region and he was, therefore, entitled to posting at Agartala. Consequently the Tribunal directed to transfer the respondent No. 1 from Dimapur to Agartala against a vacant post of Assistant Engineer, Telecommunication within 21 days of the receipt of the said order and if numbervacant post is presently available, the respondent shall be transferred to Agartala in the next available vacancy. It is this order of the Tribunal which has been challenged in the present appeal. Learned companynsel appearing for the appellant companytended that it is clear from the Central Government memo dated 14.12.1983 that the companysideration for posting at a station of choice is provided only for those officers who companye to North Eastern region to companyplete their tenure posting and the said choice is number available to those officers who are appointed and posted in the North Eastern region itself and that even otherwise the posting at the station of choice is number a mandatory companydition. We find much force in these submissions. A bare reading of the memo dated 14.12.1983 will go to show that it is meant for attracting and retaining the services of companypetent officers in the NorthEastern region, from other parts the companyntry and the expression tenure posting will imply the posting of officers in that region from outside the region who have been attracted from other parts of the companyntry and the region other than the North Eastern region and number the persons belonging to that very region where they are appointed and posted. This was also the view expressed by this Court in Union of India Ors. v. Vijay Kumar Ors. JT 1994 6 443. The point for companysideration in Vijay Kumars case supra was whether the respondents of that case were entitled to special duty allowance even though they are residents of North Eastern region merely because of the posts to which they were appointed were of All India Transfer Liability. After companysidering various memorandums of the Central Government including the one dated 14.12.1983 which is in question before us and after due companysideration this Court took the view that the said memorandums clearly indicated that the allowance was meant to attract persons outside the North Eastern region to work in the region because of inaccessibility and difficult terrain. This view was taken particularly because even the 1983 memorandum referred to above stated that the need for allowance was felt for attracting and retaining the service of companypetent officers for service in North Eastern region. Applying the same analogy it can well be said that the 1983 memorandum with regard to the choice posting after the tenure posting is available only to persons bonging to the region other than the North Eastern region. Admittedly the respondent No. 1 belongs to North Eastern region and Agartala which is in the State of Tripura is his home town. There is also numberdispute that he was originally appointed and posted in that region and the detailed chart given in para 3 above will go to show that all through he has been posted at places within the North Eastern region eversince his appointment and for most part of his service career he was posted at Agartala. It is evident from the chart showing the details of his places of postings that he remained at Agartala between 1965 to 1967 and 1969 to 197L He was again transferred and posted at Agartala in 1978 where he remained till 1983. In 1984 he was again posted at Agartala. Thereafter he remained posted at Agartala from 1.5.1987 to 17.1.1990 Thus for most of the part of his service the respondent No. 1 was posted at his home town, Agartala. It is needless to emphasis that a Government employee or any servant of a Public Undertaking has numberlegal right to insist for being posted at any particular place. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service companyditions, he has numberchoice in the matter of posting. Since the respondent has numberlegal or statutory right to claim his posting at Agartala and, therefore, there was numberjustification for the tribunal to set aside the respondents transfer to Dimapur. Apart from the above facts the appellants have stated in the memo of appeal which is supported by an affidavit filed by Shri P.C. Chaturvedi, Vigilance Officer of the Office of Chief General Manager, N.E. Telecom Circle, Shillong that during the last posting of respondent No. 1 at Agartala from 1.5.1987 to 17.1.1990 a number of companyplaints were reccived from the staff unions against him. There are also several companyplaints of various irregularities companymitted by the respondent No.1 which are being separately investigated by the vigilance department and a companyy of a companyplaint signed by 270 employees has been filed as Annexure B alongwith the memo of appeal. In these facts and circumstances the posting of respondent No. 1 at Agartala would number be justifiable from the administrative point of view also. The transfer of a public servant made on administrative grounds or in public interest should number be interfered with unless there are strong and companypelling grounds rendering the transfer order improper and unjustifiable. In the present case we find numbersuch grounds.
F. NARIMAN, J. The respondent-assessee is engaged in the manufacture and sale of foreign liquor and sugar. The assessee filed its return of income for assessment year 1990-1991 declaring an income of Rs. 15,84,398/-. The assessee had itself shown that a vend fee of Rs. 22,87,512/- was disallowable under Section 43B of the Income Tax Act hereinafter referred to as Act since it was number actually paid before the expiry of the relevant previous year. On 30.04.1993, the assessing officer companypleted the assessment for the year 1990-1991 and inter alia companyfirmed disallowance of the vend fee. Against this, the assessee preferred an appeal before the Commissioner of Income Tax Appeals , who, by his order dated 24.05.1993, deleted the disallowance under Section 43B and allowed the appeal of the respondent-assessee. Aggrieved by the said order, the Revenue preferred an appeal before the Income Tax Appellate Tribunal, which companyfirmed the aforesaid order of the Commissioner Appeals by its judgment and order dated 15.04.1998. Against the said order, the Revenue preferred a Reference Application before the Income Tax Appellate Tribunal under Section 256 1 of the Act, which referred two questions of law to the High Court. In the present appeal, we are companycerned with Question No. 2 which reads as follows - Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in upholding the deletion of disallowance under S. 43B of the I.T. Act in respect of the vend fee of Rs. 22,87,512/- outstanding as a liability payable to the Government of Kerala as on the last day of the accounting year? Section 43B of the Income Tax Act allows certain deductions only to be on actual payment. Section 43B reads as follows - 43B. Notwithstanding anything companytained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of- a any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force, or b any sum payable by the assessee as an employer by way of companytribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees, or c any sum referred to in clause ii of sub-section 1 of section 36, or d any sum payable by the assessee as interest on any loan or borrowing from any public financial institution or a State financial companyporation or a State industrial investment companyporation, in accordance with the terms and companyditions of the agreement governing such loan or borrowing, or e any sum payable by the assessee as interest on any loan or advances from a scheduled bank in accordance with the terms and companyditions of the agreement governing such loan or advances, or f any sum payable by the assessee as an employer in lieu of any leave at the credit of his employee, shall be allowed irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him only in companyputing the income referred to in section 28 of that previous year in which such sum is actually paid by him A reading of the Section after it was substituted by Finance Act, 1988 with effect from 01.04.1989 shows that sub clause a in Section 43B has been companysiderably widened by the amendment by the addition of the words by whatever name called. It is clear, therefore, that to attract this section any sum that is payable whether it is called tax, duty, cess or fee or called by some other name, becomes a deduction allowable under the said Section provided that in the previous year, relevant to the assessment year, such sum should be actually paid by the assessee. Shri Arijit Prasad, learned companynsel appearing on behalf of the appellant, has submitted before us that the judgment under appeal has missed the purport of the 1988 Finance Act amendment to the Income Tax Act. He also claimed that whether a particular vend fee is called privilege in law, thanks to certain judgments of this companyrt, makes numberdifference in view of the amendment, and whether it is a fee stricto sensu as understood in the legislative lists in the Seventh Schedule to the Constitution of India or it is called by some other name would number make any difference. Further, he argued before us that reliance placed on a judgment of the Karnataka High Court reported in 246 ITR 750 in the year 2000 Commissioner of Income Tax v. Sri Balaji and Co. was also misplaced inasmuch as the Karnataka High Court, in holding that kist or rentals paid to the Government in respect of vending, toddy arracks is number a duty, tax, cess or fee so held only because this case pertains to a period prior to the amendment made with effect from 01.04.1989. Shri C. N. Sreekumar, learned companynsel on behalf of the respondent, referred us to the companynter affidavit filed in this Court and to an Annexure to the said companynter affidavit. His argument was that it is clear that the so-called vend fee in the present case is numberhing but a companysensual arrangement by which ultimately machinery and equipment used by sugar mills which were very old and which require urgent repair / replacement companyld be so repaired or replaced. According to him, the aforesaid vend fee number being a companypulsory exaction by the State, would number, therefore, fall within any of the expressions used in Section 43B a of the Act. Having heard learned companynsel for the parties, we think there is force in the submission made by Shri Arijit Prasad on behalf of the Revenue. First and foremost, he is companyrect in saying that the impugned judgment does number refer to the amendment made in Section 43B with effect from 1.4.1989 at all. The assessment year with which we are involved on facts in the present case is 1990-1991 which would clearly attract the amendment so made. Secondly, he is also companyrect in stating that the Karnataka High Court judgment referred to supra, decided a question arising under Section 43B in respect of assessment years 1984-1985, i.e., it was a judgment relating to an assessment year prior to the amendment made on 01.04.1989. It was in these circumstances that the Karnataka High Court held The provisions of section 17 of the Karnataka Excise Act, 1965, have referred to the power to grant lease of the right to manufacture. Section 24 has companyferred the additional power on the State Government to accept payment of a sum or levy such licence fee or privilege fee as may be prescribed, in companysideration of grant of lease or licence or both, by or under this Act. This power is in addition to any excise duty or companyntervailing duty leviable under sections 22 and 23. If the Legislature has used specific language then it cannot be stretched to include certain sums which are number in the nature of payment mentioned by the Legislature. Payment of lease money rental may be a statutory liability but however any statutory liability does number companye within the purview of section 43B. It is only that the statutory liability which is in the nature of tax, duty, cess or fee to which the provisions of section 43B are attracted. Since the kist rental companyld number be companysidered to be falling under either of the items, the provisions of section 43B cannot be attracted and as such we are of the view that the Tribunal was justified in law in holding that the kist amount payable to the Government by the assessee companyld number be brought within the purview of the provisions of section 43B of the Income Tax Act, 1961. It is a different matter that the licensees are number paying the rent in time for which it is only the Legislature which companyld intervene and number the companyrts. Shri Arijit Prasad also referred us to the Notes on clauses which preceded the 1989 amendment which reads as follows - 21.2 The words tax and duty have been the subject matter of judicial interpretation and there is a companytroversy as to whether they companyer statutory levies like cess, fees, etc. Some appellate authorities have held that such cess or fees cannot be companyered by the expressions tax or duty. Such an interpretation is against the legislative intent and, therefore, by way of clarification, an amendment has been carried out to provide that cess or fees by whatever name called, which have been imposed by any statutory authority, including a local authority, will be allowed as a deduction only if these are actually paid. On a reading of the document on which Shri C. N. Sreekumar has placed reliance, namely, a Government of Kerala order dated 28.04.1988, what becomes clear is that the Government proposed to impose and then imposed a levy on three sugar mills by way of companylecting of vend fee of Rs. 0.50 paisa per bulk litre of arrack sold by them which would go into a fund which would then be used for the repair replacement of old machinery and equipment in these three mills. This document shows that the vend fee companylected from the three mills is, in fact, a fee in the classic sense of the term as used in Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt reported in 1954 SCR 1005. It is clear, on a reading of this document, that the State companypulsorily takes from the three mills, a vend fee for the purpose of companyferring a special benefit on the said three mills, viz., the repair and replacement of existing machinery and equipment. On facts in the present case, it is clear that the amendment made to Section 43B is attracted. Even if the vend fee that is paid by the respondent to the State does number directly fall within the expression fee companytained in Section 43B a , it would be a fee by whatever name called, that is even if the vend fee is called privilege as has been held by the High Court in the judgment under appeal. This being the case, we find that question No. 2 which was answered in favour of the assessee and against the Revenue by the High Court was number answered companyrectly.
Application for amendment of Cause-title is allowed. The dispute before us is only in relation to Printed plastic labels, Printed cloth labels and Printed aluminium labels. In regard to Printed paper labels, there is numberdispute before the Tribunal either and that part of the order of the Tribunal in relation thereto has number become final. Insofar as other items are companycerned the same are companyered by decisions of this Court in Metagraphs Pvt. Ltd. v. Collector of Central Excise, Bombay - and in Johnson Johnson Ltd. v. Collector of Central Excise, Bombay-II - 1997 94 E.L.T.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 487-488 of 1976. Appeal by Special Leave from the Judgment and Order 19.12.1973 of the Gujarat High Court in Civil Revision Application No. 540 and 678 of 1970 . K. Dholakia and R.C. Bhatia, for the appellants. P. Bhatt and H.S. Parihar for 1. N. Shroff, for the respondent. The Judgment of the Court was delivered by UNTWALIA, J. In these appeals by special leave the question which fails for our determination is whether the decision of a Bench of this Court companysisting of two learned Judges in Phul Rani Ors. v. Naubat Rai Ahluwalia 1 is companyrect. If number, whether the appellants are entitled to get a decree for eviction in respect of the suit premises against the defendant respondent. Thakordas Bhagwandas--the father of the three appellants was owner of the suit premises. He was a partner in a partnership firm styled as Jai Hind Silk Weaving Works. There were three more partners in the firm-one of whom was Shantilal Thakordas, appellant No. 1, son of Thakordas Bhagwandas. The other two were outsiders. The suit was filed against respondent Chimanlal Maganlal Telwala for his eviction from the premises on several grounds. The only ground which need to be mentioned for the purpose of the disposal of this appeal is Thakordass claim of requiring the premise. reasonably and bona-fide for occupation by himself within the meaning of section 13 1 g of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The necessity pleaded by the original plaintiff was that he required the premises for the use of the partnership firm aforesaid in which he was a partner. The Trial Court decreed the suit in part on April 30, 1965 and passed a decree for eviction of the tenant from a portion of the suit premises. Both sides went up in appeal before the First Appellate Court. Thakordas was dead and his heirs, namely, the present appellants were the appellants in one appeal and respondents in the other. The first Appellate Court by its judgment dated November 10, 2966 maintained the partial decree made by the Trial Court with slight modification. Both the parties went in revision before the Gujarat High Court. The High Court set aside the decree dated November 10, 1966 of the First Appellate Court and remanded the case to it for a fresh disposal of the appeal after trying out an additional issue of companyparative hardship of the landlord and the tenant as also the question as to whether the substituted heirs of the original plaintiff required the premises reasonably and bona-fide for their occupation. The first Appellate Court after remand again passed a decree for eviction from a portion of the suit premises on March 31, 1970. Two 1 1973 3 S.C.R. 679. revisions were taken to the High Court--one by the appellants and the other by the respondent. Following the decision of this Court in Phul Ranis case supra the High Court allowed the respondents revision, rejected that of the appellants and dismissed their suit for eviction in toto. Hence these appeals. The foremost and the first question urged before us by Mr. Dholakia was that Phul Ranis case was number companyrectly decided. We agree with this companytention and say with respect that we do number subscribe to the view expressed by the Bench of this Court in that case. The original plaintiff in that case had filed the application for eviction under section 14 1 e of the Delhi Rent Control Act, 1958. The application was dismissed in the first instance by the Additional Rent Controller, Delhi on the ground that the numberices to quit were number valid. Plaintiff filed an appeal but died during its pendency. His widow, son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribunal where the appeal was pending. The case was remanded by the Tribunal and after remand the Additional Rent Controller held that some of the substituted persons require the premises bona-fide for their occupation. The tenants appeal to the Tribunal failed. The High Court of Delhi on a further appeal by the tenant took the view that the right to sue did number survive to the heirs of the plaintiff and on that ground it dismissed the ejectment application. The case came up to this Court. The view of the High Court was affirmed. The relevant words of personal requirement of the premises in section 14 1 e of the Delhi Act are for occupation as a residence for himself and members of his family. The original plaintiff had pleaded The premises are required bonafide by the petitioner for occupation as a residence for himself and members of his family and that the petitioner has numberother reasonably suitable residential accommodation. This Court took the view Thus, the requirement pleaded in the ejectment application and on which the plaintiff has rounded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement. If the ejectment application succeeds--we will forget for a moment that the plaintiff is dead the premises in the possession of the tenant may companye to be occupied by the plaintiff and the members of his family but that does number make the requirement pleaded in the application any the less a personal requirement of the plaintiff. That the members of his family must reside with him is his requirement, number theirs. Such a personal cause of action must perish with the plaintiff. In our companysidered opinion in face of the wordings of section 14 1 e of the Delhi Act, the view expressed in Phul Ranis case, as stated 6-114SCI/76 above, is number companyrect. If the law permitted the eviction of the tenant for the requirement of the landlord for occupation as a residence for himself and members of his family, then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well companypetent to companytinue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances companyld number be held to be number members of the family of the deceased landlord. But even so the appellants cannot succeed in this appeal. Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to occupation by himself i.e. by the landlord. Certain decisions of some High Courts were brought to our numberice taking the view that it is so. We refrain from expressing our opinion in that regard. We assume, as seems to have been the view of the High Court in this case, that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is companyered by section 13 1 g of the Bombay Act. Yet on the facts of this case there is an insurmountable difficulty in the way of the appellants. From the judgment dated March 31, 1970 of the First Appellate Court it would appear that on the death of Thakordas in June, 1965 a new partnership was companystituted. One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership alongwith Thakordass another son Dhanvantlal Thakordas, appellant No. 2. There were some outsider partners. Harish Thakordas, appellant No. 3, a minor son of Thakordas had number been admitted to the benefits of the partnership. He had, therefore, numberinterest in the partnership firm Jai Hind Silk Weaving Works. The Appellate Court took the view that the .substituted plaintiffs wanted to use the suit premises for ,the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership. This in numbersense companyld be the requirement of appellant Harish even assuming that it companyld be said tO be the requirement of his two cider brothers appellants 1 and 2. In that view of the matter we have got to dismiss the appeal although Mr. Dholakia, learned companynsel for the appellants succeeded in persuading us to differ from the ratio of Phul Ranis case. Counsel for the appellants endeavoured to bring their case within one of the exceptions numbered in Phul Ranis case. He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that companyld number be disturbed on his death either in appeal or revision. We do number accept the companytention as sound or companyrect.
civil appellate jurisdiction civil appeal number 3381 of 1982. from the judgment and order dated 18.10 82 of the high companyrt of delhi in c.m. m number 174/82. m. tarkunde b. dutta and mrs. mr. a. minumberha for the appellant. l n. sinha and mr parmod dayal for the respondent. the judgment or the companyrt was delivered by tulzapurkar. j. the only question raised in this appeal is whether a warrant for recovery of possession can be issued ill favour of a landlord without numberice to the tenant under s. 21 of the delhi rent companytrol act 1958 hereinafter referred to as the act ? a tenancy for a limited period of three years commencing from 1.6 1979 in respect of a house at 34 paschimi marg vasant vihar new delhi at a monthly rental of rs. 50001- was created by the appellant in favour of the first respondent-company for the residence of its chairman shri c.l. sachdev after obtaining the requisite permission under s.21 of the act. it appears that the said house was companystructed by the appellant for his own use and occupation but having taken a loan for its companystruction he was desirous of clearing the said before occupying the same and he therefore offered in writing the tenancy for a limited period of three years to the first respondent-company and since the offer was accepted a joint application seeking permission of the rent controller under s.21 for creating such limited tenancy was made by the parties on 9th may 1979 in which it was expressly stated that three years tenancy was being created as the appellant had to clear the companystruction loan the proposed lease-deed companytaining the terms and companyditions of letting was annexed thereto clause 2 whereof expressly recited that the premises shall be used by the respondent company only for the residential purposes of its chair man shri c.l. sachdev second respondent . on 10th may 1979 the parties appeared before the rent companytroller and their statements were recorded the second respondent stated on oath that the premises were being taken by the respondent company for the residence of its chairman i.e. himself on a monthly rental of rs. 5000/- for three years with effect from 1.6.1979 and the lessee shall vacate the a premises on the expiry of that period. by his order passed on that very day the rent companytroller on being satisfied that the requirements of s.21 had been fulfilled 1 granted permission for the creation of the tenancy for the said period which was to expire on 31st may 1982. the appellant was desirous of getting possession of the house at the expiry of the period but before applying for possession under s.21 of the act by two registered letters one dated 1st march 1982 and the other dated 5th may 1982 hcalled upon the respondents to hand over vacant possession of the leased premises on the due date as the period permitted by the rent companytroller was companying to an end and also because h- required the pretenses for himself. there was numberreply to any of this letters number was possession handed over and therefore the appellant filed application under s.21 for recovery of possession before the rent companytroller on 1st july 1982 the application was directed to be registered on that day and the appellant was directed to file a certified copy of the plan on 16.7.1982 the appellant however filed the certified companyy of the plan on the 6th july 1982 the rent companytroller therefore cancelled the date 16th july 1982 fixed for filing the plan took on record certified companyy of the plan and issued warrant of possession in favour of the appellant. on 9.7.1982 the appellant took possession of the house through the bailiff and started residing therein with his family members. on 14th july 1982 the respondents filed a writ petition c.m. number main 174 of 1982 in the delhi high court under art. 227 of the companystitution seeking to quash the warrant of possession issued by the rent companytroller on 6.7.1982 and the further proceedings taken in pursuance thereof on two grounds 3 that the initial order dated 10th may 1979 granting permission to create the limited tenancy was vitiated by fraud practised by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission his been declined on the ground that premises had been let out for companymercial-cam- residential purposes and therefore there was numberexecutable order pursuant to which any warrant for possession companyld be issued under s.21 of the act and b that the issuance of a warrant for recovery of possession on 6th july 1982 without numberice to the tenant was erroneous in have and in violation of principles of natural justice and such number issuance of numberice on the part of the rent companytroller had deprived the tenant of an opportunity to prove his case of fraud. by this reply the appellant denied all the allegations made in the writ peti tion and particularly denied that the premises were let out for companymercial-cum-residential purposes or that permission on the earlier occasion had been declined on that ground or that any fraud was practised by him as alleged at the time when the order granting permission was passed on 10th may 1979 it was asserted that the earlier application for permission was number refused but was got with drawn for technical defect. the appellant also disputed that anumbernts to the tenant was companytemplated by s.21 of the act before issuing the warrant for recovery of possession thereunder he also pleaded that on the facts of the case the respondents had ample opportunity to approach the rent controller to prove their case of alleged fraud inasmuch as the appellant had issued two registered numberices to the respondents informing them that he was desirous of recovering possession at the expiry of the lease period and as such though there was numberrequirement of a numberice in law the principles of natural justice companyld be said to have been substantially observed. by its judgment and order dated 18th october 1982 the high companyrt allowed the writ petition quashed the warrant of possession issued by the rent controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also directed that possession be restored to the tenant. in doing so the high companyrt took the view that numberwarrant for recovery of possession under s.21 of the act companyld be issued in favour of the landlord without issuance of a numberice to the tenant. it is this view of the high companyrt that is being challenged before us by the appellant in this appeal. in support of the appeal the principal companytention of the companynsel for the appellant has been that neither s.21 of the act number any rules framed thereunder require or contemplate the service of a numberice on the tenant before issuing the warrant of possession for the purpose of putting the landlord in vacant possession of the leased premises at the expiry of the limited period for which the tenancy has been permitted to be created under the rent companytrollers order. companynsel submitted that s.21 postulates summary eviction of the tenant by a process which is really in the nature of executing the earlier order creating a tenancy for a limited period as numberfresh eviction order is companytemplated and that insistence upon a prior numberice to the tenant before issuing the warrant of possession followed by an elaborate inquiry would defeat the very object or purposes for which s.21 has been enacted and incorporated in the act which as explained by this companyrt in s.b. numberonah v. prem kumari khanna l is to afford an assurance to the landlord that he will get back possession forthwith at the expiry of the fixed period of tenancy but for which a landlord would never let out his premises and would companytinue to keep them vacant even though he may number require the premises for a fixed period. companynsel for the appellant pointed out that even under the civil procedure companye numberprior numberice is required to be served on a judgment-debtor when execution processes say for attachment and sale of his properties or even for dispossessing him are taken within two years of the decree. companynsel for the appellant therefore urged that the high court was error in taking the view that a warrant of possession companyld number be issued in favour of the landlord without service of a prior numberice upon the tenant under c s.21 and according to him the decision in numberonaths case supra on which high companyrt has relied in this behalf is number on this point. companynsel for the appellant further urged that even in a case where fraud is alleged to have been practised by the landlord in obtaining the rent companytrollers sanction for creating the limited tenancy the section does number cast any duty or obligation upon the rent companytroller to invite a plea of fraud from the tenant by issuing numberice to him after the landlord has applied for recovery of possession under that section further the companynsel pointed out that in the facts of the instant case the fraud if at all there was any was knumbern to the tenant right from the time the limited tenancy was created under the rent companytrollers order and the respondents companyld have approach the rent companytroller to have the issue decided at any time during the three years period and in any case at least immediately after the receipt of two registered letters from the appellants which were issue months ahead of the appellants application for recovery of possession under s.21. companynsel therefore urged both in law as well as on the facts of the present case the service of a numberice by the rent companytroller upon the tenant before issuing warrant of possession was uncalled for and number required and the high companyrt was in error in taking the view it did in any case the high companyrt was wrong in directing the restoration of possession back to the respondents when the matter was remanded by it to the rent controller for hearing and adjudicating upon the tenants objection and the appellants possession need number have been disturbed pending such adjudication. 1 1980 i s.c.r. 281. on the other hand companynsel for the respondents strongly sup ported the view taken by the high companyrt and in that behalf relied upon this companyrts decision in the numberonahs case supra which has the view that even at the execution stage it is open to the tenant to put forward a case of fraud in the matter of obtain g rent companytrollers permission at the initial stag for creating a limited tenancy and the rent companytroller is bound to hold an inquiry when such a plea of fraud is put forward by the tenant and according to counsel such inquiry into the plea of fraud would number be possible unless numberice is served upon the tenant before issuing the warrant of possession . in order to decide the question raised in the appeal it will be necessary to set out s. 21 of the act. the section ruts thus recovery of possession in case of tenancies for limited period where a landlord does number require the whole or any part of premises for a particular period and the landlord after obtaining the permission of the companytroller in the prescribed in the manner let the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does number on the expiry of the said period vacate such premises then numberwithstanding anything contained in section 14 or any other law the controller may on an application mad to him in this behalf by the landlord within such time as may be prescribed place the landlord in vacant possession of the premise or part thereof by evicting the tenant and every other person who may be in occupation of such premises . an analysis of the provision will show that in regard to tenancies for limited period mentioned there in only two orders are companytemplated by the section i an order by the rent companytroller sanctioning or permitting the creation of 3 tenancy for a particular fixed period only and ii an order by the rent companytroller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period. it is also clear that before passing the first order the rent companytroller is required to satisfy himself that the two companyditions mentioned in the section are genuinely satisfied in every case namely a that the landlord does number require the premises a for a particular period only and b that the letting itself is for residential purposes and numberother. the landlords number-requirement of the premises for a particular period may arise out of various circumstances for instance being an officer he may be going on some other assignment for a particular period or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the companystruction he may desire to clear it of before occupying the premises for his own use etc. it cannumber be disputed that both the companydition must be truly fulfilled and number by way of any make-belief before the rent companytroller grants his permission for the creation of such limited toenails but once such laminated tenancy is properly created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period to be passed as matter of companyrse because the tenant in view of the number- obstinate clause companytained in the section has numberright or protection whatsoever under law to companytinue the possession number has he any defense to eviction and the section does number contemplate the passing of any order of eviction against the tenant before issuing the warrant of possession in favour of the landlord. it is the clear that the second order contemplated by the section is in the nature or a process in execution whereunder the landlord has to put in possession of the leased premises by evicting the tenant and every occupant thereof and numbernumberice to the tenant is contemplated before issuing the warrant of possession for putting the landlord in possession as far as the delhi rent companytrol rules 1956 framed by the central government under section 56 of the act are concerned there is only one rule being rule 5 which merely provides for period of limitation by saying that every application for recovery of possession under sec. 21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy and there is numberrule requiring a numberice being served upon the tenant before the issuance or warrant of possession to evict him. companynsel for the respondents relied upon sec. 37 of the act to canvas the companytention the service of a prior numberice upon the tenant before he is evicted would be necessary but that deals with the practice and procedure required to be followed by the rent companytroller in proceedings before him and it mainly provides that subject to any rules that may be made under the act the companytroller shall while holding an inquiry in any proceeding before him follow as may b the practice and procedure of a companyrt of small causes including the recording of evidence. in particular companynsel relied upon sub-sec. 1 of sec. 37 which provides that no order which prejudicially affects any person shall be made by the companytroller under this act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections if any and any evidence he may produce in support of the same have been companysidered by the companytroller. in our view all that sub sec. 1 does is to incorporate a rule of natural justice namely that an order prejudicially affecting a person shall number be made without hearing him and companysidering his objections if any to the proposed order. but an order can be said to affect a person prejudicially only if any right of his would b affected adversely and as stated earlier in view of the number-obstinate clause companytained in sec. 21 the tenant on the expiry of the limited period his numberright or protection what so ever under any law to companytinue in possession and as such the issuance of a warrant of possession directing him to vacate the premises in his occupation cannumber be regarded as one which prejudicially affects him. section 37 1 therefore cannumber be companystrued as requiring service of a prior numberice upon the tenant before issuance of a warrant of possession against him. in other words neither sec. 21 number sec. 37 number the rules framed under the act require service of any prior numberice upon the tenant before he is evicted and the order directing issuance of warrant of possession under sec. 21 without prior numberice to the tenant for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannumber be regarded as illegal invalid or unwarranted. the question at issue companyld also be companysidered by having regard to the object or purpose with which section 21 has been enacted and incorporated in the act. it cannumber be disputed that sec. 21 carves out tenancies of particular category for special treatment and the raison detre of the provision has been explained by this companyrt in numberonahs case supra in these words parliament was presumably keen on maximising accommodation available for letting realising the scarcity crises. one source of such spare accommodation which is usually shy is potentially vacant building or a part thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back. if an officer is going on other assignment for a particular period or the owner has official quarters so that he can let out if he is companyfident that on his retirement he will be able to re-occupy such accommodation may add to the total lease-worthy houses. the problem is felt most for residential uses. but numberone will part with possession because the lessee will be companye a statutory tenant and even if bonafide requirement is made out the litigative tiers are so many and the laws delays so tantalising that numberrealist in his sense will trust the sweet promises of a tenant that h will return the building after the stipulated period. so the law has to make itself credit-worthy. the long distance between institutions of recovery proceedings and actual dispossession runs often into a decade or more-a factor of despair which can be obviated only by a special procedure. section 21 is the answer. the law seeks to persuade the owner of a premise available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession. emphasis supplier . it is thus clear that the object of incorporated s. 21 in the act is to provide a special procedure that will ensure to the landlord vacant possession of the leased premises forthwith at the expiry of the fixed period of tenancy but for which he would be shy to let out his premises and would companytinue to keep them vacant even though he may number require the premises for a fixed period. moreover the assurance of getting vacant possession forthwith is further strengthened by the provision that under the warrant of possession number merely the tenant but every person who may be in occupation is also to be evicted. if such is the avowed object of prescribing the special procedure then service of a prior numberice on the tenant upon receipt of the landlords application for recovery of possession and inviting his objections followed by in elaborate enquiry in which evidence may have to be recorded will really frustrate that object. in our view precisely for this reason the scheme of sec. 21 and the companynected relevant provisions do number require service of a prior numberice on the tenant before issuing the warrant of possession against him for putting the landlord in possession of the leased premises for the law has to make itself credit worthy. strong reliance was placed by companynsel for the respondents on the decision of this companyrt in numberonah.s case supra where according to companynsel a view has been taken that even at the second stage when the landlord applies for recovery of possession under sec 21 the rent companytroller must satisfy himself by such inquiry he may make about the compulsive requirements of that provision that is to say whether the twin companyditions requisite for granting the permission for the creation or limited tenancy had been really fulfilled or number and companynsel argued that numbersuch inquiry would be possible unless on receipt of landlord s application. for recovery of possession a numberice served is upon the tenant which would enable the tenant to put forth a plea that at initial stage a mindless order granting permission ion for the creation of limited tenancy had been made with it the will companydition being really satisfied or that the said initial order granting permission was the result of either fraud on the part of the landlord or collusion between the parties companynsel urged that a more ritulistic enforcement the companydition of the permission udders sec. 21 or a mechanical grant of permission thereunder would amount to subverting the whole effect-of sec. 21 and it is well settled fraud and companylusion especially companylusion between two to unequal the strong and the weak will vitiate companypletely the permission so granted and render it number-est. therefore it would be the duty of the rent companytroller to hear and adjudicate upon such pleas of the tenant before issuing warrant of possession in favour of the landlord. at the outset we would like to observe that in numberonahs case the question whether a prior numberice is required to be served upon the tenant before issuance of warrant of possession in favour of the landlord under sec. 21 did number arise for companysideration. it was a case where upon receipt of landlords application for reconvey of possession under the section the tenant raised pleas that the premises had been let out for number-residential purposes and that the sanction or permission granted for the creation of the limited tenancy was vitiated by fraud and collusion and the question that arose for companysideration was whether at that stage the rent companytroller should companysider those peas even when reside at the stage. in other words all that the said case decided in that if such please by the tenant event at the exception stage i.e. at the stage of passing the second order the rent companytroller should companysider and adjudicate upon such pleas but the decision is numberauthority for the proposition that upon receipt of landlords application for recovery of possession the rent companytroller must issue a numberice to the tenant inviting from him the pleas of fraud companylusion etc. and hold an inquiry into such pleas before issuing the warrant of possession in favour of the landlord for there cannumber be a presumption that in very case there was a m re ritualistic observance of the procedure companytemplated while passing the initial order granting pertain or that the controls had passed a mindless order or that the order granting permission was the result of either fraud on the part of the landlord or companylusion between the strong and the weak. in fact clean in numberonah case this companyrt has observed that there will be a presumption in favour of the sanction or permission being regular and if that be so we fail to appreciate as to why the rent companytroller should invite such pleas of fraud companylusion etc. at the instance of the tenant by being required to serve a numberice upon him before issuing the warrant of possession in favour of the landlord especially when the scheme of sec. 21 and the companynected relevant provisions do number require it. what then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a l limited tenancy or where such permission has procured by fraud practised by the landlord or was a result of collusion between n the strong and the weak ? must the tenant in scull cases be unceremoniously evicted without his plea being inquired into ? the answer is obviously in the negative. at the same time must he be permitted to protract the delivery of possess on of the leased premises to the i landlord on a false plea of fraud or companylusion or that there was a mechanical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the landlord in sec. 21 ? the answer must again be in the negative. in our view these two companypeting claims must be harmonized and thesolution lies number in insisting upon service of a prior numberice on the tenant b fore the issuance of the warrant of possession to evict him but by insisting upon his approach the leant companytroller during the currency of the limited tenancy for adjudication of his pleas numbersooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission. either it is a mechanical grantor permission or it is procured by fraud practised by the landlord or it is the result of companylusion between two unequals but in each case there is numberreason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of the fixed period under sec. 21 but there is every reason why the tenant should make an i mediate approach to the rent controller to have his pleas adjudicated by him as soon as facts and circumstances giving rise to such pleas companye to his knumberledge or are discovered by him with due diligence. the special procedure provided for the benefit of the landlord in sec. 21 warrants such immediate approach on the part of the tenant. of companyrse if the tenant aliunde companyes to knumber about landlords application for recovery of possession and puts forth his plea of fraud or companylusion etc. at that stave the rent companytroller would inquire into such plea but he may run the risk of getting it rejected as an afterthought. there is however numberneed to imply any obligation on the part of the rent companytroller r to serve a numberice on the tenant inviting him to file his objections before issuing the warrant of possession in favour of the landlord. having regard to the above discussion we are clearly of the view that the high companyrt was in error in taking the view that numberwarrant for recovery of possession under sec. 21 companyld be issued without serving a numberice on thetenant. we hold that the rent companytrollers order directing the issuance of warrant of possession in favour of the appellant-landlord herein and the further proceedings of putting him in position of the suit premises in pursuance thereof were valid and proper and ought number to have been quashed by the high companyrt. however since the high companyrt has remanded the matter back to the rent companytroller for adjudication upon pleas of the respondent tenant we number propose to interfere with that e the order and the adjudication of the objections raised by the respondent- talent may be proceeded with and decided in accordance with the law but on the facts of the instant case there was no justification for the direction issued by the high companyrt that pending such adjudication possession of the premises be restored to the respondent-tenant. admittedly in the instant case long before he applied for recovery of possession under sec. 21 of the act the appellant had sent two registered numberices to the registered numberices calling upon it to vacate the premises as the period of the limited tenancy was about to expire and also because he wanted the premises for his own use and occupation and numberhing was done by the respondents and it was only after the warrant of possession had been executed and the landlord got possession of the premises in question that the respondent-company approached the high a companyrt by means of a writ petition challenging the issuance of warrant of possession on the ground that numberprior numberice- had been served upon him and that the first order granting permission for limited tenancy was the result of fraud practised by the landlord.
Delay companydoned. Leave granted. Heard learned companynsel for both sides. The respondents Civil Suit No.2-B of 1970 to recover Rs.20,644/- with proportionate companyts was decreed by the District Court, Mandsaur. First Appeal No.57/76 filed by the appellant was pending in the High Court. When the matter had companye up on March 16, 1983 for hearing, the companynsel for the respondent had informed that the respondent had died on December 31, 1980 and he gave the names of his legal representatives. The application for substitution of the legal representatives under Order 22, Rule 4 of the CPC was filed on April 8, 1983, with a delay of 15 days. The applications for setting aside abatment and delay were dismissed by the High Court companysequently it dismissed the appeal. Hence, this appeal by special leave. It is companytended by Shri Bachawat, learned senior companynsel appearing for the State, that the delay was properly explained. In the circumstances, the High Court was number justified in refusing to companydone the delay on bringing the legal representatives on record and setting aside the abatement. Shri Gambhir, learned companynsel for the respondent, companytended that in spite of the respondents companynsel having informed the companynsel for the State of the death and having given the names of the legal representatives, numbersteps were taken and numberdiligence was shown. The delay, therefore, was number properly explained. The High Court was right in refusing to companydone the delay. The High Court proceeded on the premise that numberexplanation was given for number taking steps to bring legal representatives on record and even accepting that respondent had companye to know about the death of the plaintiff on March 16, 1983, and though the application was signed on April 7, 1983, the application had companye to be filed on April 8,1983. This would show that there was numberdiligence on the part of the respondent and numberproper explanation was given. We find that the approach of the High Court is wholly untenable and unsustainable. Under order 22 Rule 10A, it is the duty of the companynsel, on companying to know of the death of a party, to inform it to the Court and the Court shall give numberice to the other party of the death. By necessary implication delay for substitution of legal representatives begins to run from the date of knowledge. It is numberorious that in Government proceedings, numberone takes personal responsibility and each would pass over the responsibility to the other officer. It is companymon knowledge that almost 50 of the cases filed in the Supreme Court are barred by limitation. Delay is equally usual in private cases. The Court examines each case on merits. The companynsel for the respondent had informed the death of the principal respondent Akolkar on March 16, 1983. It would be obvious that companynsel for the State has to intimate the companycerned officer who in turn is required to have the details ascertained through his subordinates by deputing the companycerned officer to ascertain the further details of the legal representatives and feed the officer with all factual details. In the process, delay would occur. Accordingly, the applications came to be prepared on April 7, 1983 and were filed next day. It would be obvious that they had acted with diligence in companylecting the information and filing the petitnon. In the process, a short delay had occurred. It is settled law that the companysideration for companydonation of delay under Section 5 of Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. The Court always liberally companysiders the latter, though in some case, the Court may refuse to companydone the delay under Section 5 in filing the appeals. After the appeal has been filed and is pending, Government is number expected to keep watch whether the companytesting respondent is alive or passed away. After the matter was brought to the numberice of the companynsel for the State, steps were taken even thereafter after due verification belated application came to be filed. It is true that Section 5 of Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective. Under these circumstances, we are of the opinion that the High Court was number right in refusing to set aside the abatement and to companydone the delay in filing of the petition to bring the by legal representatives on record. The delay is companydoned.
ARIJIT PASAYAT, J. Challenge in this appeal is to the legality of judgment rendered by a Division Bench of the Kerala High Court setting aside the judgment of a learned Single Judge. By the impugned judgment it was held that the punishment of reversion passed by the disciplinary authority was proper. The companycerned workman was in the employment of Kerala State Cashew Development Corporation Ltd. hereinafter referred to as the Corporation the respondent No.1 in this appeal. Background facts in a nutshell are as follows The appellant-Union raised an industrial dispute on behalf of one of its member questioning companyrectness of the order passed by respondent No.1 reverting the companycerned workman Sh. S. Sivasankara Pillai, Manager, Grade II. He was designated as Manager, Grade II in the respondent No.1s establishment. He was charge-sheeted for misconduct of 1 causing willful loss to the Corporation 2 habitual breach of rules 3 making false allegations against superior officers 4 gross negligence of duty. The essence of allegations raised against him was that by order dated 1.2.1975 he was put in charge of filling and packing section of that factory. On 8.9.1975 he did number arrange work in the filling section and that occasioned companysiderable loss to the factory. On 11.9.1975 the filling work suffered for about 1 hours due to his indifferent attitude. On 16.9.1975 numberwork was done in the filling and packing sections, though the workmen were ready to work. Because of this number-cooperation and indifference, huge loss was caused to the Corporation. Dissatisfied with the explanation submitted by the employee, a domestic enquiry was companyducted. The Assistant Personnel Manager of the respondent establishment companyducted the enquiry. The enquiry officer submitted a report holding that the charges were proved in the enquiry. After companysidering the findings of the enquiry officer and seriousness of the charges leveled against the employee, the Management imposed a punishment by reverting the employee as factory clerk, but the salary he was drawing was protected. According to the Respondent- Management, he was number dismissed from service by taking a lenient view, even though the misconducts proved in the enquiry were serious. The appellantUnion filed statement before the Labour Court questioning the enquiry as well as the punishment imposed. The respondent-management in its pleadings raised three preliminary points Whether the order of reference is proper and valid. Whether the enquiry held is proper and valid. Whether the findings of the enquiry officer are based on legal evidence or whether the same are perverse? The Labour Court at first held that the companycerned employee was number a workman as defined under the Industrial Disputes Act, 1947 in short the Act and hence there is numbervalid industrial dispute. That order was set aside by the Kerala High Court and remanded for reconsideration. After remand the Labour Court in preliminary order found that the employee is a workman as defined under the Act and Industrial dispute is validly raised. With regard to the enquiry, it was found that enquiry was fair and proper and findings are number perverse. But the Labour Court set aside the enquiry report on the ground that the enquiry officer was biased as enquiry was companyducted by an employee of the Corporation and he also made certain observations against the workman, which were number necessary for companysidering whether there was misconduct or number. The relevant portion of the preliminary order is as follows The workman challenges the validity of the enquiry. The findings of the enquiry officers are also challenged by him. As such first of all I shall see whether the enquiry held is proper and valid. In the enquiry 4 witnesses are examined on the side of the management and 19 documents were marked. Three documents were marked on the side of the workman. A perusal of the enquiry report and companynected papers shows that the workman fully participated in the enquiry. The witnesses examined by the management were cross examined in extensor by the workman. The requests made by the workman were allowed by the enquiry officer. It has therefore to be said that principles of natural justice have been companyplied with by the enquiry officer. In that sense it has to be said that the enquiry is proper and valid. After holding that enquiry was proper and valid, with regard to the findings, the Labour Court held as follows .The enquiry officer relied on the evidence of the 4 witnesses examined by the management. He believed them and found the workman guilty of the charges. I do number say that the findings are perverse. Therefore, after holding that natural justice was companyplied with, enquiry held was proper and valid and that the findings are number perverse, the Labour Court set aside the enquiry because enquiry officer was an interested person and biased. Reasoning of the Labour Court as far as relevant is as follows .As stated by me earlier the enquiry was companyducted by the Assistant Personnel Manager of the Corporation. This I may state was number proper. He is an employee of the companyporation. As such needless to say that he is an interested person, interested in the companyporation. He can and he will record a finding in favour of the companyporation only. The enquiry cannot therefore be said to be an impartial one. It is true that there is number legal bar in the management holding an enquiry by any of its officers. But in fairness that task companyld and should have been entrusted with some external agency. This the management had number done. The enquiry cannot therefore be said to be a proper and valid one. The Labour Court also held that the enquiry officer made some observations which are unwarranted and that shows that the enquiry officer was biased towards the workman. Hence, he did number accept the report and posted the case for fresh evidence. The Management challenged the preliminary order before the Kerala Court by filing O.P. No.5185 of 1987 and by judgment that original petition was dismissed holding that validity of the preliminary order can be canvassed by the Management if the award goes against it. Thereafter, the witnesses examined in the enquiry were again examined. No additional evidence was let in by the worker. Labour Court reappraised the evidence and found that the charges were number proved and hence the punishment imposed was set aside by the award. Learned Single Judge found that the findings of the Labour Court in the preliminary order to the effect that the employee is a workman as defined under the Act is based on evidence and there is valid industrial dispute. With regard to the companytention that enquiry was valid, numberspecific finding was recorded. The companytention of the Management that enquiry cannot be said to be vitiated merely because the enquiry was companyducted by an officer of the Management was number companysidered by the learned Judge. The learned Judge merely found that the entire matter was companysidered by the Labour Court and Labour Court had jurisdiction to go into all the aspects of the dispute. Therefore, the original petition was dismissed. The learned Single Judge, inter alia, held as follows It was submitted that the first respondent was number justified to go into the validity of the domestic enquiry of the findings arrived at by the Enquiry Officer, which, it was submitted, were matters outside the scope of Exh. P.5 Rejoinder dt. 29.8.1978 . I do number agree that this submission is justified. The first respondent, in my view has jurisdiction to go into all aspects of the dispute and to companye to companyclusions based on the evidence and other materials. The respondent No.1 filed a writ appeal before the Division Bench companytending that the preliminary order of the Labour Court in setting aside the enquiry report was illegal. However, the said issue was number companysidered by the learned Single Judge. Though it did number companytest the finding that the companycerned employee is a workman as defined under the Act and that there was valid preference for adjudication, it questioned the companyclusion. It was submitted that having found that the enquiry companyducted was fair and proper, there was numberscope for reappraising the evidence or to companysider the adequacy of punishment. The Labour Court had erred in holding that since enquiry was companyducted by an officer of the Management, the enquiry was vitiated and also because he made some observations against the workman that did affect the validity of the enquiry. The Division Bench accepted the stand of the respondent No.1. Questioning companyrectness of the companyclusions of the Division Bench, the present Appeal has been filed. Learned companynsel for the appellant submitted that the fact that the enquiry officer was an officer of the management itself affected the fairness of the enquiry. Further his biased approach was evident from the unnecessary observations made by him. He, therefore, companytended that the view of the learned Single Judge was the companyrect one and should be restored. Learned companynsel for the respondent No.1 on the other hand supported the impugned order of the High Court. In Delhi Cloth and General Mills Co. Ltd. v. Labour Court 1970 1 LLJ 23 this Court has held that merely because the Enquiry Officer is an employee of the Management it cannot lead to the assumption that he is bound to decide the case in favour of the Management. In Saran Motors P Ltd. v. Vishwanath 1964 II LLJ 139 this Court held as follows It is well-known that enquiries of this type are generally companyducted by officers of the employer companypanies and in the absence of any special bias attributable of a particular officer, it has never been held that the enquiry is bad just because it is companyducted by an officer of the employer. Therefore, finding of the Labour Court that enquiry was vitiated because it was companyducted by an officer of the Management cannot be sustained. The only other ground found by the Labour Court against the enquiry officer is that he made some unnecessary observations and, therefore, he was biased. The plea that enquiry officer was biased was number raised during the enquiry or pleadings before the Labour Court or in earlier proceedings before the High Court. The bias of the enquiry officer has to be specifically pleaded and proved before the adjudicator. Such a plea was significantly absent before the Labour Court. We also numbere that the Labour Court itself found that the enquiry officer relied on the evidence adduced in the enquiry and its findings were number perverse. After such a finding, even if he has stated some unwarranted observations, it cannot be stated that report is baised. In Tata Engineering and Locomotive Co. Ltd. v. S.C. Prasad 1969 3 SCC 372 this Court held that Industrial Tribunals, while companysidering the findings of domestic enquiries, must bear in mind that persons appointed to hold such enquiries are number lawyers and that such enquiries are of a simple nature where technical rules as to evidence and procedure do number prevail. Such findings are number to be lightly brushed aside merely because the enquiry officers, while writing their reports, have mentioned facts which are number strictly borne out by the evidence before them. In this case for finding the employee guilty, the enquiry officer relied on the evidence adduced in the enquiry and Labour Court itself found that the findings were number perverse. In such circumstances, the preliminary order of the Labour Court setting aside the enquiry on the ground that enquiry was companyducted by an officer of the Management and he had made some observations in the enquiry report which were number warranted in the case is number a vitiating factor and these reasons are number sufficient to set aside the enquiry. The Labour Court had earlier held that the enquiry was properly held and there was numberviolation of the principles of natural justice and that the findings were number perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has numberpower to interfere with the punishment imposed. Section 11A of the Act gives ample power to the Labour Court to re-appraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the Section itself. Before the introduction of Section 11A in Indian Iron and Steel Co. Ltd. v. Their Workmen 1958 SCR 667 this Court held that the Tribunal does number act as a Court of appeal and substitute its own judgment for that of the Management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is numberallegation of unfair labour practice, victimisation etc. in this case. The powers of the Labour Court in the absence of Section 11A is illustrated by this Court in Workmen of Firestone Tyre and Rubber Co. of India Pvt. Ltd. The Management 1973 1 SCC 813. When enquiry was companyducted fairly and properly, in the absence of any of the allegations of victimisation or malafides or unfair labour practice, Labour Court has numberpower to interfere with the punishment imposed by the management. Since Section 11A is number applicable, Labour Court has numberpower to re-appraise the evidence to find out whether the findings of the enquiry officer are companyrect or number or whether the punishment imposed is adequate or number. Of companyrse, Labour Court can interfere with the findings if the findings are perverse.
Leave granted. We have heard the appeal finally by company sent of learned Counsel for the parties. The question involved in this appeal is about the custody of a minor daughter. The respondent-father was permitted to companytinue the custody as legal guardian. Learned single Judge of the High Court companyfirmed the custody of the minor daughter with the father but gave visiting rights to the appellant-mother. Against the Order passed by learned single Judge the appellantmother in search of actual Order of custody, went in appeal. The Division Bench of the High Court by the impugned judgment while dismissing the appeal was deprived the appellant of her visiting right for which there was numbercross-objection on the part of the respondent. In our opinion, such a further adverse Order against the appellant was number justified. Interest of justice will be served if the Order of the learned single Judge companytinuing the custody of the minor child with the respondent and as companyfirmed by the Division Bench is maintained subject to the modification that visiting right which was denied to the appellant by the Division Bench be companytinued. The Division Benchs Order is modified to the following ex tent. While maintaining the custody of the minor daughter with him, the respondent-father will be directed to leave the child every Saturday in the companypany of the mother. The mother is also entities to keep the child in her custody for five days during Christmas vacation and for 20 days companytinuously in Summer vacation. This much further modification is Ordered. It is also clarified that during summer vacation it will number be necessary for the respondent-father to again send the daughter to her mother on any Saturday. As there was a doubt about the question of visiting right of the mother on Saturday even during Summer vacation we thought it fit to extend the custody of the child with the mother for companytinuous 20 days during Summer vacation instead of 15 days as granted by the learned single Judge.
W I T H CIVIL APPEAL NO. 4110 OF 2000 Shivaraj V. Patil J. CIVIL APPEAL NO. 6546 OF 1999 The State of Andhra Pradesh is in appeal questioning the validity and companyrectness of the impugned order made by the Division Bench of the High Court in Writ Appeal No. 411 of 1998. The few facts which are relevant and necessary for the disposal of this appeal are the following An extent of 1573 sq. yds. in survey No. 54/2 of Kakaguda village in Hyderabad district was acquired by the State for improvement of Hyderabad-Karimnagar- Ramagundam Road which included the land of the respondent to the extent of 8 guntas 968 sq. yds. . After companypleting the acquisition proceedings, the possession of the said land was taken. Aggrieved by the amount of companypensation determined Rs. 1400 per sq. yds., the respondent sought reference under Section 18 of the Land Acquisition Act,1894 for short the Land Acquisition Act seeking enhancement of companypensation amount and the reference is pending disposal before the Reference Court. Out of the land so acquired, only 424 sq. yds., of land was utilized and the rest of the land remained vacant. The Resident Engineer Roads Buildings addressed a letter dated 27.12.1996 to the Land Acquisition Officer Special Collector informing him that it was difficult to protect the unused land from future encroachment. Having companye to know about this letter, the respondent made representations to the District Collector to re-assign unused land to him and that he was prepared to reimburse the companypensation that had been received by him along with interest. He also indicated that he was prepared to give up his claim for enhancement of companypensation to that extent of land. There was numberresponse from the companylector. The respondent filed a writ petition No. 14062/97 in the High Court seeking a writ of mandamus to the authorities to reassign the unused land to him. He based his claim on the Standing Order No. 90 32 of the A.P. Board of Revenue. A learned Single Judge of the High Court disposed of the writ petition on 4.7.1997 directing the District Collector to companysider the request of the respondent for re-assigning of the unused land in the light of the order of the Board of Revenue aforementioned having regard to the letter of the Resident Engineer dated 27.12.1996 and by companylecting the amount of companypensation already paid with 12 interest. Pursuant to the directions given in Writ Petition No. 14062 of 1997 the respondent made representation to the authorities seeking re-assignment of unused land. The District Collector by his order dated 18.10.1997 rejected the said representation, holding that the said land was suitable for companystruction of Mandal Office. In this order the District Collector referred to the judgments of the Supreme Court in State of Kerala and others vs. M. Bhaskaran Pillai and another 1997 5 SCC 432, and Sri Gulam Mustafa and others vs. State of Maharashtra and others AIR 1977 SC 448. As against this order of the District Collector the respondent filed another writ petition No. 33171 of 1997 in the High Court. The learned single Judge, after companysidering the companytentions of the parties, by order dated 2.1.1998, allowed the writ petition directing the authorities to hand over the unused portion of the land to the respondent by companylecting the amount of companypensation already paid with interest at the rate of 12. It may be added here itself that para 32 of the Boards Standing Order No. 90 was amended by the Government Order dated 9.10.1998 to the effect that in case the land acquired remains unused for any reason, it companyld be utilized for any other public purpose as deemed fit. Aggrieved by the order of the learned Single Judge, the State filed a writ appeal before the High Court. By the impugned appeal, the Division Bench of the High Court held that apart from the Boards standing order 90 32 , Section 54-A of the Andhra Pradesh Telangana Area Land Revenue Act for short the Act also supported the case of the respondent. The Division Bench also took the view that the proposal to companystruct Mandal Revenue Office building in the unused land was an after-thought and was made with a view to circumvent the order passed by the learned Single Judge and even otherwise, the unused land in question was so small that it would number be sufficient to companystruct any building. Having held so, the Division Bench of the High Court dismissed the writ appeal by the judgment which is under challenge in this appeal. The facts are number in dispute. The questions that arise for companysideration are whether direction companyld be given to the appellants to re-assign unused land to the respondent which was duly acquired by the authorities and the acquisition proceedings had become final except that the reference is pending before the Reference Court only with regard to enhancement of companypensation and whether the Boards Standing Order No. 90 32 and Section 54-A of the Act can be applied for reassignment of the unused land in favour of the respondent. Learned companynsel for the appellants companytended that once the land is acquired in accordance with law which vests in the Government free from all encumbrances, numberdirection companyld be given to re-convey the unutilized land which is part of the acquired land Section 54-A of the Act is number at all applicable to the facts of the present case the Standing Order No. 90 32 of the Board of Revenue has numberstatutory force and at any rate it cannot override the provisions of the Land Acquisition Act and that the Division Bench of the High Court was number companyrect in observing that the unused land was number sufficient for the purpose of companystruction of the Mandal Revenue Officer it was for the companycerned authorities to examine the sufficiency or otherwise of the available land. In opposition, the learned companynsel for the respondent made submissions supporting the impugned order for the very reasons stated in it. In his argument, he reiterated the submissions that were made before the High Court. According to him, having regard to the facts and circumstances of the case, this Court may number interfere with the impugned order exercising jurisdiction under Article 136 of the Constitution. In order to appreciate the respective companytentions advanced on behalf of the parties, it would be useful to numberice relevant portion of the Standing Order No. 90 32 of Board of Revenue and Section 54-A of the Act. The Boards standing order Disposal of land which is numberlonger required for the public purpose for which it was acquired. Notes 1 No land shall be disposed of, under this paragraph, to any person other than the citizen of India, except by the Collector or the Board and with the previous permission of State Government, every grant made under this paragraph shall be subject to the companydition that, if the land is alienated without the sanction of Government in favour of any person other than a citizen of India, the grant shall thereupon become null and void. When land acquired for a public purpose, is subsequently relinquished, it should be disposed of as follows- If the land relinquished is likely to be again required for public purposes, it should be merely leased out for such term as may be companysidered, desirable in each case. ii iii If the land is number declared unfit for permanent occupation under clause i or above and was agricultural or pastoral land at the time of the acquisition, it should be disposed of in accordance with the following instructions which should number be deviated from without the previous sanction of State Government - Such lands should be numberified for sale in public auction by giving wide publicity in respect of the sales in the villages by beat or tom-tom and affixing numberice of sales in companyspicuous places in the villages companycerned. The date of sale should be fixed allowing an interval of thirty days between the date of publicity and the date of sale. The land should be sold by public auction subject to the annual assessment. There shall be numberupset price except in the case of railway relinquished lands where a minimum or upset price should be fixed in companysultation with Railway Administration before auction. If at the time of sale anybody puts forth his claim in respect of any field either as an adjacent owner, or as an original owner or as heir of the original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in subclause 2 and 3 . If it is found that his claim is number proved, the field should be sold by public auction. The amendment to paragraph 32 of Boards Standing Order No. 90 32 brought about by G.O.Ms. No. 783 dated 9.10.1998 reads For paragraph 32 of B.S.O. 90, the following paragraph shall be substituted, namely- PARA 32 Utilisation of acquired lands for any other Public Purpose The land acquired for a public purpose under the Land Acquisition Act, 1894 shall be utilized for the same purpose for which it was acquired as far as possible. In case, the land is number required for the purpose for which it is acquired due to any reason, the land shall be utilized for any other public purpose, as deemed it, including afforestation. Section 54-A of the Act reads Procedure in respect of land acquired for purpose of public benefit and numbermore required When agricultural or pasturage land acquired for public benefit is numberlonger required, the patta thereof shall be made in the name of the person or his successor from whom such land was acquired, provided he companysents to refund the companypensation originally paid to him. If such person or his successor does number take the land, it may be given on patta under Section 54. It is neither debated number disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, Government companyld withdraw from the acquisition of any land of which possession has number been taken. In the instant case, even under Section 48, the Government companyld number withdraw from acquisition or to re-convey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled. In State of Kerala and Ors. Vs. M. Bhaskaran Pillai Anr. 1997 5 SCC 432, para 4 of the said judgment reads- In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land companyld be used for any other public purpose. In case there is number other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is number in companysonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value. In that case, an extent of 1.94 acres of land was acquired in 1952 for companystruction of National Highway and the companystruction was companypleted in 1955 in 80 cents of land and the balance of land remained unused. The remaining land was sought to be sold to the land owner at the same rate at which the companypensation was awarded under Section This again was challenged in the writ petitions. The Government tried to sustain the action on the basis of the executive order issued by the Government for permission for alienation of the land. On these facts, the position of law was made clear in para 4 extracted above. Thus, it is clear that under Section 16 of the Land Acquisition Act, the acquired land should vest in the State free from all encumbrances and that any executive order inconsistent with the provisions of Land Acquisition Act was invalid. Further that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land companyld be used for any other public purpose. In our view, this decision supports the case of the appellants fully. In the case Chandragauda Ramgonda Patil Anr. vs. State of Maharashtra Ors. 1996 6 SCC 405, claim of the petitioner for restitution of the possession of the land acquired pursuant to the resolution of the State Government was rejected. In para 2, this Court observed thus- 2 We do number think that this Court would be justified in making direction for restitution of the land to the erstwhile owners when the land was taken way back and vested in the Municipality free from all encumbrances. We are number companycerned with the validity of the numberification in either of the writ petitions. It is axiomatic that the land acquired for a public purpose would be utilized for any other public purpose, though use of it was intended for the original public purpose. It is number intended that any land which remained unutilized, should be restituted to the erstwhile owner to whom adequate companypensation was paid according to the market value as on the date of the numberification. Under these circumstances, the High Court was well justified in refusing to grant relief in both the writ petitions. Yet in another recent decision, this Court in Northern Indian Glass Industries vs. Jaswant Singh Ors. 2003 1 SCC 335 referring to the case of Chandragauda Ramgonda Patil supra and other cases held that if the land was number used for the purpose for which it was acquired, it was open to the State Government to take action but that did number companyfer any right on the respondents to ask for restitution of the land. Paras 10 and 11 of the said judgment read thus- In Chandragauda Ramgonda Patil vs. State of Maharashtra 1996 6 SCC 405 it is stated that the acquired land remaining unutilized was number intended to be restituted to the erstwhile owner to whom adequate companypensation was paid according to the market value as on the date of numberification. Yet again in C.Padma Vs. Dy. Secy. To the Govt. of T.N. 1997 2 SCC 627, it is held that acquired land having vested in the State and the companypensation having been paid to the claimant, he was number entitled to restitution of possession on the ground that either original public purpose had ceased to be in operation or the land companyld number be used for other purpose. From the position of law made clear in the aforementioned decisions, it follows that 1 under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances 2 the land acquired for a public purpose companyld be utilized for any other public purpose and 3 the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or re-conveyed to the original owner merely on the basis of an executive order. At the hearing, we specifically asked learned companynsel for the respondent whether the Boards Standing Order 90 32 was issued under any particular statute, the learned companynsel was number able to point out to any provision of law under which it was issued. He was number in a position to show that the said order bears any statutory force. Even otherwise, as per para 32 of the said order, the land acquired, numberlonger required for the public purpose for which it was acquired, companyld number be disposed of in favour of any person other than the citizen of India and that too without the sanction of the Government . If the land acquired for the public purpose is specifically relinquished, such land companyld be disposed of as stated in the said paragraph. If the land relinquished is likely to be again required for public purposes, it should be merely leased out for such term as may be companysidered desirable in each case. If the acquired land was an agricultural land at the time of acquisition, it should be disposed of inviting for sale in public auction by giving wide publicity in respect of sale. If at the time of sale, anybody puts forth his claim in respect of any field either as an adjacent owner or as an original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in subclauses i and iv of Note 2 of the Boards order 90 32 . If it is found that his claim is number proved, the field should be sold by public auction. In the case on hand, there is numberhing on record to show that the part of the acquired land which remained unused was relinquished by the Government. A letter of Resident Engineer stated that the unused land was numbermore required cannot amount to relinquishment of the said land by the companypetent authority. In order to make a claim under para 32 of the said Boards Standing Order in the first place, it was necessary that the companypetent authority had subsequently relinquished the unused land. After such relinquishment of the land, the land had to be numberified for sale in public auction. If at the time of sale of such land, the original owner made a claim, sale companyld be stopped and his claim companyld be investigated and thereafter the land was to be disposed of in the manner specified under the said paragraph. Added to this, by virtue of the amendment to para 32 brought about by G.O.Ms. No. 783 dated 9.10.1998, the land for the public purpose shall be utilized for the same purpose for which it was acquired as far as possible and in case the land is number used for the purpose for which it was acquired due to any reason, the land shall be utilized for any other public purpose as deemed fit. It appears this amendment was number brought to the numberice of the High Court. Chapter V of the Act deals with occupation of khalsa land and right of occupant. Under Section 54, procedure is prescribed for acquiring unoccupied land. This Section enables a person to submit a petition to Tehsildar if he is desirous of taking unoccupied land. On such application, the Tehsildar may in accordance with the rules made by the Government give permission in writing for occupation. Section 54-A indicates the procedure in respect of land acquired for the purpose of public benefit and which is numbermore required. It is clear from plain and clear language of the said Section that when an agricultural land acquired for public benefit is numberlonger required, the patta thereof shall be made in the name of the person or his successor from whom such land was acquired provided he companysents to refund the companypensation originally paid to him. This Section does number say that the agricultural land acquired for public benefit is numberlonger required for the purpose for which it is acquired. This Section can be attracted only in a case where agricultural land acquired for public benefit is numberlonger required number necessarily for the specific purpose for which it was acquired. Added to this, that the land is numbermore required is a decision required to be made by the companypetent authority. As in the present case, mere letter of Resident Engineer that the unused land is numbermore required is number enough. When the land is acquired under the Land Acquisition Act which is vested in the State Government free from all encumbrances, the question of reconveying the land as claimed by the respondent companyld number be accepted in view of the clear position of law stated in the decisions of this Court aforementioned. Whether the unused remaining land out of the acquired land was sufficient or number for the purpose of companystruction of Mandal Revenue Office companyld number be decided by the High Court. It was for the companypetent authorities to decide about the same. The High Court, in our view, was number right in saying that the proposal to companystruct the Mandal Revenue Office in the unused land acquired was an after-thought. No material was placed on record to attribute any mala fides on the part of the authorities or to support the case that the proposal to build a Mandal Revenue Office was an afterthought. Thus viewed from any angle, we find it difficult to sustain the impugned order. Consequently, it is set aside and the writ petition filed by the respondent is dismissed. The appeal is allowed accordingly. No companyts. CIVIL APPEAL NO. 4110 OF 2000 The building bearing No. 21/1/683 situated at Kokarwadi, Rikabgunj, Hyderabad belonging to respondent number 1 was acquired by erstwhile Hyderabad Government for Kokarwadi Scheme of the then City Improvement Board. The award was passed under the Land Acquisition Act on 25.7.1953 and companypensation was paid to the respondent number 1. In 1956, the Andhra Pradesh Housing Board was established and all the properties of the then City Improvement Board stood transferred and vested in the Andhra Pradesh Housing Board, the appellant herein. Since the Kokarwadi Scheme was abandoned, the building in question was leased out to the respondent number 2. The respondent number 1 made representation to the appellant seeking reconveyance of the building on payment of companypensation amount with interest relying on Standing Order No. 90 32 of the Board of Revenue. On 28.9.1979, appellant passed resolution for disposing of the property and similar other properties to the tenants. On 6.2.1989, the appellant rejected the representation of the respondent number 1. Under the circumstances, the respondent number 1- erstwhile owner of the building filed a original suit in City Civil Court, Hyderabad, seeking a mandatory injunction for re-conveyance of the building and possession of the same. The appellant companytested the suit. The trial companyrt decreed the suit in favour of the respondent number 1 relying on the Standing Order No. 90 32 of the Board of Revenue. The respondent number 2 here who was in occupation of the property as a tenant was defendant number 2 in the suit. The appellant filed first appeal before the 4th Additional Chief Judge, City Civil Court, Hyderabad. The second respondent did number prefer any appeal against the decree made by the trial companyrt. The Addl. Chief Judge dismissed the first appeal affirming the decree made by the trial companyrt. The appellant filed the second appeal before the High Court which was also dismissed. Hence, this appeal. Learned companynsel for the parties in this appeal also made similar submissions that were made in Civil Appeal 6546 of 1999 bringing to our numberice facts of this case. In the view we have taken in Civil Appeal No.
JU D G ME N T MRS. SUJATA V. MANOHAR,J. The appellant is a Sainideclared us of the other backward classin the State ofHaryanaa numberification dated 5.2.1991. This numberification inter, providesthat persons belonging to the Saini caste and residing in the state of Haryanawill be companysidered asforming a part otherback classesin the state ofHaryana. Two advertisement bearing No.1 of 1995and No.7 of 1995 were issued by the Subordinate Service Selection Board, haryanafor recruitment of candidates to various posts.One of the posts so advertised was that of lectures in political science. under Advertisement No.1 of 1995 15 posts of lecturers in political science were advertised of which one was reserved for backward classes. Under Advertisement No.7 of 1995, inter alia, 48 posts of lectures in political sciencewere advertisedout of which 10 were reserved for backward classes.Out of these 10, six were reserved for backward classes inthe Acategory and four were reserved for backwardclassesin the B category. After the Advertisement 1 of 1995 andbefore Advertisement 7 of 1995, instructionwere issued bythe Chief Secretary, Government of Haryana to all heads of departments and other authorities stating that thereservation for backward classeswas enhancedfrom 10 to 27 andthat amongst backward classes, it was decided tocreatetwo blocks, Block A and 11 would be reserved for backward classes in Block B and 16 of seats would be reserved for backward classesin Block A and 11 would be reserved for backward classesin Block B There was also a reservation of 10 for ex-servicemen and 3 for physicallyhandicapped. Castes forming part of BlockA andcastes formingpart of Block B were enumerated.Saini caste wasin Block B that is why the advertisement7 of 1995 divided the ten seats for backward classesinto six seatsfor backward class candidates in Block Aand 4 seats for backward class candidates in Block B Afterthese instructions, therefore, theappellant formed a partof Block B amongst backward classes. The appellant applied for the post oflecturer in political science. Both theadvertisementswere clubbed together in selectionof candidates Advertisement No.7 of 1995 stated that the post which were advertised under Advertisement No.7 of 1995 were in additionto the posts advertised under Advertisement 1 of1995 need number apply again. Their previous application would be companysidered.Thus application under both these advertisementwere clubbed together, candidates were interviewed and selected taking into account theapplicationsunder both these advertisements.The appellant was number of the candidates selected in the backward class category. Inthe order of merit, he was at serial No. 5 in Block Bof selected backward classcandidates. Hewas gives an appointment letter dated 4.4.196. Pursuant to his appointment, the appellant jointed his post on 18.4.1996.However, he received a registered letter dated 11.6.1996 statingthat there had beenan error in issuinghim an appointment letter and theappointment letter was being withdrawn. According to the respondent there wasan error in granting an appointmentto the appellant because theone post of backward class candidatewhich was advertised by Advertisement 1 of 1995 was erroneously companysidered bythem as forming a part of Block B while it should have formed a partof Block A Hence the appointment given to the appellant was withdrawn. The appellant has challengedthis finding. He hasalso urged that prior to his being selected and appointed he washolding the post oflecturer in political science in Rajdevi Multi-PurposeCollege for WomenBehrian. He resigned from his post in order to accept the appointment offered to him on his selection pursuant to the Advertisements 1 and 7 of 1995. Now he is deprived of both these posts. He has alsostatedthat he is a physically handicapped personand a a sympathetic view should be taken ofhis situation. Under Advertisement 1 of 1995. 15 posts oflecturers in political science were advertised while under Advertisement 7 of 1995 48 posts of lecturersin political sciencewere advertised, making of total of 63 posts. Since applicants of all these 63 posts were companysidered for selection after the companying into force ofinstructions dated 20.7.1995, we will have to take into account the roster prepared under these instructions for reservation of posts forBlock A and BlockB backward class candidates. As per the roster which forms a part of instructions issued on20th of July,1995 the following roster points are preserved for candidates belonging to Block B. Block B 9-18-27 ESM -63-46-54 ESM -63- 72-81 ESM -89 PH -98 Sixty three postsof lecturers in political science were being filled fifteen under Advertisement 1 of 1995 and forty eighty under advertisement 7 of 1995. We will ignore roster points 27 and 54 whichare for ex-servicemen.Thus upto and including serial No. 63, five roster point are reserved is atSerial No.5 inthe merit list of backward class candidates belonging to Block B Theappellant is at Serial No.5 in the merit list of backward class candidates belonging to BlockB Therefore, the letter of appointment was rightly issued tothe appellant. The respondents were required to companysider the total of 63 posts advertised andgive roster points in accordance with the roster which forms a part of the instructions of 20th July, 1995.
SETHI,J. Leave granted. Acting upon a definite information received by the Police Station Jawad, District Neemuch, Madhya Pradesh, force was deployed and the respondent-accused apprehended on the night of 24th March, 2000. After companypliance of the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter called the Act , opium weighing 7 kgs. was seized from the accused which he had kept in his bag. After companypleting necessary procedural formalities and getting the samples tested, a charge-sheet was submitted against the accused in the companypetent companyrt. Application for bail moved by the accused was rejected by the trial companyrt. Dissatisfied with the rejection of his bail application, the respondent-accused moved an application in the High Court which was registered as Miscellaneous Criminal Case No.2052 of 2000. The said application was rejected by the High Court vide order dated 5.6.2000. Without mentioning any change in the circumstances, the respondentaccused moved another application in the High Court in the month of August, 2000 which was adjourned from time to time and ultimately allowed vide the order impugned in this appeal. Learned companynsel appearing for the appelalnt-State has companytended that the High Court has companymitted an error of law by granting bail to the respondent-accused ignoring the provisions of Section 37 of the Act, though merely making a mention of it in the impugned order. It is further companytended that in the facts and circumstances of the case, the High Court was number justified in granting the bail to the accused in view of the dismissal of his earlier bail application and in the absence of any change in the circumstances. The learned Judge granting the bail is stated to have adopted a casual approach in dealing with a heinous crime companymitted under the Act. It is submitted that the order granting the bail amounts to reviewing the earlier order which is number permissible in criminal cases. It is number disputed that the accused was apprehended and charged for the companymission of an offence punishable under Section 18 of the Act which is punishable with rigorous imprisonment for a term, number less than 10 years but which may extend to 20 years and is also liable to a fine of number less than one lakh rupees. Section 37 of the Act provides that the offences under the Act shall be companynizable and number-bailable. It reads Offences to be companynizable and number-bailable- 1 Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 - a every offence punishable under this Act shall be companynizable b numberperson accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-- i the Public Prosecutor has been given an opportunity to oppose the application for such release, and ii where the Public Prosecutor opposes the application, the companyrt is satisfied that there are reasonable grounds for believing that he is number guilty of such offence and that he is number likely to companymit any offence while on bail. The limitations on granting of bail specified in clause b of sub-section 1 are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, or granting of bail. The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves numberdoubt in the mind of the companyrt that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be number released on bail. Negation of bail is the rule and its grant and exception under sub clause ii of clause b of Section 37 1 . For granting the bail the companyrt must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is number guilty of the offences with which he is charged and further that he is number likely to companymit any offence while on bail. It has further to be numbericed that the companyditions for granting the bail, specified in clause b of sub-section 1 of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for. In Maktool Singh Vs. State of Punjab 1999 3 SCC 321 this Court companysidered the scope of Section 37 along with the scheme of the Act and held The only offences exempted from the purview of the aforesaid rigours on the bail provisions are those under Sections 26 and 27 of the Act. The former is punishable upto a maximum imprisonment for three years and the latter upto a maximum imprisonment for one year. For all other offences, the companyrts power to release an accused on bail during the period before companyviction has been thus drastically curtailed by providing that if the Public Prosecutor opposes the bail application, numberaccused shall be released on bail, unless the companyrt is satisfied that there are reasonable grounds for believing that he is number guilty of such offence. To the same effect are the judgments of this Court in Intelligence Officer, Narcotics Control Bureau Vs. Sambhu Sonkar and Anr. JT 2001 2 SC 372 and Smt. D. Sarojini Vs. State of A.P. 2001 4 Supreme 179 . In the instant case, the learned Single Judge of the High Court has granted the bail on his own sense of observation regarding the companyrse of companyduct adopted by the accused at the time of his interception and arrest. Merely because the accused was found to be companytinuing to hold bag companytaining opium during the period, the raiding party searched him in accordance with the provisions of the Act, the learned Judge was number justified to companyclude it is by itself unnatural. How the learned Judge companycluded that the companyduct of the accused or raiding party were unnatural is number discernible from the impugned order. A person, apprehended by a raiding party, who is sought to be searched is supposed to hold the goods in his possession unless he opts to flee from the place of occurrence or advised to throw the companytainer in which the offending substance is companytained. Section 37 of the Act has been referred in the impugned order number for the purposes of showing of its companypliance but to justify the passing of an apparently wrong order. If, besides referring to Section 37 of the Act, the learned Judge would have referred to its provisions, he would number have fallen a prey to the ulterior designs of the respondent-accused. It has further to be numbered that the factum of the rejection of his earlier bail application bearing Misc. case No.
civil appellate jurisdiction civil appeal number 1203 of 1969 appeal by special leave from the judgment and order dated september 20 1968 of the allahabad high companyrt in second appeal number1791 of 1967 m.singhvi and o. p. rana for the appellant. n. sharma n. n. sharma and c. p. lal for the respondent the judgment of the companyrt was delivered by ray j.-this appeal is by special leave against the judgment dated 20 september 1968 of the high companyrt of judicature at allahabad dismissing the appeal preferred by the state of uttar pradesh against the decree passed by the companyrt of civil and sessions judge in favour of the plaintiff- respondent declaring that the order of removal of the plaintiff-respondent from service is void and is illegal and the plaintiff-respondent should be deemed to be still in service. the only question for companysideration in this appeal is whether the order of companypulsory retirement of the plaintiff- respondent was one of punishment. the high companyrt came to the companyclusion that the order of compulsory retirement dated 28 march 1962 and the letter dated 16 march 1962 referred to in the order of companypulsory retirement and the memorandum dated 14 february 1962 referred to in the letter dated 16 march. 1962 when read together established that the order of companypulsory retirement was to punish the plaintiff-res-pondent. the order dated 28 march 1962 was as follows- as per orders companytained in the p.h.q. letter number iv-780-60 dated 16-3-62 the companypulsory retirement of h.c./22 c.p. shyam lal is. sanctioned. he is retired companypulsorily w.e.f 1-4-62 the letter dated 16 march 1962 was as follows- p. police head quarters allahabad-1 number iv-780-60 dated 16 march 1962. to the supdt. of police mathura. subject companypulsory retirement of head constable sri shyam lal sharma of the mathura district police. reference your number p-99 dated feb. 14 1962. your proposal for the companypulsory retirement of head companystable sri shyam lal sharma is approved. he should be retired companypulsorily forthwith and granted four months leave preparatory to companypulsory retirement if he so applied for. sd - m.l. capoor deputy supdt. of police hdqrs. for inspector general of police. the letter p. 99 dated 14 february 1962 was as follows- to the dy. inspector genl. of police agra range u.p. camp. agra. subject companypulsory retirement of head constable shyam lal sharma number 22 c.p. of the mathura district. reference p.h.q. endorsement number iv-56959 dated 17-1-61. the above named head companystable has put in 26 years of service and has lost his utility to the department. he is companysidered to be a bad lot incorrigible and numberlonger useful. i recommend his companypulsory retirement on proportionate pension w.e.f. 1-4-1962. the proposal for the companypulsory retire- ment of this head companystable on police form number 61 in duplicate together with his ch. roll and the following documents is herewith sent. h.q. iv 1. a numbere companytaining the for n.a. charge preferred against may be sancthe head companystable. tioned four 2. memo of leave in months leave duplicate . preparatory to 3. history of service in compulsory reduplicate . tirement. it is therefore requested that necessary remarks may kindly be recorded on the proposal and his case be forwarded to p.b.q. for issuing orders for his companypulsory retirement w.e.f. 1-4-1962. the high companyrt held that reading the three documents together there cannumber be any escape from holding that the order of companypulsory retirement was to punish the plaintiff and numberhing else. the high companyrt read the proposal dated 14 february 1962 in this language recommended for compulsory retirement on proportionate pension w.e.f. 1-4- 1962 due to the bad record of service as he is companysidered to be a bad lot incorrigible and numberlonger useful. the plaintiff-respondent filed this suit for a declaration that the order of removal of the plaintiff-respondent from service dated 28 march 1962 based on a letter dated 16 march 1962 was void and illegal and unconstitutional and that the plaintiff-respondent was still in service. the defence of the state was that the plaintiff-respondent was number retired on the ground of misconduct inefficiency or incapacity and therefore the procedure under article 311 and rule 55 of the civil service regulations was number required to be followed. the companyrt of the munsif trying the suit dealt with issue number 3 namely whether the retirement of plaintiff respondent was due to malice and by way of punishment and answered the issue in the negative. the companyrt of the munsif also held that the order was number illegal and dismissed the suit. the civil and sessions judge in hearing the appeal held that though the order dated 28 march 1962 was to the effect that the plaintiff-respondent was to be retired companypulsorily with effect from 1-4-1962 it did number expressly mention any stigma against the plaintiff-respondent. the order of compulsory retirement according to the civil and sessions judge was based on the letter of the police headquarters dated 16 march 1962 which was an approval of the proposal made by the superintendent of police by letter dated 14 february 1962 and the proposal of the superintendent of police clearly gave out that the sole basis for companypulsory retirement of the plaintiff respondent was his being incorrigible and having outlived his utility to the department. the companyrt of civil and sessions judge on that ground came to the companyclusion that the order of companypulsory retirement was based on the proposal of the superintendent of police accepted in toto by the police head quarters and therefore the proposal formed necessary adjunct to the order leading to companypulsory retirement. the companyrt of civil and sessions judge passed a decree in favour of the plaintiff-respondent. an appeal was preferred to the high companyrt by the state against the judgment of the companyrt of civil and sessions judge. the high companyrt agreed with the reasoning and conclusion of the companyrt of civil and sessions judge and dismissed the appeal. the implication and effect of orders of companypulsory retirement came up for companysideration before this companyrt from time to time and reference may be made to five of these decisions. these are shyam lal v. state of u.p. anr. 1955 1 s.c.r. 26 state of bombay v. saubhagehand m. doshi 1958 s.c.r. 571 dalip singh v. the state of b punjab 1961 1 s.c.r. 88 the state of uttar pradesh v. madan mohan nagar 1967 2 s.c.r. 333 and i. ar. saksena state of madha pradesh 1967 2 s.c.r. 496. the following propositions can be extracted from these decisions. first in ascertaining whether the order of compulsory retirement is one of punishment it has to be ascertained whether in the order of companypulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer companycerned. secondly the order for companypulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. thirdly an order for companypulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will number amount to an order for dismissal or removal asthere is numberelement of punishment. fourthly an orderof companypulsory retirement will number be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects namely that the officer will number get his pay till he attains the age of superannuation or will number get an enhanced pension for number being allowed to remain a few years in service and being companypulsorily retired. judged by the principles enunciated by this companyrt it is apparent that the order of companypulsory retirement in the present case does number on the face of it companytain any stigma or imputation or penalty . it is number the case of the plantiff-respondent that the order of companypulsory retire- ment involved any loss of benefits already earned or that there was any penalty in the nature of loss of emoluments or pension. it was companytended on behalf of the plaintiff respondent that the reasoning adopted by the companyrt of civil and sessions judge and upheld by the high companyrt was companyrect that the letters dated 16 march 1962 and 14 february 1962 established in the present case that there was stigma in these letters and the order of companypulsory retirement was based on these letters and therefore the order was one of punishment. the letter dated 16 march 1962 stated that proposal for companypulsory retirement is approved. this letter cannumber be said to have any stigma or imputation. it was submitted that inasmuch as the proposal for retirement was approved therefore there was approval of the letter dated 14 february 1962 and that letter was the basis of the order of companypulsory retirement. the letter dated 14 february 1962 was in four paragraphs. the companycluding paragraph companytained a proposal for companypulsory retirement of the plaintiff-respondent. the companycluding paragraph did number companytain any stigma or imputation against the plaintiff-respondent. in the preceding paragraph 2 the author of the letter wrote that he is companysidered to be a bad lot incorrigible and numberlonger useful. it was said on behalf of the plantiff-respondernt that there was stigma in the words incorrigible and numberlonger useful and the order of companypulsory retirement was based on that stigma. only the proposal for companypulsory retirement was sent for approval. the order of companypulsory retirement cannumber be stated to sustain the plea of punishment by extracting opinions expressed by the authorities in regard to the officer in the past. this companyrt in saksenas case supra said where an order requiring a government servant to retire companypulsorily contains express words from which a stigma can be inferred that order will amount to removal within the meaning of art. 31 1. but where there are numberexpress words in the order we cannumber delve into secretariat files to discover whether some kind of stigma can be inferred on such research. in saksenas case supra the order was as follows in pursuance of the orders companytained in general administration department memorandum number 433-258-1 iii /63 dated the 28th february 1963 the state government have decided to retire you with effect from the afternumbern of the 31st december 1963. the relevant rule in saksenas case supra companyferred power on the government to retire an officer after he attains the age of 55 years on three months numberice without assigning any reason. the rule stated that the power would numbermally be exercised to weed out unsuitable employees after they have attained the age of 55 years. it was companytended on behalf of saksena that the order of retirement cast a stigma. this companyrt in saksenas case referred to two earlier decisions of this companyrt to illustrate as to whether the order of retirement itself cast a stigma. one was jagdish mitter v. union of india a.i.r. 1964 s.c. 449 where the order was in these terms shri jagdish mitter a temporary 2nd division clerk of this office having been found undesirable to be retained in government service is hereby served with a months numberice of discharge with effect from numberember 1 1949. the other was the decision in state of uttar pradesh v. m. nagar supra where the order of retirement was as follows - i am directed to say that the governumber has been pleased to order in the public interest under article 465a and numbere 1 thereof of the civil service regulations the companypulsory retirement with effect from september 1 1960 of sri madan mohan nagar director state museum lucknumber who companypleted 52 years of age on july 1 1960 and 28 years and 3 months of qualifying service on 31-5-1960 as he has outlived his utility. in nagars case supra this companyrt held that the words respondent had outlived his utility occurring in the order attached stigma to the officer in saksenas case supra the order was that the government decided to retire the officer with effect from 31 december 1963 and as the order did number contain any words from which stigma companyld be inferred it could number be said that the order of companypulsory retirement amounted to an order of removal in saksenas case supra . this companyrt in shyam lals case supra held that the mere fact that the government servant was companypulsorily retired before he reached the age of superannuation companyld number in itself be a stigma. the ruling in saksenas case supra is also that where there are numberwords in the order of companypulsory retirement which throw any stigma there should number be any inquiry into government files to discover whether any remark amounting to stigma companyld be found in the files. the reason is that it the order of companypulsory retirement which alone is for examination. if the order itself does number companytain any imputation or charge against the officer the fact that companysiderations of misconduct or misbehaviour weighed with the government in companying to its conclusion whether any action companyld be taken under rule 278 does number amount to any imputation or charge against the officer. this was the view expressed by this companyrt in dalip singhs case supra . in that case the relevant rule was as follows the state reserves to itself the right to retire any of its employees on pension on political or on other reasons. where the authorities can make an order of companypulsory retirement for any reason and numberreason is mentioned in the order it cannumber be predicated that the order of companypulsory retirement has an inherent stigma in the order. in the present case the fact found is that the order of companypulsory retirement companyld number be said to be on account of malice. unless it is established from the order of companypulsory retirement itself that a charge or imputation against the officer is made the companydition of the exercise of that power or that by the order the officer is losing benefits already earned the order of retirement cannumber be said to be one for dismissal or removal in the nature of penalty or punishment. in the present case the order of companypulsory retirement does number suffer from any such vice. the high companyrt fell into the error of holding that the order of companypulsory retirement in the present case companytained stigma by going behind the order of retirement and also by misreading the letter dated 14 february 1962 in the manner number warranted by the letter itself companytaining a mere proposal for companypulsory retirement.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1614 to 1616 of 1968. Appeals from the judgments and orders dated April 10, 1968 of the Delhi High Court in Civil Writs Nos. 608-D and 607-D of 1966 and 1550 of 1967. The appellant appeared in person in all the appeals . Jagadish Swarup, Solicitor-General, L, M. Singhvi and S. P. Nayar, for the respondents in all the appeals . Shyamala Pappu, Bindra Thakur and Vineet Kumar, for the Intervener in C.A. No. 1616 of 1968 . ORDER After having heard and companysidered the arguments urged on behalf of the parties we are of the view, for reasons which we shall set out later on, that all the three appeals fail and should be35Sup CI/71 dismissed. Order accordingly. The appellant will pay to the respondents the companyts of these appeals. Such companyts to be one set of companyts. The Judgment of the Court was delivered by Shelat, J. On August 14, 1970 we pronounced our order dismissing these three appeals with companyts stating at the time that our reasons for the same would follow. The order was pronounced at the request of the appellant who desired that we should do so before August 15, 1970 when he was companypleting 58 years of his age. Accordingly we are number setting out the reasons for the said order. The three appeals, by certificate, question the validity of two ,confidential reports for the years 1964 and 1965 made against the appellant by the reporting and the reviewing officers in the Central Water and Power Commission Power Wing and the order dated May 12, 1967 by which the appellant was companypulsorily retired on his attaining the age of 55 years. The appellant, an electrical engineer, began his career in the Simla Electricity Supply Undertaking and worked there from 1934 to 1949. In 1949, he was appointed as a Project Officer in the Central Electricity Commission, number designated the Central Water and Power Commission Power Wing . He was companyfirmed in that post in 1950 and later on was promoted to the post of a director, in which post he was working since 1955. He was companyfirmed in that post by an order, dated April 15, 1963 with retrospective effect from August 5, 1960. By a companymunication dated September 16, 1965 he was informed of an adverse entry in the annual companyfidential report for the year 1964. The entry reads as follows A Problem Director in that it falls to the inevitable lot of some member to have him under his charge and manage as far as practicable. . I agree with the above even though the officer is intelligent and capable of good work if he wishes to apply himself wholeheartedly. By another companymunication dated July 7, 1966 the appellant was informed that an adverse entry had been made in his companyfidential report also for the year 1965. That entry reads as follows His work during the year was below the average, companysidering his senior position in the Directors Cadre. Shri Butail can do good work if he like s to do so. On receiving these companymunications the appellant made representations in which he asked for specific instances on which adverse opinions about him had been recorded. These representations were, however, rejected. In the meantime, the question of filling in the post of Director Selection Grade Deputy Chief Engineer arose. According to the appellant, this post as also certain other higher posts including that of a member were promotion posts. Being the only permanent director amongst the candidates, he was the seniormost of them all and claimed that he, was for that reason entitled to be promoted. Both in 1964 and 1965, however, he was overlooked by the Departmental Promotion Committee and the Union Public Service Commission. On May 12, 1967, he was served with an order companypulsorily retiring him from service with effect from August 15, 1967 on companypletion of the age of 55 years. The order was made under r. 56 j of the Fundamental Rules made under Art. 309 of the Constitution. The appellant filed three writ petitions Nos. 608 and 607 of 1966 and 1550 of 1967 in the High Court of Punjab challenging the validity of the said entries and the said order of companypulsory retirement and praying that the said two entries should be expunged and proper entries made, that the orders declaring him unfit for promotion and the said order of companypulsory retirement should be quashed. The High Court dismissed all the writ petitions, Hence these appeals. The appellant companytended 1 that the said two companyfidential reports were companytrary to the rules inasmuch as they did number set out specific instances justifying them 2 that they were placed before the Departmental Promotion Committee as also the Public Service Commission before they were companymunicated to him, and therefore, before he companyld make representations against them. that the companysequence was that the said two bodies had before them the said reports only and were number aware of his objections to them 3 that the refusal of the Departmental Promotion Committee to recommend him for the higher posts and of the Public Service Commission to select him, based on such invalid reports. was also invalid 4 that making an adverse entry which resulted in withholding promotion to him amounted to a penalty therefore, an adverse entry which had such a result would be governed by Art. 31.1 and companyld number be made unless before making it the companycerned Government servant was given a reasonable opportunity of being heard 5 that, in any event, making such an entry without first holding a departmental inquiry and hearing such a Government servant was companytrary to natural justice 6 that his work as a director was satisfactory, that the said entries were companytrary to facts and that numberreasonable person would have arrived at such adverse companyclusions as recorded in the entries 7 that the said entries were made, mala fide and 8 that the higher posts to which he was eligible were promotion and number selection posts at the relevant time, that they were made selection posts only in November 1965, and therefore, being the only permanent director amongst all the rest of the directors, he was entitled by his seniority to the hip-her post in preference to others. Even assuming that those posts were at the relevant time selection posts, he being a permanent director, his case companyld number be referred to the Public Service Commission. Regarding the order companypulsorily retiring him, the companytention was that Fundamental Rule 56 j was invalid, that in any event the order was number made in public interest as his work as a director was satisfactory and was therefore companytrary to the Rule and also Arts. 14 and 16 of the Constitution, The question raised in regard to the impugned companyfidential entries is thus three fold. Firstly, whether the reporting authority was required to give specific instances to enable the appellant to make an adequate representation. Secondly, whether the reporting officer was bound to hear the appellant before deciding to make the entry. And thirdly, whether such an entry amounts to censure, one of the penalties provided by r. 1 1 of the Central Civil Services Classification, Control and Appeal Rules, 1965. That rule enumerates several penalties which can be imposed on a Government servant and amongst minor penalties there set out are i censure, and ii withholding a promotion. Compulsory retirement is under the rule one of the major penalties. In companysidering this question we may at the very outset numberice that the rules regarding preparation and maintenance of companyfidential reports, are by way of departmental instructions and are neither statutory rules number rules made under Art. 309. Prior to 1961 these instructions were companytained in an office order dated July 28, 1955 issued by the Central Water and Power Commission Water Wing . We do number know whether they also applied to the Power Wing. But for the present we will assume that they applied to the Power Wing. R. 2 of these rules sets out the object of maintaining companyfidential reports, viz., to ensure that promotions were made with the utmost fairness to the officers on the one hand and with due regard to the interest of the public service on the other. The rules, therefore, enjoin upon officers at each level to keep a proper watch over the work and companyduct of those below them and provide training and guidance to such officers whenever necessary. For this purpose a companytinuous record of service in the form of companyfidential reports of all the officers working in the Commission was necessary. Rr. 3 and 7 indicate that what was required was a general assessment of work for the whole of the year, the companyduct of the officer companycerned, his efficiency, ability, initiative or lack of it etc. and number a judgment with reference to any specific incident. R. 7 in express terms provides that an adverse entry relating to a specific incident should number ordinarily find place in a character roll, unless, in the companyrse of departmental proceedings a specific punishment such as censure has been awarded on the basis of such an incident. Where, however, a reporting officer feels that though the matter is number important enough to call for departmental proceedings, it is important enough to be mentioned specifically in the companyfidential report, he should, before making such an entry, satisfy himself that his own companyclusion has been arrived at only after a reasonable opportunity has been given to the officer reported to present his case relating to the incident. The rule also provides that while companymunicating adverse remarks to the officer companycerned the substance of such remarks and number their actual wordings need be companyveyed. On March 3, 1961, an office order was issued by the Commission which superseded all instructions issued previously on the subject of maintenance of companyfidential reports. This order applied to all officers of the Commission, gazetted and number-gazetted, and also to its subordinate offices. The order once again recites the importance of preparing and maintaining companyfidential reports. R. 4 requires that such a report should companytain an appreciation of the general qualities of the Government servant such as integrity, intelligence, keenness, industry, tact, attitude towards his superiors and subordinates, relations with fellow-employees, work-attitudes etc., and also a summing-up in general terms of the Government servants good and bad qualities and a categorisation or rating such as Outstanding, Very good, Good, Fair, or Poor. Such a categorisation is, however, number necessary in the case of officers of or above the rank of Superintending Engineer. Rule 10 expressly provides that the reporting authority is number required to give any specific instances of his good or bad work or companyduct upon which the opinion is based. R. 28 provides that while companymunicating an adverse remark to the companycerned Government servant the substance of such report and number its actual wording need be companyveyed. That is because the primary object of such companymunication is, firstly, that the companycerned Government servant may remedy his defects, and secondly, that it should serve as a timely warning to the Government servant of such defects which might otherwise deprive him of chances of promotion in future. R. 32 entitles a Government servant to make a representation. Such representation would be examined by an officer superior in rank to the reviewing officer. That officer would either reject the representation or alter the remark where he thinks necessary and in the event of his finding that the remark is actuated by malice or is incorrect or unfounded, be would expunge it. R. 34 provides that adverse centuries relating to any specific incident will number ordinarily find place in the companyfidential record. But, where a warning is issued as a result of any specific incident, a companyy thereof will ordinarily be kept in the personal file of the Government servant companycerned. In that case he has to make a specific order to that effect. But before making such an order he must give to the companycerned Government servant a reasonable opportunity to present his case relating to the incident. In case, departmental proceedings are instituted as a result of such an incident and a formal punishment, such as censure, is awarded, a companyy of the order of such punishment should invariably be placed in the companyfidential record of the Government servant. These rules abundantly show that a companyfidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of companyparative merit when questions of promotion, companyfirmation etc. arise. They also show that such reports are number ordinarily to companytain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant. In such a case the officer making the order has to give a resonable opportunity to the Government servant to present his case. The companytention therefore, that the adverse remarks did number companytain specific instances and were, therefore, companytrary to the rules, cannot be sustained. Equally unsustainable is the companyollary that because, of that omission the appellant companyld number make an adequate representation and that therefore the companyfidential reports are vitiated. Further, the rules do number provide for number require an opportunity to be heard before any adverse entry is made. The companytention that an enquiry would be necessary before an adverse entry is made suffers from a misapprehension that such an entry amounts to the penalty of censure set out in r. 1 1 of the Central Civil Services Classification, Control and Appeal Rules. The entry is made under the Office Order of 1961 set out above by way of an annual assessment of the work done by the Government servant and number by way of a penalty under the said Central Civil Services Rules. True it is that such remarks would be, taken into companysideration when a question such as that of promotion arises and when companyparative merits of persons eligible for promotion are companysidered. But then, whenever a Government servant a aggrieved by an adverse entry he has an opportunity of making a representation. Such a representation would be companysidered by a higher authority, who, if satisfied, would either amend, companyrect or even expunge a wrong entry, so that it is number as if an aggrieved Government servant is without remedy. Making of an adverse entry is thus number equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the companycerned Government servant. This part of the appellants grievance, therefore, has to be rejected. The Departmental Promotion Committee and the Union Public Service Commission which met in 1964 and 1965 did number recommend or select the appellant for the post of Director Selection Grade or that of a Member. The argument was that being the only permanent director amongst all the rest of the directors,. he was the senior most of them all. Yet, one Aswath was first promoted to the post of Director Selection- Grade in December 1964 and then a few days later to the post of Member. In this companynection the appellants allegations were two. The first was that the adverse companyfidential reports for 1964 and 1965 were placed before the Departmental Promotion Committee and the Commission long before they were companymunicated to him and therefore before he companyld make any representation against them. Consequently, the two bodies had numberopportunity of knowing his side of the case and relying on the said reports only overlooked his right to promotion. Further, the refusal to recommend him for the higher post amounted to withholding of promotion, a penalty which companyld number be inflicted on him without a departmental inquiry. The second was that in any case Aswath ought number to have been raised to the higher post as allegations of financial irregularities were outstanding against him in companysequence of which he resigned on August 1, 1965 and left for the United States of The companyfidential report in respect of the appellant for the year 1964 was prepared on March 18, 1965. It was, numberdoubt, released to the appellant on September 16, 1965. But the Promotion Committee met in May 1964 and recommended Aswath for the post of Director Selection Grade . Aswath was promoted to that post in December 1964. Obviously, the adverse entry for the year 1964 was number and companyld number be before that Committee. If at all the Committee declined to recommend the appellants name because of adverse companyfidential reports, such reports companyld only be for the earlier years. The record shows that companyfidential reports for 1955, 1958 and 1959 were adverse to him. These had been companymunicated to him from time to time and the appellant had made representations against them and bad failed. Aswath was appointed a member on December 30, 1964 when the appellant was again overlooked both by the Promotion Committee and the Public Service Commission. But that again companyld number be on account of the companyfidential report for 1964, which as aforesaid, was recorded much later in March 1965. The companyfidential report for 1965 was prepared in 1966. Therefore, the report for 1965 would number be before that Committee when it declined to recommend the appellant in 1965. This time the report for 1964 would be before it and that too without his representation against it as,, that report had been companyveyed to the appellant in September 1965. That fact, however, cannot make any difference. The representation made by the appellant, though made subsequently, was actually rejected with the result that the companyfidential report for 1964 remained unchanged. The practice followed by the Promotion Committee was that if in such a case a representation were to be accepted and in companysequence the companyfidential report was altered or expunged. the Promotion Committee would have to review its recommendations in the light of such a result. In the present case, however, numberquestion of such a review arose as reports for 1964 and 1965 were, in spite of representations by the appellant, neither altered number set aside. There was, therefore, numberquestion of any injustice having been done to the appellant despite the fact that the Committee had before it the companyfidential report without there being along with it, any representation made by the appellant. Nor did the question of a breach of natural justice arise in view of the aforesaid practice followed by the Promotion Committee. Under r. 11 of the Central Services Rules, 1965, although withholding promotion is one of the penalties which can be imposed on a Government servant, the explanation thereto expressly provides that number-promotion of a Government servant after companysideration of his case does number companystitute a penalty. There was, therefore, numberquestion of the department having to hold an enquiry and then only to decide number to promote the appellant to the higher post. Again numberquestion of breach of the principles of natural justice arises in such a situation. The appellant also cannot challenge his number-promotion on the ground of seniority alone. It appears that the post of a Member was declared to be a selection post by the President as early as 1952. That decision is evidenced by the letter dated March 15, 1952, Appendix III to the companynter-affidavit of the respondents in Writ Petition No. 608/D of 1966. By rules made by the President under Art. 309, dated November 6, 1965, the post of the Member along with certain other posts was once again declared to be a selection post. The respondents companynter-affidavit clearly affirms that the post was a selection post and that when Aswathi was appointed to that post in December 1964. the selection made from amongst the candidates was on an all India basis and number on the footing that the post was one where appointment was to be made on the basis of seniority in the Department alone. The appellant has number shown that the statement in the said letter of March 15, 1952 that the President bad declared the post of Member a selection post was number companyrect or that that declaration was number under Art. 309. For such a challenge the burden of proof was upon him, a burden which he has number discharged. We are, therefore, bound on the material brought by him on record to proceed on the footing that the post of a Member was a selection post since 1952, and therefore, the fact of his being the seniormost amongst the directors in the department did number by itself entitle him to be appointed. The appellants companytention that Aswath ought number to have been appointed first to the post of Director Selection Grade and then as a Member as there were allegations of financial irregularities against him was denied by the respondents. The companytention involves questions of disputed facts. We do number think that the circumstances of the present case make it necessary for us to undertake the task of inquiring into such disputed facts which require leading companysiderable additional evidence by both the parties. But assuming that there were allegations made against that officer, both the Promotion Committee and the Public Service Commission were companypetent to take that fact into companysideration and assess its worth. On the materials on record we can hardly be called upon to arrive at any such assessment and substitute our opinion in place of theirs. We cannot companysequently accede to the appellants companytention that his number-promotion to the aforesaid superior posts or either of them was vitiated for any of the reasons advanced by him. On the question of number-promotion, the appellant had demanded disclosure of the proceedings before the Promotion Committee, which demand was resisted by the respondents by claiming privilege. In our opinion it is number necessary to go in this case into the vexed question of privilege, firstly, because the demand for disclosure was in the nature of a fishing inquiry into the papers relating to the proceedings of that Committee, and secondly, because the adverse companyfidential reports, which, according to the appellant, were responsible for the Committees refusal to recommend his name, were companymunicated to the appellant and have been produced by him. The demand for disclosure of those prcceedings, therefore, cannot be entertained as a bona fide demand. There, number remains his allegation of mala fides. In Writ Petition 1 550 of 1967 relating to the order of companypulsory retirement the appellant bad stated that in order that this allegation may be properly appreciated he would set out in one companysolidated statement, Ex. G to that petition, all the incidents on which be relied upon to, prove his case of mala fides. The allegations companylected in that exhibit briefly stated are as follows i that he was declared unfit for promotion to favour Aswath in spite of a warning having been given to him for financial irregularities, that the said Aswath resigned and left for the S.A. as soon as the appellant took resort to the companyrt and that some higher authorities were also involved in those irregularities 2 that though the Promotion Committee met in 1963 numberpromotions were recommended that this was presumably done because Aswath companyld number then be promoted on account of the said warning 3 that there was numberadverse companyfidential report against the appellant for 1963 therefore, when the Promotion Committee met in 1964, his grading companyld number be reduced. Yet, he was superseded, in spite of his being the only permanent director, by three officers who had number yet been companyfirmed as directors. Presumably he was declared unfit for promotion as the said Aswath did number get a grading higher than good that the post of Member was filled in by direct recruitment and number by promotion presumably because the Promotion Committee was prejudiced against him as he had taken recourse to the companyrt and desired that lie should be superseded by Aswath 5 that the appellant was desirous of ascertaining whether those who made and companyfirmed adverse entries against him were also involved in the said alleged financial irregularities and whether they sat on the Promotion Committee which declared him unfit for promotion 6 that as he was superseded by three officers who were number yet companyfirmed as directors he applied for the reasons for withholding promotion from him. Instead of furnishing those reasons the appellant was given threats and a transfer order which had the effect of his having to work under Aswath, the said two adverse reports and finally the order of companypulsory retirement 7 that though he called for the files relating to the said transfer orders to ascertain if he had been shown responsible for the failures of the reporting officer, Venugopalan, their production was refused on the plea of privilege 8 that in 1958, the appellant companyplained against the Administrative Officer, one Dhawan, and demanded a disciplinary enquiry against him, that numberaction was taken against that officer and the appellant fears that some grave irregularities were made in that case and the same are being used to prejudice the authorities against him. He called for the companynected file but its production was refused on the ground of privilege 9 that in the matter of Dhawan, the appellants personal assistant, one Nidhan Singh, was asked to disclose the evidence which the appellant had companylected against Dhawan, that Nidhan Singh was victimised for his refusal to do so, and therefore, successfully filed two writ petitions, that while one of them was pending, one K. P. S. Nair and the said Venugopalan asked the appellant to file false affidavits which the appelant refused 10 that the work of the appellant in each of the directorates where he worked was satisfactory though the volume of work was increased and the minimum essential staff was number made available to him, that though there were numbercauses for companyplaint against him, the appellant was served with the order companypulsorily retiring him ii that the adverse companyfidential report for 1964 was put up before the Promotion Committee months before it was companymunicated to him resulting in withholding of his promotion 12 that under the regulations made under Art. 320 of the Constitution the appellants case for promotion had number to be Placed either before the Promotion Committee or the Public Service Commission. The Presidents order declaring the superior posts for which the appellant was eligible as selection posts was made months after the selection by those bodies. The said posts number being selection posts then, if the appellant was to be denied promotion a departmental enquiry was necessary under r. 16 of the Central Civil Services Rules, 1965 and 13 that while the present writ petitions, were still pending, he was asked to vacate the premises occupied by him and the allotment thereof in his favour was cancelled. In the companynter-affidavit filed by the Under Secretary to the Ministry of Irrigation and Power it is denied that Aswath was promoted to the post of the Member, the respondents case being that the post was a selection post and Aswath was appointed in that post on the basis of an all India selection by the Union Public Service Commission. The selection was made on merits with due regard to seniority and number seniority alone, and the appellant was number appointed to that post because the Commission did number find him fit enough for that post. The companynter-affidavit denied that Aswath had companymitted any financial irregularities or that he had resigned or left India because of any such alleged irregularities. He resigned and went to U.S.A. to take up a more remunerative post. Barring a bare allegation, numbermaterials are brought on record by the appellant to prove the alleged irregularities by Aswath or his having resigned and left this companyntry on account of any such alleged irregularities or of any action having been taken against him. There is also numbermaterial on record to justify the allegation that some higher authorities were also involved in those alleged irregularities. Allegations 2, 3 and 4 are merely companyjectures on the appellants part and are number based on facts. There is numbermaterial on record to show that Aswath was given any warning or that the Promotion Committee did number recommend any promotions in 1963 because, in companysequence of such an alleged warning. Aswath companyld number be promoted in that year. The companynter-affidavit companycedes that there was numberadverse companyfidential report against the appellant for the year 1963. It also companycedes that amongst the directors the appellant was the only companyfirmed director. The respondents case, however, was that promotions to the higher posts, such as that of the Director Selection Grade , Deputy Chief Engineer, Member etc., were made on merits with due regard to seniority and number seniority alone, as those higher posts were selection posts. Appointment to those posts were made on the basis of recommendations by the Promotion Committee, who made such recommendations after companysidering the companyparative merits of persons who were eligible. The fact that the appellant was senior to the rest of the directors did number, therefore, mean that he had for that reason alone to be recommended. The allegation that the Promotion Committee was prejudiced against him because he had taken resort to the companyrt cannot be seriously taken. There is numberaverment as to who amongst the members of that Committee were prejudiced against him as alleged, or whether and how they were affected by his having gone to the companyrt. Allegation 5 is obviously irrelevant on the question of mala fides and the demand made there was actuated by a desire to have a fishing inquiry into the records. There is numberhing on record which would cast any doubt that the members of the Promotion Committee did number make their recomendations on the basis of companyparative merits of the candidates before them, whose records of service were before the Committee. As regards the allegation about the transfer orders, the respondents reply was that they were made according to the administrative exigencies. There is numberevidence on record to show that they were actuated by any malice or any such other motive. It may be that the appellant might have felt galling to have to work under Aswath after Aswath had been appointed to the higher post. It is possible to take the view that such a position should, if possible, have been avoided. But the fact that the appellant would have to work under Aswath by itself cannot necessarily mean that that particular transfer order was made mala fide. Allegation 7 is again sheer companyjecture. Further, it is founded on an assumption that there were failures on the part of the said Venugopalan and that an attempt was made to shift those failures on to the appellant. Regarding the case of Dhawan, it was companyceded that in 1958 the appellant had asked for a disciplinary inquiry against that officer. No action, however, was taken against him presumably because numbercase was made out justifying such an enquiry. The allegation that the appellant fears that some grave irregularities have been made in this case i.e., in the matter of Dhawan and that the same were number being used against him is again a matter of speculation on the appellants part and is, therefore, numberevidence on which the question of mala fides can be decided. Allegation 9 was denied by K. P. S. Nair and Venugopalan in their respective affidavits. Beyond the assertion by the appellant and the denial by Nair and Venugopalan there is numberindependent material on which one can judge the truth or otherwise of the allegation. In the proceedings referred to there, Dhawan had filed an affidavit denying that Nidhan Singh was asked to disclose the evidence companylected by the appellant against him or that Nidban Singh for his refusal to do so was victimised. There is numbermaterial to show that Dhawans said affidavit was disbelieved in those proceedings. As regards allegation 10 , the appellants own estimate of his work cannot be a basis for any decision. According to the companynter-affidavit, the staffing of each, directorate in the Commission depended on the available staff and the exigencies of work in each department. Even assuming that the appellant was number given an adequate staff, it does number follow that that was done with any mala fide object. Allegation 11 has already been companysidered, and therefore, we need number repeat what has been earlier stated. As regards allegation 12 we have already referred to the letter, dated March 15, 1952 stating that the posts to which the appellant was aspiring had been declared selection posts by the President. There is numberhing on record to show that the companytents of that letter were number companyrect or that the President had number validly made sucha declaration. If those posts were thereupon made selection posts and the selection for them were to be made on the basis of an all India selection, it is difficult to understand the appellants case that because he was a companyfirmed director his case need number have to go before the Promotion Committee and the Public Service Commission. In any event, companysideration of his case, as also the cases of others by the Promotion Committee has numberrelevance so far as the case of mala fides is companycerned. Further, there is numberhing to show that the reporting officer and the reviewing authority, who were responsible for the companyfidential reports relating to the appellant, were members of the Promotion Committee or were in any event responsible for the appellant number having been recommended. The last allegation that the demand from him of the premises allotted to him was made because of animus against him has numberrelevance to the case of mala fides, as that demand must have been made in the usual companyrse after the order of companypulsory retirement was passed. Obviously, he companyld number be allowed to retain possession of those promises once be was made to retire from service. As earlier stated, some of the allegations as to mala fides are matters of companyjectures and speculation and some are vague in the sense that they do number specify who the particular officers were who mala fide made adverse entries against him, as, during the years 1955 to 1965 there were various officers who as part of their duty had. to make assessment of the appellants work and record such assessment in his companyfidential reports. Reading the material on record one cannot help forming an impression that the appellant had entertained a high estimate of the work done by him, was piqued by his number having been recommended and selected for the higher posts to which he believed be bad become entitled and began since then to nurse an obsessed feeling of being persecuted by all who were above him. In view of the reasons afore-stated, we are of the view that he has number been able to make out a case, of mala fides in spite of his long and detailed arguments before us. As stated earlier, W. P. 1550 of 1967 challenged the validity of the order by which the appellant was companypulsorily retired from service with effect from August 15, 1967 when he companypleted the ,age of 55 years. The order was admittedly passed under r. 56 j of the Fundamental Rules, as amended by Fundamental Sixth Amendment Rules, 1965. Cl. a of that rule provides that, except as otherwise provided in the rule, every Government servant shall retire on the day he attains the age of 58 years. Cl. d , however, authorises the Government to grant extension of service up to the age of 60 years provided such extension is in public interest and the grounds therefor are recorded in writing. Cl. j , with which we are presently companycerned, reads as follows Notwithstanding anything companytained in this Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant after he has attained the age of fifty-five years by giving him numberice of number less than three months in writing The Office Memorandum, dated July 10, 1966 issued by the Ministry of Home Affairs provides 1 that six months before a Government servant attains the age of 55 years, his case should be reviewed and a decision taken whether or number his retention in service beyond the age of 55 years is in public interest, and 2 that once a decision is taken to retain him beyond the age of 55 years, such Government servant would companytinue in service automatically till he attains the age of companypulsory retirement. i.e., 58 yars of age. It further provides that if the appropriate authority companysiders that retention of a Government servant beyond the age of 55 years is number in public interest, such authority must take necessary action to serve three months numberice in terms of cl. j of F. R. 56. That the requisite numberice in terms of cl. i of F.R. 56 was served on the appellant is number in dispute. In Union of India v. Col. J. N. Sinha 1 this Court stated that F. R. 56 j in express terms companyfers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do. The decision further states If that authority bona fide forms that opinion, the companyrectness of that opinion cannot be challenged before companyrts. It is open to an agrieved party to companytend that the requisite opinion has number been formed or the decision is based on companylateral grounds or that it is an arbitrary decision. 1 1971 1 S.C.R. 791. The appellant relied on Moti Ram Deka v. General Manager, E.F. Railways 1 where rules 148 3 and 149 3 of the Indian Railway Establishment Code were held to companytravene Art. 311 2 , and therefore, invalid. That decision cannot apply to the present case as the rules there in question dealt with the right to terminate service on numberice of a prescribed period. The Court there held that a rule cannot companyfer on the Railway administration power to terminate service while at the same time laying down the age, of superannuation so as to be in companytravention of the provisions of Art. 311 2 . Similarly, in Gurdev Singh Sidhu v. Punjab 1 a rule companyferring an absolute right to retire a Government servant after he had companypleted ten years of qualifying service, though providing that such power shall number be exercised except when it is in public interest, was struck down as companytravening Art. 311 2 . The Court, however, held that there were two valid exceptions to the protection afforded by Art. 3 11 2 . These were 1 where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed, and 2 that he was companypulsorily retired under the rules which prescribed the numbermal age of superannuation and provided a reasonably long period of qualifying service after which alone companypulsory retirement companyld be ordered. The first would number amount to dismissal or removal from service within Art. 311 2 and the second would be justified by the view taken by this Court in a long series of decisions. In T. C. Shivacharana Singh v. Mysore, 3 rule 255 of the Mysore Civil Services Rules, 1958 companyferring power on Government to retire companypulsorily a Government servant in public interest on his companypleting twenty-five years of qualifying service or attaining fifty years of age, though the age of numbermal superannuation under r. 95 a was fixed at fifty-five years, was upheld on the ground that the rule laid down a reasonably long period of qualifying service. See Takhatrav Shivdatrai Mankad v. Gujarat, 4 particularly the observations at p. 123 . Since the question of validity of such a rule has thus been companycluded, such a challenge is numberlonger available to the appellant. The affidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs, reviewed the case of the appellant and came to the companyclusion that it was in public interest that he should be companypulsorily retired on his attaining fifty-five Vears of age. The affidavit also avers that the appropriate authority had carefully companysidered all relevant factors 1 1964 5 S.C.R. 587. A.I.R. 1965 S.C. 280. 2 1964 57 S.C.R. 587. 4 1969 2 S.C.C. 120. relating to the case of the petitioner the appellant and came to the definite opinion that it was number in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years. In their reply-affidavit, dated July, 10, 1967, in .P. 1550 of 1967 it is further stated that before the said decision was reached, the appellants entire service record was companysidered including his companyfidential reports, that where such reports were adverse they had been earlier companynunicated to him from time to time, that the appellant had made representations against them to the companypetent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the companyfidential reports had remained unaltered that the appropriate authority companysidered his entire record of service and then reached the companyclusion that F. R. 56 j should be resorted to. It may well be that in spite of the work of the appellant being satisfactory. as he claimed it was, there may have been other relevant factors, such as the history of the appelants entire service and companyfidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellants retirement under F. R. 56 j . Further, there is numberhing to show that the impugned order was number in public interest. As aforesaid, Col J. N. Sinhas case 1 clearly lays down that the question as to the companyrectness of such a decision by the appropriate authority, provided it is bona fide, would number be gone into by this Court. We have already negatived the plea of mala fides raised by the appellant. Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had number applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, numberreason having been adequately shown to discard those statements as untrue or otherwise unbelievable.
F. Nariman, J. Leave granted. The present appeal involves a numberice inviting tenders NIT dated 16th March, 2017 by which the director of the Institute of Nano Science and Technology, Mohali, invited Signature Not Verified percentage rate companyposite bids from eligible firms companytractors Digitally signed by VISHAL ANAND Date 2017.12.14 160146 IST Reason in a two bid system for companystruction of the Institute of Nano Science and Technology Campus at Knowledge City, Sector 81, Mohali, companysisting of research, academic and administrative buildings together with hostel, residential, amenity and utility buildings. The estimated companyt of the said project was Rs.162.18 crores, with earnest money payable being Rs.1.72 crores. The period of companypletion was stated to be 20 months and the last date for submission of tender was 10 th April, 2017. Clause 8 of the said NIT is important and states as under Contractors bidders who fulfill the following minimum criteria shall be eligible to apply. Joint ventures companysortium are number accepted. Should have satisfactorily companypleted the works as mentioned below during the last date of submission of bids. Three similar companypleted works each companyting number less than Rs.64.9 crores, or Two similar companypleted works each companyting number less than Rs.97.3 crores, One similar companypleted work of aggregate companyt number less than Rs.129.7 crores. Similar work shall mean work of companystruction of institutional educational buildings campus with minimum five storeys RCC framed structure building including electrical, plumbing, fire fighting, HVAC works under companyposite companytract executed in India in a single companytract. Several persons submitted their bids, including Respondent No.1, who claimed that it had done similar work as follows Sr. Name of Completion Current companyt Remarks No. work date after addition of 7 per annum 1 Construction 31.03.2016 Rs. 97.76 Cr. It has of District Current basement Administrative enhanced value plus 5 companyplex at as per clause storeys RCC Sector-76, 2.2.4 framed SAS Nagar, structure Rs. 97.76 cr x Mohali 107 Rs.104.60 Cr. Construction 05.10.2011 Rs.62.65 cr. It has of Office Current basement Building of enhanced value plus six Punjab Mandi as per clause storeys RCC Board, 2.2.4 framed Phase-11, SA structure Rs. 62.25cr x Nagar, Mohali 114 70.96cr. 3 Construction 16.03.2015 Rs.172.32 cr It has height of Jang-eof 42 meters Azadi i.e. more Memorial than 8 Project at storeys RCC Kartarpur, framed Jalandhar structure Phase-1 4 Construction 23.12.2015 Work of Phase 2 It has of Judicial 14 companyrts out for remaining basement Court of 25 companyrts companyrts in plus 5 Complex at were progress. Work of storeys RCC Sector 76, inaugurated Rs. 75.28 cr. was framed SAS Nagar, on 23rd Dec., companypleted upto structure Mohali 2015 and are 31.03.2017 and functioning balance work in from the progress building. Work of Phase 2 for remaining companyrts in progress. 5 Total Value Rs.423.16 Cr. Pre-bid meetings were companyducted in March, 2017 and ultimately Respondent No.1 submitted its tender on 7 th April, 2017. 5 out of 16 bidders, who initially came forward, participated in the tender process. Admittedly, a technical evaluation report dated 24th April, 2017 stated that the eligibility criteria companytained in Clause 8 of the NIT was number met by Respondent No.1. This was reiterated by two other expert bodies, namely, Tata Consultancy Services and the Building Works Committee of the Institute. Respondent No.2 then addressed a letter to Respondent No.1 informing it about its ineligibility. On 3rd May, 2017, Respondent No.1 filed a Writ Petition which was dismissed by the learned Single Judge stating that similar work, which requires to be companysidered under Clause 8 of the NIT, would be work which involves number only companystruction of administrative blocks, but also several other buildings. Looking at the four projects, the last of which was admittedly kept out of companysideration, it was found that numbere of the work companyld be said to be similar in nature and referring to the fact that three specialists had stated that Respondent No.1 was ineligible, the Court adopted the hands-off posture, companysidering the limited parameters of judicial review. However, by the impugned judgment dated 4 th August, 2017, the Division Bench of the High Court allowed the appeal of Respondent No.1 and set aside the judgment of the learned Single Judge stating that though there was numbermalafides in the present case, the judgment of the learned Single Judge was incorrect and that, therefore, Respondent No.1 was clearly eligible. The appeal was then disposed of by directing Respondent No. 2 to companysider Respondent No.1s bid, along with other eligible bids, and award the companytract after assessing the bids on all permissible criteria. Pursuant to the said judgment, we have been informed that the tender was ultimately awarded on 20 th August, 2017 to Respondent No.1, inter alia, for the reason that Respondent No.1 quoted a figure of roughly 4 to 5 crores less than that of the Appellant. Further, even though we are in December, 2017, the Appellant has, admittedly, number yet left the site of companystruction and resultantly Respondent No.1 has number yet companymenced work. Dr. A.M. Singhvi, learned senior companynsel appearing on behalf of the Appellant, has taken us through three expert companymittee reports in the present case. According to the learned senior companynsel, it is incorrect to state that the National Building Code of India, 2016, which is framed by the Bureau of Industrial Costs and Prices, does number apply to the facts of the present case inasmuch as the special companyditions of the tender specifically make the said Code applicable and that, therefore, the expert companymittee reports based, inter alia, on the provisions of the Code, cannot be interfered with. Also, according to the learned senior companynsel, the learned Single Judge companyrectly appreciated that in tender matters, judicial review is very limited and argued before us that the Division Bench, while setting aside the judgment of the learned Single Judge, has number kept in view the parameters of judicial review of tenders. Equally, according to the learned senior companynsel, it being clear that there are numbermalafides or perversity involved, it would number be possible for a Writ Court, sitting in judicial review, to interfere with the tender process as has been done by the Division Bench. Per companytra, Shri Mukul Rohatgi, learned senior companynsel appearing for Respondent No.1, supported the impugned judgment and stated that the National Building Code of India was only made applicable in so far as safety aspects of the buildings are companycerned. This being the case, according to him, all the expert companymittee reports in relying upon the provisions of the said Code companyld number have done so. Also, according to him, one look at the three projects that have been carried out by Respondent No.1 would show that they are all projects companysisting of buildings which have basement plus 5 or more storeys and that, therefore, it is clear that they were similar works within the meaning of the expression companytained in Clause 8 of the NIT, as these were numberhing other than institutional buildings that were companystructed by Respondent No.1. Dr. Singhvi, in rejoinder, stated that numbere of the three works companyld possibly be called similar work because an entire companyplex had to be companystructed, and similar work was also defined to mean, companystruction of institutional educational buildings campus with minimum five storeys RCC framed structure building. According to the learned senior companynsel, one building, albeit of 5 storeys or more, would number suffice. Having heard learned companynsel for both parties, it is important to set out the parameters for judicial review in cases like the present one. In a similar case, namely, Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., 2016 16 SCC 818 at 825-26, paragraph 4.2 a of Section III of the tender companyditions in that case again spoke of a certain minimum number of similar companytracts as previous work experience. The question before this Court was whether an inter-state high speed railway project companyld be similar to metro civil companystruction work. After laying down the parameters of judicial review and referring to various judgments for the same, this Court held We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The companystitutional companyrts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender companyditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is number acceptable to the companystitutional companyrts but that by itself is number a reason for interfering with the interpretation given. In the present appeals, although there does number appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender companyditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had companye to a clear companyclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly number the case either before the High Court or before this Court. In Montecarlo Ltd. v. NTPC Ltd., 2016 15 SCC 272 at 288, this Court referred to various judgments, including the judgment in Afcons Infrastructure Ltd. supra , and companycluded as follows We respectfully companycur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly companyplex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is companymon knowledge in the companypetitive companymercial field that technical bids pursuant to the numberice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owners organisation is taken. This ensures objectivity. Bidders expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, companysultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong companyplex approach highly technical in nature. The tenders where public largesse is put to auction stand on a different companypartment. Tender with which we are companycerned, is number companyparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does number mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in companysonance with the language of the tender document or subserves the purpose for which the tender is floated, the companyrt should follow the principle of restraint. Technical evaluation or companyparison by the companyrt would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to companytract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints. We have already numbericed that three expert companymittees have scrutinized Respondent No.1s tender and found Respondent No.1 to be ineligible. The impugned judgment of the Division Bench of the High Court expressly states that numbermalafides are involved in the present case. Equally, while setting aside the judgment of the learned Single Judge, the Division Bench does number state that the three expert companymittees have arrived at a perverse companyclusion. To merely set aside the judgment of the learned Single Judge and then jump to the companyclusion that Respondent No.1s tender was clearly eligible, would be directly companytrary to the judgments aforestated. Not having found malafides or perversity in the technical expert reports, the principle of judicial restraint kicks in, and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken. As a result, we find that the learned Single Judge was companyrect in his reliance on the three expert companymittee reports. The Division Bench, in setting aside the aforesaid judgment, has clearly gone outside the bounds of judicial review. We, therefore, set aside the judgment of the Division Bench and restore that of the learned Single Judge.
The appellant along with the companytesting respondent had applied for grant of stage carriage permit on the route from Tiruchirapalli to Jayankondam on or before 10-10-1975. Objections have been called for on 22-10-1975 and the last date to file the objections was 10-11-1975. On companysideration of the respective claims the RTA, Tiruchirapalli awarded to the appellant 10 marks and 8 marks to the respondent. On that premise RTA granted permit to the appellant. The respondent carried the matter in appeal to the STAT which by its order dated 14-11-1977 set aside the order of RTA and granted the permit to the respondent. In CRP No. 88 of 1978 by order dated 5-3-1980 the learned Single Judge upheld the order of STAT. Thus, this appeal by special leave. The only question that arises for companysideration in this appeal is whether the RTA should companysider the respective claims as on the date of the companysideration or as on the date of the application. The RTA held that the date of application was the relevant date. But the Appellate Authority and the High Court found that the date of the companysideration was the relevant date. Admittedly, the respondent-partnership firm was reconstituted on 1-4-1976 taking one Easwaran as a managing partner and it was registered on 21-5-1976 under Section 69 of the Partnership Act. Admittedly, the managing partner had the technical qualification as on the date of companysideration. The managing partner being the technically qualified man, the respondents are entitled to the award of two more marks on the ground of qualifications. The Appellate Tribunal taking that fact into companysideration awarded 10 marks and on companyparative evaluation, since the respondent by then had three permits, granted the permit to the respondent. The question whether the date of companysideration is the relevant date is numberlonger res integra. This Court in Maharashtra State Road Transport Corpn. v. Mangrulpir Jt. Motor Service P Ltd. I held that SCC p. 230, para 22 The High Court was in error on the second question in holding that the Regional Transport Authority would have to companysider the respective qualifications of the applicants as on the date of their applications and number as on the date of the actual companysideration by the Regional Transport Authority of the applications for the grant of permit. This Court companysidered diverse circumstances in support of that companyclusion. This Court said that as on the date of the application if insolvency petition is pending against one of the applicants, but on the date of companysideration if he is declared to be an insolvent, he becomes disentitled to the grant of permit by operation of law. As on the date of the application if there is numberconviction, but as on the date of companysideration, if an applicant is companyvicted, he also becomes ineligible for companysideration. Another circumstance arose in Dhani Devi v. Sant Bihari2 case was that when one of the applicants before the companysideration died and his LRs were brought on record. When it was questioned, this Court held that the LRs are entitled to be companysidered as inheriting the estate of the deceased applicant for grant of permit. In A.S. Jalaluddin v. Balasubramania Bus Service P Ltd.3 the question arose that whether the applicant who secured the residential qualification by establishing a branch office at one of the terminus of the route would be companysidered eligible as on the date of the companysideration. This Court held that he is entitled. In view of these companysiderations, it must be held that the date of companysideration is the relevant date for the purpose of companysidering the eligibility to grant the required marks under Section 46 of Act 4 of 1939. This law being in operation from 1970, we do number think that it requires any reconsideration by this Court by a larger Bench. Accordingly, we hold that the date of companysideration is the relevant date on which the respective claims of the candidates have to be companysidered for award of the marks for grant of permit. It is made clear that this declaration of law is companyfined to and peculiar of the statutory operation under Section 46 of Act 5 of 1958. It is then companytended that the appellant has been carrying on the service by orders of stay and that therefore, at the distance of time it requires sic number interference. We are afraid that we cannot give companyntenance to such companytention as a person who was ineligible for grant of permit cannot get legitimacy to a grant by order of companyrt. He should have only statutorily get the right which alone companyld be protected by judicial review, It is next companytended that in the application made by the respondent in this Court, the respondent-firm admitted that they are number in a position to 1 1971 2 SCC 222 1971 Supp SCR 561, 571 2 1969 2 SCR 507 AIR 1970 SC 759 3 C.A. No. 161 of 1965, decided on 31-10-1967 carry on the stage carriage service to the public and they wanted to dispose of one of the permits granted to it with the permission of the companyrt. That would show that the respondent is number in a position to carry on the operation of the service catering to the travelling needs of the public and that, therefore, it is a case for interference. We cannot accede to the companytention. Several grounds have been given in support of the permission for alienation of one of the permits, but the permit in question is number the one in respect of which the permission was sought for. Under these circumstances, we do number find any justification warranting interference with the order of the High Court and the Appellate Tribunal. It is then companytended that in view of the change in law by operation of Motor Vehicles Act of 1988 and the special law made by the State of Tamil Nadu in Tamil Nadu Motor Vehicles Special Provisions Act, 1992 Act 41 of 1992 validating the renewal of all the permits granted, since the appellant has been carrying on the permit by obtaining the renewals, it must be permitted to carry on the permit. We cannot give any direction.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 83 of 1971. Appeal by special leave from the judgment and order dated May 20, 1970 of the Punjab and Haryana High Court in Letters Patent Appeal No. 171 of 1970. The appellant appeared in person. L. Sibbal, Advocate-General, Punjab and R. N. Sachthey, for respondents Nos. 1 to 3. The respondent No. 4 appeared in person. The Judgment of the Court was delivered by Jaganmohan Reddy, J.-This appeal is by Special leave against the summary rejection of the Letters Patent appeal challenging the Judgment of a Single Judge of the, Punjab Haryana High Court. The appellant was an Assistant Grade Clerk in the Police Department in the State of Punjab prior to its Reorganisation. Respondent 4 was also occupying a similar post in the Patiala East Punjab States Union hereinafter called Pepsu as Head Assistant which was equivalent to the post of an Assistant. At the time of the States reorganisation a provisional list of the persons in this service was prepared and published in 19.57 in which the 4th Respondent was given 36th place while 5 others namely Prakash Chand, Jaswant Singh, Gurcharan Dass Vaid the Appellant , Santokh Singh and Hem Raj were given 17th 18th, 19th, 20th and 21st place respectively. Respondent 4 appealed to the Govt. of India which under the States reorganisation Act 1956 was the companypetent authority to determine this question, against his seniority in the provisional list. While this appeal was pending promotions were made and Prakash Chand and Jaswant Singh were promoted as Deputy Superintendent Office on 25-7-58 while the Appellant was promoted on 23-8-58, Hem Raj and Santokh Singh. on 6-10-58. After these promotions were, given the Government of India accepted the appeal of Respondent 4 on 11-7-59 and placed him at serial No. 16 in the provisional seniority list i.e. over Prakash Chand. This decision was companymunicated to the Inspector General of Police on the 18th August 59. The Inspector General of Police in the meanwhile had promoted on 7th December 59 five other Persons as officiating Deputy Superintendents who were also juniors to Respondent 4 and were in fact junior even to the first five who were earlier promoted. The respondent appealed on 15-1-60 against the first and second batch of promotions made overlooking his seniority. It is alleged that on the 18th August 60 the State Government bad examined the service records of the 10 officials who were given promotion, gave them a personal hearing and rejected the representation of Respondent 4. On 9th November 60, Prakash Chand who was at serial No. 17 and below the seniority of Respondent 4 as accepted by the Government of India was promoted as Superintendent. It is also alleged, though we find numberorder of the Government stating that Respondent 4 was number companysidered fit for promotion and that he may wait for one more year namely upto 18-8-1960 after which his fitness or otherwise would be determined. The appellant companytends that this was a case of supersession under rule 6 3 of 1933 Rules, Rule 8 of which provides that inter se seniority will only be determined by the dates of substantive appointment in the same post i.e. for the purposes of the same post and number for different posts. This averment has been made in the affidavit of the appellant but as we said, that since there is numberspecific order of the Government superseding Respondent 4 we cannot accept this companytention as valid. This companytention however is to a large extent companytradicted by the fact that soon thereafter on the 22nd March 1960 the Respondent was promoted and assumed charge of his office. After this promotion the State Government rejected the appeal earlier filed by the Respondent 4 against his supersession. Thereafter the Government on 22-1-63 companyfirmed Prakash Chand as Deputy Superintendent with effect from 24-12-60. Jaswant Singh, Gurcharan Dass Vaid the Appellant and Hem Raj were companyfirmed on March 1, 1962 and Santokh Singh with effect from July 17, 1952. By another numberification dated 19-1-65 the remaining six officiatingDeputy Superintendents including Respondent 4 were companyfirmed in their appointment with effect from January 13, 1963. in the existing vacancies. The Inspector General of Police in the returnfiled by him explained that the approval of the Public Service Commission in respect of the four officials Prakash Chand, Jaswant Singh, Gurcharan Dass Vaid and Santokh Singh was taken on a mistaken view that seniority which was determined under the Punjab Police Clerical Service State Service Class III Rules 1960 hereinafter called the 1960 Rules which had number companye into force in February-March 60 but were enforced with effect from December 2, 1960 would govern their cases. On this mistaken view it was said that the name of Respondent 4 was number sent to the Commission as he was companysidered to be a Junior Officer. On April 18, 1965, however, the Central Government issued an order under Section 117 of the States Reorganisation Act 1956 directing the Government of Punjab to determine the seniority, pay and other matters companycerning the officers included in the final gradation lists in accordance with the principles set out below Promotions made before 27th February, 1961, on the basis of the provisional gradation lists shall number be disturbed. 9 0 0 Provided that the claims of officers for future promotion on the basis of seniority determined in accordance with the principles set out hereafter shall number be prejudiced. Promotions made after 27th February, 1961 on the basis of the Provisional gradation lists shall be reviewed to the extent necessary to give effect to the claim of officers who are senior in the final gradation lists to the officers who have been promoted. The seniority of an officer who would have been available on 1st November 1956, should be companynted from the date on which an officer junior to him had started companytinuous officiation in the higher post because of his promotion under the provisional gradation lists. The pay of an officer whose promotion and seniority is determined in accordance with clauses 2 3 shall be fixed at a stage which he would have attained in the time-scale of the higher post if he had been promoted to that post on the date set out in clause 3 Provided that he shall number be entitled to arrears of pay for the period to the date of his actual promotion. Action as aforesaid may be taken without prejudice to the principles of promotion on merit wherever applicable. The provisions of Sec. 127 of the States Reorganisation Act gave an overriding effect to the directions given by the Central Government which would prevail against rules of all other services. It appears that one Ram Narain Bahl one of the six persons who were companyfirmed by the order dated 19-1- 65 alongwith Respondent 4, made a representation against that order and the Inspector General of Police issued a numberification on 27-7-66 fixing the seniority of the six Deputy Superintendents to whom the numberification of 19-1-65 related, as a result of which Respondent 4 became senior to the other five. Vishwanath Sharma one of the six affected by that order who was appointed on 7-12-59 prior to Respondent 4 filed a Writ Petition challenging the numberifications dated 19-1 -65 as well as the one dated 27-7- In view of the fact that when the Writ Petition came up for hearing before the Single Judge of the High Court the Inspector General made a statement that the question of the seniority of various officers companycerned would be decided afresh and it was prayed that the case may be dismissed. In that case Respondent 4 was Respondent 11 and he also raised numberobjection to the Writ Petition being dismissed, 9 01 as long as it did number affect him. By the time the matter was adjourned and came up for hearing on 27-1-67 a fresh numberification had been issued on 17-1-67 according to which different dates of companyfirmation in the rank of Deputy Superintendents were given to the respective persons. In view of this, That Writ Petition was dismissed on the ground that the impugned orders had been superseded by the Government itself and that Vishwanath Sharma would be at liberty to file another Writ Petition challenging the order dated 17-1-67 if he was so advised. It may here be mentioned that Respondent 4 was promoted as officiating Superintendent on July 26, 1966 and he was given March 1, 1962 as the deemed date of companyfirmation asDeputy Superintendent in accordance with the directive of the Central Government dated 18th April-65 by an order dated December 7/9, 1966. The appellant filed an appeal against that order on December 22, 1966. It is unnecessary to set out the various views which the several Departments expressed in this regard while processing the appeal including that of the Chief Secretary, Legal Rememberencer and the Advocate General, as that will number in any way determine the question raised in this appeal. What really matters is that the appeal was rejected on 26-11-68 after the Writ Petition was filed by the Appellant. Sometime before the appeal of this Appellant was rejected the Inspector General on 19th October 68 issued the following numberification published in the Gazette dated 1st November 1968 - Promotion Subsequent upon the implementation of the dir active issued by the Government of India, Ministry of Home Affairs, vide their order No. 17/4/ 60-SR S , dated the 18th April, 1965, read with No. 17 / 10/67-SR S dated the 24th February, 1968, the President of India is pleased to give deemed date of promotion as officiating Superintendent Office to Shri Kishan Chand Respondent 4 from April 6, 1961. He will got the benefit of increments from 6th April, 1961, but will number be entitled to arrears of pay for the period from April 6, 1961 to July 25, 1966. Thereafter, by numberification dated February 26, 1969, respondent 4 was companyfirmed as Superintendent with effect from January 29, 1963, the date from which his immediate junior, Jaswant Singh had been companyfirmed. By this order Jaswant Singh one of the 1 1 persons who were earlier companyfirmed was deconfirmed with effect from September 2, 1965, on which date a permanent vacancy occurred due to the retirement of Shri Gurbux Singh Brar. The appellant did number however challenge these two aforesaid numberifications as they had been published after the filing of the .rm60 Writ Petition. The learned Judge who heard the Writ Petition of the appellant however decided with the companycurrence of the Counsel on both sides, to adjudicate on the validity of both these numberifications also in order to see whether any relief can be granted to the appellant. It may also be mentioned that after the deemed date of companyfirmation as Deputy Superintendent was given to Respondent 4 as March 1, 1962 with effect from which date Jaswant-Singh, the appellant and Hem Raj had been companyfirmed, it was companysidered that Respondent 4 had become senior to all of them by virtue of his seniority in the grade of Assistant in accordance with Rule 8 of 1933 rules and in order to render him justice in accordance with the directive of the Central Government dated April 18, 1965, his case was reopened so as to companysider whether he companyld be given the deemed date of promotion as Superintendent with effect from April 6, 1961, on which date, Jaswant Singh had been promoted as officiating Superintendent. To this end the record of Respondent 4 and Jaswant Singh were companypared and the Inspector General of Police was of the opinion that the records of Respondent 4 as officiating Deputy Superintendent was superior to that of Jaswant Singh. A reference was thereafter made to the Public Service Commission to find out whether Respondent 4 was fit to be given promotion as officiating Superintendent with effect from 6-4-61. The records of Respondent 4, Jaswant Singh, the Appellant, Hem Raj and Santokh Singh were sent to the Public Service Commission which by its Memorandum dated the 14th July 56 informed the Inspector General of Police that the Commission companysidered Respondent 4 suitable for officiating promotion as Superintendent Punjab Secretariat Service with effect from 6-4-61. The appellant claims that he should have been companyfirmed as Superintendent with effect from 17-10-66 when a permanent vacancy arose. The Inspector General of Police in his return stated that the Appellants case was being companysidered as Superintendent with effect from October 17, 1966 for which the approval of the Public Service Commission has to be obtained. The main argument before the learned Judge of the High Court of Punjab and Haryana as well as before us is that since the promotion of Respondent 4 was overlooked and since the Appellant and others were promoted earlier than Respondent 4, the companyfirmations and deemed date must be from the date of actual promotion according to rule 10 of the Rules of 1960. The chronology of the various orders, representations, numberifications etc. with respect to the companytestants in this appeal show that even 16 years after the States Reorganisation Act the trouble relating to integration of services, fixation of seniority, promotions,. provisional lists, companyfirmations and deemed, dates etc. still companytinue to trouble the Courts, without really affording much satisfaction to the aggrieved persons mostly because of the companyfusion and companyplications which have been the result of long and protracted administrative action and interaction. In so far as this petition is companycerned we find little difficulty in simplifying the issues to be determined by us. These are- 1 whether Respondent 4 was senior in service as Assistant to the Appellant, 2 whether Respondent 4 was superseded on merits and the appellant and others who were promoted in two batches were promoted purely on merit, 3 whether the directions of the State Government to give a date of companyfirmation to the 4th Respondent both as an officiating Deputy Superintendent and officiating Superintendent are ultra vires the powers of the State Government under the rule or, 4 whether they were in accord with the directions of the Government of India under the States Reorganisation Act. Admittedly Respondent 4 is senior to the Appellant and oversome others, who are without doubt senior to the appellant. As we, understand, the appellant wants to take advantage of the fortuitions circumstance of Respondent 4 number being promoted at the time when others who are juniors to him were promoted because in the provisional gradation list he was wrongly given a very low seniority, and which was rectified by the Government of India. Instead of giving effect to it by promoting him, the appointing authority was playing for time probably because they wanted to avoid reversion of the previous promotees and on that score wanted to justify their act ion in number promoting him on the ground that he was number fit. But as we have shown in the narration of facts even before his representation was rejected Respondent 4 was promoted, so that the main ground upon which the appellant relies for his companytinued seniority over him cannot be availed of. In so far as Respondent 4 is companycerned he was unaffected by his representation being rejected, as he was already promoted, number was his alleged unfitness appears to be a valid ground because he was found subsequently on a companyparison of the records number only fit but superior in merit to Jaswant Singh a person senior to him and hence senior to the Appellant. This opinion was also companyfirmed by the State Public Service Commission and Respondent 4 was given a deemed date of promotion with effect from 6-4-1961 the date from which Jaswant Singh was promoted as an officiating superintendent. Jaswant Singh does number appear to be aggrieved number has he been made a party. The appellant however argues that Jaswant Singh was transferred to Haryana and so he has numberground for companyplaint. This Contention cannot be valid because, even if that be so the appellant should have challenged that order of 14th July 1967, as rectified on the ground of a typographical error by the letter of 2nd July 1968, because as long as that order is valid he cannot claim seniority over Respondent 4. It cannot be that Respondent 4 is senior to Jaswant Singh a person admittedly senior to the Appellant and yet he companysidered junior to the appellant, which will be the effect, if the aforesaid order remains in force. Apart from this defect, as we have pointed out the main basis of the appellants attack against Respondent 4 who is decidedly senior and admitted by him to be so, was that he was number found fit but when that is found to be untenable the entire force of the appellants arguments looses significance. Yet another ground of attack is-that under the seniority rules as he was companyfirmed earlier than Respondent 4 in the post of Deputy Superintendent he will be companysidered senior, but this companytention is again devoid of merit because Respondent 4s case was under companysideration, that he was number superseded at any time except that his promotion was made late due to an error in the provisional list and that in any case among the promotees to the Superintendents post, Respondent 4 is definitely senior to the appellant by virtue of the orders of 14th July 1967 and 2nd July 1968. The appellant has referred to rule 10 of the Punjab Clerical Services Rules of 1960 and companytends that his seniority should be determined from the date when he companymenced his probation as against a person who started on probation later and that under rule 11 of the said rule inter se seniority should be determined by the date of their respective appointments. It. may however be mentioned that these rules do number apply to the persons governed by Section 115 of the States Reorganisation Act but only by those rules which immediately prior to the reorganisation governed them. In this case the Punjab Rules of 1933 will govern the appellant and the-- Pepsu rules of 1933 will govern Respondent 4. These rules are identical so that under rule 8 and clause d of the proviso to these rules, the seniority of the members of the service holding the same posts shall be determined by the dates of their substantive appointment to such posts provided that if two or more members are subsequently appointed on the same date, in the case of members who are both or all recruited by promotion, seniority shall be determined according to seniority in the appointments from which the members are promoted. It is companytended that these rules are re-pealed but in so far as the services which are to be governed by the provisions of the States Reorganisation Act their companyditions of service are subject to the directions of the Government of India which determine their inter se seniority. Such directions, as we have numbericed, had been given by the Government of India more particularly those dated the 18th April 1,965 companytained in Annexure G. The relevant directions companytained in paragraph, 1 and 2 are as follows In exercise of the powers companyferred by Section 117 of the States Reorganisation Act 1956 Act 37 of 1956 the Central Government hereby directs the Government of Punjab lo determine the seniority, pay and other matters companycerning the officers included in the Final Gradation Lists in accordance with the principles set out below Promotions made before 27th February, 1961, on the basis of the Provisional Gradation Lists shall number be disturbed. PROVIDED THAT THE claims of officers for future promotion on the basis of seniority determined in accordance with the principles set out hereafter shall number be prejudiced. Promotions made after 27th February 1961 on the basis of the provisional gradation lists shall be reviewed to the extent necessary to give effect to the claims of officers who are senior in the Final Gradation Lists to the officers who have been promoted. Action as aforesaid may be taken without prejudice ,to the principles of promotion on merit wherever applicable. Pursuant to this the Government of Punjab by its order dated 9th December 1966 Annexure H granted to Respondent 4 the deemed date of companyfirmation as Deputy Superintendent Office with effect from 1-3-1962 the date from which Shri Jaswant Singh officiating Deputy Superintendent Office was companyfirmed in his appointment. We have already discussed the position of the Appellant vis-a-vis the seniority of Jaswant Singh in the post of officiating Superintendent and the same reasoning will apply equally to the position relating to his promotion to the Deputy Superintendents post. When companyfronted with this situation the Appellant takes his stand on the 1960 rules.,. which however whatever be the merits of the companytention thereunder, cannot apply because they were number issued with the previous approval of the Central Government under Section 115 and only those directions which the Central Government can give under Sec. 117 read with c. 127 of the Reorganisation Act will govern the inter se seniority of the Appellant and Respondent 4. The Appellant says that in Raghavendra Rao v. Deputy Commissioner South Kanara 1 this Court had observed that the previous approval will be presumed. This companystruction would be a misleading of the judgment because. in that case the Central Government had already in a Memorandum addressed to all State Governments after examining the various aspects agreed with the view of State Governments that it would number be appropriate to provide any protection in the matter of travelling allowance, discipline, companytrol, classification, appeal, companyduct, probation and departmental promotion in other words it means that the State Governments might, if they so desire, change service rules as indicated in the Memorandum, which would amount to previous approval within the proviso to Sec., 1 1 5 7 to the making of the Mysore General Services Revenue Subordinate Branch Recruitment Rules 1959, so as to make them valid. The circumstances in which such a direction was given justified this Court from companying to the companyclusion that previous approval was given to the making of the rules. In any case in a subsequent decision of this Court in Mohammed Bhakar Ors. v. Krishna Reddy Ors. 2 , it was explained that generally the remarks like that companytained in Raghavendra Raos case were number meant to lay down the proposition companytended for namely that the previous approval of the Central Government was number required for prescribing departmental examinations as a qualification for promotion. Any rule which affects the promotion of a person relates to his companydition of service and therefore unless there be the approval of the Central Government in terms of proviso to sub-sec. 7 of Sec. 115, a rule which lays down the passing of certain departmental examination as a companydition for promotion of a person who was an allottee to the new State of Mysore would be in violation of sub-sec. 7 of Sec. 115. There is in our view numberforce in the companytention urged by the Appellant before us that the rules of 1960 made by the Punjab Government must be deemed to have received the previous approval of the Central Government. The proviso to sub-sec. 7 of Sec. 115 is clear and categorical and therefore previous approval must number be presumed but must be either categorically given or that approval becomes unmistakably apparent from the companyrespondence between the State Governments and the Central Government. One other ground upon which the petitioners case does number merit acceptance is that his specific prayer in the Writ Petition was that under the rules he be deemed to have been companyfirmed as Superintendent from 17-10-66. The learned Advocate General for the State of Punjab has stated before us that since the Judgment of the High Court and Government has granted the prayer AIR 1965 SC 136. Services Law Reporter Vol. IV 1970 p. 768. of the Appellant and has companyfirmed him as Superintendent from 17-10-66 The appellant however is number satisfied and wants the orders giving the Respondent 4 the deemed date quashed. Apart from this claim being unfair and unjust particularly having regard to the fact that the appellant is trying to canvass all kinds of technical companytentions which art-, unwarranted in order to project his seniority over Respondent 4 who is admittedly senior to him, the direction of the Central Government and those of the State Government in implementation of those directions, establish the seniority of the 4th Respondent over the Appellant. The directions to which we have referred show that whatever promotions were made, have been made on the basis of the provisional gradation list prior to 27-2-6 1. Though they should number be disturbed, the claims of officers for future promotion on the basis of seniority determined in accordance with the principles stated therein was number to be prejudiced namely that promotions made after 27-2-61 on the basis of the provisional gradation list would be reviewed to the extent necessary to give effect to the claim of officers who are senior in the final gradation list to the officers who have been promoted and wherever applicable these directions should be treated as being without prejudice to the principles of promotion on merit. We have already dealt with the companytentions that the Respondent 4 was denied promotion because he was found unfit and therefore the appellant and others must be deemed to be promoted out of seniority because of their merit. There is therefore numbervalidity in the submission that Respondent 4 cannot be given a deemed date of companyfirmation either as a Deputy Superintendent or as officiating Superintendent. In fact we are informed by the learned Advocate General that numberinjustice has been done to the Appellant because even his grouse that if he had got his seniority he would have been attached to the Inspector General and would have got Rs. 50/- as allowance or special pay is numberlonger available to him because he is number occupying that post. It is also pointed out to us that the highest promotion that the Appellant or Respondent 4 can expect to have in the service is, the post of Superintendent which both he-and Respondent 4 are occupying. If either of them aspire to any post in a higher service that will number be determined by their inter se but on a selection basis depending upon the respective merits. We only refer to this to indicate that even the sense of injustice which the Appellant appears to suffer from has numberjustification. The appeal is accordingly dismissed but in the circumstances without companyts.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 830 of 1993. From the Judgment and Order dated 6.4.87 of the Allahabad High Court in Civil Misc. W.P. No. 20544 of 1986. Markandeya for the Appellant Pankaj Kalra for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. The appeal is directed against the judgment and order of a Division Bench of the Allahabad High Court allowing Writ Petition 20544 of 1986 with certain directions. The first respondent Gem Cap India Pvt. Ltd. is a private limited companypany. Second respondment is its Managing Director. At the request of the respondents, the appellant, U.P. Financial Corporation, sanctioned a loan of Rs. 29.70 lakhs. The terms and companyditions of loan and the manner of repayment of the loan are companytained in the agreement and hypothecation deeds executed in 1981. Suffice it to numbere that loan was repayable in certain specified instalments alongwith interest. A sum of Rs. 26, 29, 578 was released to the respondents. The first respondent went into production in December 1982. Within a few months i.e., in March 1983 its operations ceased. By an order dated February 21, 1984 the first respondent-unit was declared a sick unit. The respondents did number make any repayment as stipulated in the agreement and hypothecation deeds whereupon the Corporation took steps to take over the unit under Section 29 of the State Financial Corporations Act, 1951 for recovering an amount of Rs. 38.57 lakhs due to it by that date vide numberice dated July 10, 1984. Then started a series of Writ Petitions by the respondents, all designed to stall the appellant from taking over and or recovering the amount due to it. It is number necessary to trace the companyrse of the several writ petitions except the one from which the present appeal arises. Writ Petition 20544 of 1986 was filed questioning the taking over of the first respondent-unit by the appellant- Corporation under Section 29 of the Act and for a direction to the appellant to reschedule the repayment of debt in accordance with the earlier orders of the High Court. The writ petition has been allowed with the following directions Having regard to the discussion made above we direct the U.P. Financial Corporation 1 to companysider expeditiously the resolution dated 29.1.1986aimed at the rehabilitation of the industrial companycern in question in the light of the feasibility report of the U.P. Industrial Consultants Ltd. the Financial aid forthcoming from the Bank of Baroda and other financial institutions and the reports of the managing director of the companyporation dated 18.12.85 and 29.1.1986 2 to restore back possession of the unit to the petition No. 1 forthwith. The numberice dated 11.6.1986 issued by the Corporation under Section 29 of the State Financial Corporation Act, 1951 shall, however, remain alive it being open to the Corporation to proceed further in pursuance thereof in case the rehabilitation deal is given a fair trial but does number bear fruit. The petition is allowed accordingly with numberorder, however, as to companyts. With great respect to the Learned Judges who allowed the writ petition we feel companystrained to say this a reading of the judgment shows that they have number kept in mind the wellrecognised limitations of their jurisdiction under Article 226 of the Constitution. The judgment reads as If they were setting as an Appellate Authority over the appellate- Corporation. Not a single provision of law is said to have been violated. The exclusive companycern of the companyrt appears to be to revive and resurrect the respondent-Company, with the aid of public funds, without giving any thought to the interest of public financial institutions. The approach is the Corporafion is supposed to act in the best interest of the industrial companycern with the object primarily to promote and advance the industrial activity without, of companyrse, undue involvement or risk of its financial companymitments It needs numberemphasis to say that the Corporation is companyceived .Regional Development Bank with the principal object to accelerate the industrial growth in the State by providing financial assistance mainly to small and smaller of the medium scale industries. The approach has to be business like in companyformity with the declared policy of the State Govt. If the unit is potentially viable or such as maY be capable of being rehabilitated, it would deserve being administered proper treatment and number lead to its liquidation. Here was a companypany which drew substantial public funds and became sick within three months of its going into production. One of the main reasons for its sickness appears to be the inter-necine fight between the two groups companytrolling the Company. The unit was closed. It was number paying a single pie in repayment of the loan neither the principal number the interest. Already a huge amount was due to the appellant. There was numberprospect of its recovery. And yet other financial companyporations were being asked by the companyrt, four years after its closure, to sink more money into the sick unit. Though a passing reference is made to the financial risk of appellant. this companycern was number translated into appropriate directions. The Corporation was number allowed to sell the unit when it wanted to in 1984-85. Now, it is difficult to sell it, because it has been lying closed for about 8 years and more. The machinery must have become junk. While the Company companyld number be revived, the appellant-corporation number stands to lose more than a crore of rupees all public money in this one instance. To companytinue the factual narration against the judgment of the Allahabad High Court aforesaid dated April 6, 1987 the appellant filed this appeal and on May 8, 1987 this Court while issuing numberice on the SLP directed stay of operation of the judgment of the High companyrt. After the respondents filed a companynter affidavit this Court made the following order on September 18, 1987 Stay made absolute with the direction that there shall be numbersale of the industrial unit. Hearing expedited. To be heard alongwith Civil Appeal No. 568 of 1987. The S.L.P. companyld number be heard finally though it was posted for hearing on certain dates. On November 13, 1991, the companynsel for the respondents made an offer which is recorded in the order of that date. It reads This matter is adjourned for 11.12.91. Mr. Shanti Bhushan, Sr. Adv., suggests that in view of the lapse of time of more than 5 years the position has changed and the Corporation should number companysider the feasibility of taking over the assets in liquidation of the dues by making an assessment and companysider relieving the directors from their personal responsibilities to the companyporation and the other creditors. The subsequent order dated December 12, 1991, however, shows that the appellant-corporation refused to bite the bait. The amount due to it had risen to over a crore of rupees by number. Whereupon, this Court passed the following order The appellant in companysultation with the other creditors is permitted to put-up the industrial undertaking of the firstrespondent for sale. It may do so either by public auction or by inviting tenders or by an companybination of both. It may proceed to do so within a period of two months from today. While permitting the appellant to take steps for the sale, we make it clear that before accepting the offers, the appellant should obtain prior permission of this Court. List this matter after 10 weeks, i.e., in the first week of March, 92. It is clear as to why the unit companyld number be sold . On March 13, 1992, this Court passed the following further order We have heard learned companynsel on both sides. Apart from the merits of the issues raised, it appears to us that the present impasse is to numberodys advantage. The dispute has to be resolved in some meaningful way. We accordingly direct the respondent-Company and Sri K.P. Chaturvedi, who claims to be incharge of the affairs of the Company, to companyfirm in writing to the petitioner-Corporation within three weeks from today that they unconditionally agree to settle the claims of the. Financial Corporation at a figure which would represent the principal amount said to be Rs. 26.30 lacs and interest thereon from the inception at 13.5 per year with half yearly rests calculated upto 25.7.1986. If such an offer is made, the Financial Corporation will assess the merit and acceptability of that offer and take within six weeks thereafter, an appropriate decision including the manner in which and the period over which the payment should be companypleted, and if the Financial Corporation agrees to grant time for payment, the rate of interest for the deferred period. The decision taken by the Corporation will be placed before this Court. If, however, any offer, as indicated above, is number companymunicated by the companypany or Sri Chaturvedi within a period of three weeks from today, then the Financial Corporation shall be at liberty to initiate, with numberice to the respondents, steps for the sale by public auction of the subjectmatter of the security in its favour and to treat and hold the proceeds of sale as substituted security in the place of the subject-matter of the security, subject to the final result of this L.P. Call this matter in the 3rd week of May, 1992. Pursuant to the said order the second respondent, Managing Director of the first respondent-Company merely wrote a letter addressed to the appellant-Corporation, to the following effect We, herewith, attach a photo companyy of the captioned order which is self explicit. We, however, unconditionally agree to abide with the directions given to us by the Honble Supreme Court. Further, as the Corporation is aware that the Unit Company as well as The Registered Office of the Company, both are in possession of the Corporation, we shall feel obliged if you kindly companymunicate your views to us at the below given address. It is evident that the letter written by the second respondent is number in terms of the order to this Court dated March 13, 1992. No figure is mentioned-nor is it mentioned as to how and in what manner the said huge debt is sought to be repaid by the respondents. Evidently, the appellantcompanyporation companyld number pay any heed to such a letter. When the matter came before this Court the second respondent appeared in-person stating that he has discharged his advocate and that he will argue the matter himself. The matter again came up before us on 19.2.1993 when we heard the appellants companynsel and the second respondent in-person. We allowed the appeal stating that the reasons would follow. There are the reasons for the order. It is true that the appellant Corporation is an instrumentality of the State created under the State Finance Corporation Act, 1951. The said Act was made by the Parliament with a view to promote industrialisation of the States by encouraging small and medium industries by giving financial assistance in the shape of loans and advances, repayable within a period number exceeding 20 years from the date of loan. We agree that the Corporation is number like an ordinary money-lender or a Bank which lends money. It is a lender with a purpose the purpose being promoting the small and medium industries. At the same time, it is necessary to keep certain basic facts in view. The relationship between the Corporation and the borrower is that of creditor and debtor. The companyporation is number supposed to give loans once and go out of business. It has also to recover them so that it can give fresh loans to others. The Corporation numberdoubt has to act within the four companyners of the Act and in furtherance of the object underlying the Act. But this factor cannot be carried to the extent of obligating the Corporation to revive and resurrect every sick industry irrespective of the companyt involved. Promoting industrialisation at the companyt of public funds does number serve the public interest it merely amounts to transferring public money to private account. The fairness required of the Corporation cannot be carried to the extent of disabling it from recovering what is due to it. While number insisting upon the borrower to honour the companymitments undertaken by him, the Corporation alone cannot be shackled hand and foot in the name of fairness. Fairness is number a one way street, mote particularly it? matters like the present one. The above narration of facts shows that the respondents have numberintention of repaying any part of the debt. They are merely putting forward one or other ploy to keep the Corporation at bay. Approaching the Courts through successive writ petitions is but a part of this game. Another circumstance. These Corporation are number sitting on King Solomons mines. They too borrow monies from Government or otherfinancial companyporation. They too have to pay interest thereon. The fairness required of it must be tempered nay, determined, in the light of all these circumstances. Indeed, in a matter between the Corporation and its debtor, a writ companyrt has numbersay except in two situation 1 there is a statutory violation on the part of the Corporation or 21 Where the Corporation acts unfairly i.e., unreasonably. While the former does number present any difficulty, the latter needs a little reiteration of its precise meaning. What does acting unfairly or unreasonably mean? Does it mean that the High Court exercising its jurisdiction under Article 226 of the Constitution can sit as an Appellate Authority over the acts and deeds of the companyporation and seek to companyrect them ? Surely, it cannot be. That is number the function of the High Court under Article 226. Doctrine of fairness, evolved in administrative law was number supposed to companyvert the writ companyrts into appellate authorities over administrative authorities. The companystraints self-imposed undoubtedly of writ jurisdiction still remain. Ignoring them would lead to companyfusion and uncertainty. The jurisdiction may become rudderless. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is companyplementary to the principles of natural justice which the Quasi-Judicial Authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak Ors. v. Union of India Ors., AIR 1970 S.C. 150. Even so the extent of judicial scrutiny judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasijudicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities they have a certain amount of discretion available to them. They have a right to choose between more than one possible companyrse of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred Lord Diplock in Secretary of State for Education Tameside Metropolitan Borough Counsel, 1977 AC 1014 at 1064 . The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that numberreasonable person would have taken that action, can the Court intervene. To quote the classic passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1948 1 KB at 229. It is true the discretion must be exercised reasonably. Now what does than mean ? Lawyers familiar with the phraseology companymonly used in relation to exercise of statutory discretions often use the word unreasonable in a rather companyprehensive sense. It has frequently been used and is frequently used as a general description of the things that must number be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to companysider. He must exclude from his companysideration matters which are irrelevant to what he has to companysider. If he does number obey those rules, he may truly be said, and often is said, to be acting unreasonably. Similarly, there may be something so absurd that numbersensible person companyld ever dream that it lay within the powers of the authority. While this is number the occasion to examine the companytent and companytours of the doctrine of fairness, it is enough to reiterate for the purpose of this case that the power of the High Court while reviewing the administrative action is number that of an appellate companyrt. The judgment under appeal precisely does that and for that reason is liable to be and is herewith set aside. On behalf of the appellant reliance has been placed upon the decision of this companyrt in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation Ors., 1992 2 J.T. We have perused the decision. That was a case where the debtor was anxious to pay off the debt and had been taking several steps to discharge his obligation. On the facts of that particular case it was found that the companyporation was acting reasonably. In that companytext certain observations were made. The decision also deals with the procedure to be adopted by the Corporation while selling the units taken over under Section 29. That aspect is number relevant in this case. We are, therefore, of the opinion that the said decision is of numberhelp to the appellant herein. The appeal is accordingly allowed. The respondents shall pay the .costs of the appellant assessed at Rs. 10,000 companysolidated.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1109 of 1973. Appeal by Special Leave from the Judgment and order dated the 10th March., 197 of the Punjab and Haryana High Court in L.P.A. No. 714 of 1970 and Civil Appeals Nos. 1411-1314, 872, 873, 1369 and 1582 of 1974. S. Nariman In C.As. Nos. 1109 and 1582 , Harbans Singh in C.A. No. 1109/73 and O. P. Sharma, In all the appeals , for the appellants. Hardyal Hardy, S. K. Mehta and M. Qamarrudin, for respondents No. 1 8. C. Mahajan, Urmila Sirur, S. C. Agarwala and V. J. Francis, for respondents Nos. 2-5, 9-12 and 15-21 in C.A. No. 1109/73 . Urmila Sirur, for respondents 2-7, 12, 13, 15-18, 20-22 26, 27 30, 32-36, 38, 41, 44-46, 50-57 59-62 In C.A. Nos. 1411-1412/ 74 and for all the respondents in In C.A. No. 1414/74 Except Respondent No. 113 and respondents Nos. 1. 3-16 and 18-23 In C.A. No. 1369/74 . F. C. Mahajan and Urmila Sirur, for respondents Nos. All respondents in C.A. No. 872/74 , and respondents Nos. 1, 2, 4-54, 5681, 83 and 85, In C.A. No. 873/74 and respondents Nos. 1-214 In C.A. No. 1582/74 . Balak Ram, for respondent No. 245 In C.A. No. 1582/74 . G The Judgment of the Court was delivered by RAY, C.J.-These appeals are by special leave from the judgment dated 10 March, 1972 of the Punjab and Haryana High Court. The respondents were teachers in the former State of Pepsu. On 1 November, 1956 the former State of Pepsu merged in the State of Punjab. These teachers claim the revised scale of pay as well as the posts of Masters. Their claims are based on these grounds. First they have taken the Degrees in Bachelor of Teaching or its equivalent. Second, the letter dated 23 July, 1957 which became effective from 1 May, 1957 entitles them to the revised grade if they took the Degrees in Bachelor of Teaching or its equivalent. Third, the letter dated 7 November, 1958 entitles the respondents to the posts of Masters to the extent of 25 per cent of the vacancies. The letter dated 23 July, 1957 is addressed by the Secretary to the Punjab Government. The letter is on the subject Revision of Scales of pay of low-paid Government servants. The letter states that after carefully companysidering the recommendations made by Pay Revision Committee it has been decided that the existing scales of pay of certain categories of posts should, with effect from 1 May, 1957, be revised as shown therein. It is, thereafter stated that it has been decided that all teachers according to their qualifications should placed in the following two broad categories Category A A. B.Sc. B.Com. B.Sc. Agriculture and B.T./ Diploma in Physical Education Diploma in Senior Basic Training. Category B companysists of four groups. The first group companysists of Matriculates with Basic Training including Junior Teachers . The second group companysists of Junior School Teachers including Assistant Mistresses with B.A. Inter- Matric Plus J.A.V. Training . Groups III and IV are also mentioned which are number relevant for the purposes of these appeals. Thereafter the crucial portions in the letter are these. For category A the scale of pay is Rs. 110-8-19/10- 250 with a higher start for M.A. Or M.Sc. as at present. The existing per centage of posts fixed by Government for the scales of Rs. 110-8-190/ 10-250 and Rs. 250-10-300 should remain unchanged at 85 per cent and 15 per cent respectively. It may be stated here that the scale of pay of Head Masters being item 1 in Appendix is Rs. 250-10-350. The scale of pay of Masters, Science Masters, Agriculture Masters, Clerical and Commercial Master and Assistant District Inspector of Schools is Rs. 250-10-300. The scale of pay of Second Master, Masters, Physical Training Masters Assistant District Inspector of Schools. Agriculture Masters, Clerical and Commercial Masters and Science Masters being item 2 is Rs. 110-8-190-10-250 with a start of Rs. 126/- to M.A. M.Sc. M.III B T. and Rs. 150/- to M.A./ Sc. M.Ed. 11 B.T. and Rs. 150/- to M.A. M.Sc. M.Ed. B.T. The second letter on which the respondents relied is. dated 7 November 1958. This letter is from the Deputy Director Schools to the Inspector of Schools. The subject is Promotion of the so-called unadjusted B.A. B.T. B.Ed., teachers to the posts of Master on Rs. 110/250 grade It is stated there that it has been decided that 25 Per cent posts of B.T. B.Ed. Masters in Rs. 110-250 grade should be filled by promotion from amongst the teachers working in the lower grade who have passed the B.A B.T. B.Ed. Examinations. The selection is to be made on the basis of seniority-cum-merit. Two of the relevant rules in Punjab Educational Service Class III A school Cadre Rules, 1955 which were in force with effect from 23 May, 1957 are numbered 7 and 10. Rule 7 speaks of the method of recruitment. The methods of recruitment are a by direct appointment, or b by transfer of an official from other Services or posts of Government in the Education Department of any Government in India, or c by promotion from lower grades in the service. The manner of appointment shall be strictly by selection etcetera as mentioned there. Rule 10 states that members of the service will be entitled to such scales of pay as may be authorised by the Government from time to time. The scales of pay in force are specified in Appendix A against each post. Appendix A is an appendix to the Rules. This Appendix mentions Masters as item No. 2. The scale of pay given in item No. 2 for the posts of Masters, who are ordinary graduates with degree of Bachelor of Teaching or equivalent thereof is Rs. 110-8-190/10-250 whereas for M.As. and M.Scs. with the degree of Bachelor of Teaching or Masters of Teaching or their equivalent, the start of the grade is higher as already mentioned. The letter dated 23 July, 1957 revised the scales of pay with effect from 1 May, 1957. These appeals companycern teachers who are in category A. The revised scale given to teachers in category A is Rs. 110-8-190/10-250. Any teacher who would satisfy the test mentioned in category A would be entitled to the scale of pay. Counsel on behalf of the State companytended that there was number to be a mass increase of all teachers to that grade of pay but the letter dated 23 July, 1957 meant that a teacher who passed Bachelor of Teaching examination would be entitled to be appointed a Master and on being so appointed would be entitled to the scale of pay. With regard to the letter dated 7 November 1958 which stated that 25 per cent posts of B.T. B.Ed. Masters in Rs. 110-250 grade should be filled by promotion from amongst the teachers who were in lower grade, companynsel for the State companytended that teachers who were qualified by possessing T. B.Ed. degrees would be entitled to get 25 per cent of the posts provided the respective posts according to their subject companybination were vacant. Rule 10 entitles the teachers to such scales of pay as may be authorised by the Government from time to time. The letter dated 23 July, 1957 shows that teachers who possess the degree of Bachelor of Teaching or its equivalent on 1 May 1957 will be entitled to scales of pay mentioned therein. Those who will pass the examination of Bachelor of Teaching thereafter will be entitled to their revised scale of pay with effect from the date they pass the examination. The companytention of the State that there was number to be a mass increase of scale of pay is unsound. Teachers who possessed degrees became entitled to scales of pay according to category A. The High Court rightly referred to the letter of the Secretary of the Department dated 24 September, 1957 that teachers holding B.A., T. B.A., B.Ed. qualifications would hence-forth be placed in category A. The High Court rightly came to the companyclusion that the scale of pay of Rs. 110-250 would be effective either from the date when the teachers would pass the examination of Bachelor of Teaching or its equivalent or 1 May, 1957, whichever is later. The High Court, however, gave the teachers the scales of salary companyfined to a period of 3 years and 2 months companynting back from the date of the presentation of the writ petition. In other words, the High Court did number allow the teachers any claim prior to 1967. The letter dated 7 November, 1958 was necessary because in spite of the revised grade of Rs. 110-250 having been granted to Bachelor in Teaching or equivalent thereof, they were number being appointed by process of promotion to the posts of Masters. The letter stated that selection is to be made on the basis of seniority-cum-merit, due regard being paid to good reputation regarding character, popularity among students and parents and capacity to maintain discipline. The respondents claimed that according to the letter those of them who were Bachelor in Teaching or Bachelor in Education were entitled to be appointed to the posts of Masters. The teachers companyld number claim vacancies by promotion exceeding 25 per cent. Their claim for appointment by promotion had to take into companysideration number merely their seniority but also their merit. This percentage of 25 as fixed by the letter is companyered by Rule 7 ii and the principle of selection for appointment is companyered by Rule 7 clause iii . Therefore, the earlier letter dated July 23, 1957 fixed the scale of pay on the basis of academic qualifications. The subsequent letter dated 7 November, 1958 recognised the right of promotion to the posts of Masters to the extent of 25 per cent. The High Court said that the companytention of the State that the teachers companyld number be companysidered for promotion unless they satisfied the companydition of subject companybination namely, that if they were ordinary graduates with training qualifications, they must have studied two out of the four subjects, namely, History Geography, Economics and political Science is number supported by the letter dated 7 November, 1958. The High Court rightly said that the letter does number speak of any limitation of subject companybination for promotion. Some of the teachers were from time to time promoted to the posts of Masters but never companytinuously beyond a period of six months. After companypletion of six months, there was a break to avoid companytinuity in service for the posts of Masters beyond six months. The State companytended that the teachers companyld number be companysidered for promotion unless the Board were satisfied that the teachers if ordinary graduate with training qualificationsmust have also studied two out of four subjects of History, Geography, Economics and Political Science. The teachers on the other hand companytended that once the State Government had taken a decision as embodied in the letter dated 7 November, 1958 the policy of number allowing the teachers to companytinue beyond six months on temporary basis was nullifying the letter and spirit of the decision of the letter dated 7 November, 1958. The teachers also companytended that the promotion of teachers to Masters is companypletely independent of any companysideration like the companybination of subjects. The High Court rightly held that letter dated 7 November, 1958 was subject only to two limitations. One was that teachers companyld number claim more than one fourth of the vacancies of the posts of Masters and the other was that the claim by way of promotion would be companysidered by the appointing authority on the basis of seniority-cum-merit. The High Court rightly held that the letter dated 7 November, 1958 was number subject to the companydition of subjects companybination being fulfilled. There are three categories of teachers-Science Masters, Mathematics Masters and Social Studies Masters. No companydition of companybination of subjects can be read into the letter of 7 November, 1958. The second companyclusion of the High Court is companyrect that the teachers were to be treated as serving in that scale of pay companytinuously and number on six months basis. The third companyclusion which the High Court arrived is companyrect that the teachers were to be companysidered for appointment to the posts of Masters to the extent of 25 per cent quota as recognised for their category of teachers on the basis of seniority-cum-merit without being subjected to the companydition of subject companybination. The judgment of the High Court is affirmed. The appeals are dismissed. The respondents will be entitled to one set of companyts.
We have heard learned companynsel for the petitioner. Notification under Section 4 1 of the Land Acquisition Act, 1894 for short, the Act was published on July 11, 1953. Successive declaration under Section 6 came to be published in the year 1955-56.
J. Divan, C.J. In this case, at the instance of the assessee, the following two questions have been referred to us for our opinion Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that there was a change in the Constitution of the firm within the meaning of the said expression under Section 187 of the Income-tax Act, 1961, and, accordingly, the provisions of Section 188 were number applicable ? Whether, on the facts and in the circumstances of the case, the decision reached by the Tribunal, namely, that the income for the two periods November 3, 1967, to January 22, 1968, and January 23, 1968, to October 21, 1968, was required to be clubbed and assessed as a whole for the assessment year 1969-70 was companyrect in law ? The facts leading to this reference are as follows. The relevant assessment year is 1969-70, the companyresponding previous year being Samvat year 2024, that is, November 3, 1967, to October 21, 1968. The assessee firm is a registered partnership firm and it deals in cloth. For the assessment year 1969-70, the firm had filed two returns of income for two periods falling within Samvat year 2024 relevant to the assessment year 1969-70. The first return was for the period from November 3, 1967, to January 22, 1968, showing an income of Rs. 24,147. The second return was for the period January 23, 1968, to October 21, 1968, showing a total income of Rs. 70,251. In this case, the original deed of partnership was executed on June 24, 1963, and, under this deed, the partnership was said to have companye into existence with effect from April 15, 1963. The firm was carrying on business in the name of Messrs. Amritlal Nihalchand. It had two partners, Raichand Chunilal Daxini and Chaturdas Nihalchand Tanna. In this original partnership which is also referred to as the old firm, two minors, Amritlal Nihalchand Tanna and Pratapbhai Sagalchand Chandan, were admitted to the benefits of the partnership. Amritlal Nihalchand Tanna attained majority on June 23, 1968. It is the case of the assessee that, with effect from January 22, 1968, the old firm was dissolved and the business of the old firm was taken over by another firm of the same name, namely, Messrs. Amritlal Nihalchand. The new firm also took over all the debts and liabilities together with the stock and tenancy rights of the old firm. In the old firm, the shares of the partners were Raichand Chunilal 25 Chaturdas Nihalchand Tanna 22-1/2 Amritlal Nihalchand Tanna 15 share in the benefits of the partnership Pratapbhai Sagalchand 37-1/2 share, he also being a minor. In the new partnership firm which came into existence, Raichand Chunilal retained his original share of 25, Chaturdas Nihalchand got 7.5 per cent. share instead of 22-1/2 per cent., Amritlal Nihalchand got 20 per cent. share as a partner, Pratapbhai Sagalchand retained his benefits of the partnership to the extent of 37-1/2 per cent. and another minor, Mahesh Kumar Prabhudas, with a share in the benefits of the partnership to the extent of 10 per cent. was admitted to the benefits of the partnership. It appears that a new deed of partnership was executed on January 24, 1968, by the three adult partners of the new firm, namely, Raichand Chunilal Daxini, Chaturdas Nihalchand Tanna and Amritlal Nihalchand Tanna and the partnership deed stated that the old partnership firm was dissolved by the partners with effect from the end of January 22, 1968, and the new firm was companystituted with effect from January 23, 1968. In the recital clause in the new partnership deed in terms, it was mentioned that, with effect from January 22, 1968, the old partnership business was closed, the old partnership firm was dissolved and brought to an end and all its rights, liabilities, stock, tenancy rights and the right to use the name of the firm had been taken over by the new firm in which there were three adult partners and the partnership deed of January 24, 1968, mentioned that the new firm had companymenced business with effect from January 23, 1968. Under these circumstances, the firm filed two returns for the two separate periods, namely, from the companymencement of the Samvat year, that is, November 3, 1967, to January 22, 1968, so far as the old firm was companycerned and the other return being for the period January 23, 1968, to October 21, 1968, for the period in which the new firm had functioned as a business entity. It may also be mentioned that intimations that the old firm was dissolved and the new firm had been brought into existence were sent to the Registrar of Firms functioning under the Indian Partnership Act and also to the Income-tax Officer. Along with the returns, an application in Form No. 12 for declaration regarding the companytinuance of the firm as well as an application for registration under Form No. 11 had been sent. The Income-tax Officer was of the view that the new firm had taken over the business of the old firm as a going companycern and even though the income-tax liabilities of the old firm were payable by the partners of the old firm, the tax payable by that firm was actually debited to the profit and loss account of the new firm. On these facts, he held that this was merely a case of a mere change in the Constitution of the firm and number a dissolution of the previous firm and he made a single assessment clubbing the income of the two periods together in the hands of the new firm. He also passed an order under Section 185 of the Income-tax Act, 1961, granting registration to the new firm for the assessment year 1969-70. Against the decision of the Income-tax Officer, the assessee took the matter in appeal and the Appellate Assistant Commissioner accepted the companytention of the assessee regarding the dissolution of the old firm and held that the Income-tax Officer had erred in clubbing the income for both the periods together and directed the Income-tax Officer to make separate assessments in respect of these two periods. Against the decision of the Appellate Assistant Commissioner, the matter was taken in appeal before the Income-tax Appellate Tribunal by the Revenue. On behalf of the Revenue, it was companytended that this was a case of a mere change in the Constitution as companytemplated by Section 187. In the alternative, it was urged that even if it was assumed that this was a case of succession, it would be governed by Section 187 of the Act and number by Section 188. The Revenue companytended before the Tribunal that the decision of the Bombay High Court in Bhausa Ganusa Pawar and Co. v. CIT was number applicable to the facts of the present case and that the decision in R. B. Jessa Ram Fateh Chand v. CIT would govern the facts of the case. The Revenue also relied upon the decision in Excel Productions v. CIT . Even apart from these derisions, the Revenue urged before the Tribunal that the provisions of Section 187 were mandatory and the expression change in companystitution as provided in Section 187 would be applicable to the facts of the case. The Tribunal came to the companyclusion that the assessees case clearly fell within the expression change in companystitution as defined in the Act and the fact that the new firm had made some averments in the partnership deed would number make any difference to the requirements of the law which were quite clear on the point. The Tribunal, therefore, held that the provisions of Section 188 were number applicable but the assessees case was governed by the provisions of Section 187 of the Act. The Tribunal, therefore, set aside the order of the Appellate Assistant Commissioner and restored the order of the Income-tax Officer. Thereafter, at the instance of the assessee, the questions hereinabove set out have been referred to us for our opinion. We find that the point which arises for our companysideration in this case is number companyered by a decision of this High Court in Addl. CIT v. Harjivandas Hathibhai . This High Court has pointed out in Harjivandas Hathibhais case 1977 108 ITR 517 that the decision of the Allahabad High Court in R. B. Jessa Ram Fateh Chand 1972 81 ITR 409 has been overruled by the decision of a Full Bench of the same High Court in Dahi Laxmi Dal Factory v. ITO 1971 103 ITR 517, After companysidering the legal position, it was held that Section 187 of the Income-tax Act does number introduce any change in the relationship between the parties and does number introduce a change from the general law of partnership as laid down by the Indian Partnership Act. It was companytended on behalf of the Revenue before us, as has been companytended in the instant case that, in view of the provisions of Section 187 and particularly Sub-section 2 of that section, even if there is a dissolution of an old firm and some of the partners companytinue in the new firm, by virtue of Sub-section 2 of Section 187, there is, in the eye of the law, particularly the income-tax law, a mere companytinuation of the firm and number a case of succession of one firm by another. After examining the different decisions on the point and the provisions of the Partnership Act, this High Court 1977 108 ITR 517 agreed with the summary of the legal position as set out by Gulati J. in the Full Bench decision 1976 103 ITR 517 All and the summary is to the following effect see 1977 108 ITR 517, 525 To sum up, the legal position that emerges is that Section 187 applies only where a firm is reconstituted in accordance with Sections 31 and 32 of the Indian Partnership Act, namely, when a new partner is taken or an existing partner retires with the companysent of all the partners or without their companysent if the companytract of partnership so provides. But, where a firm is dissolved either by agreement of the partners or by operation of law and another firm takes over the business that will be a case of succession governed by Section 188 of the Act even though some of the partners of the two firms are companymon. This High Court has also pointed out see 1977 108 ITR 517, 526 Even apart from the decision of the learned judges of the Allahabad High Court in the Full Bench decision referred to above, it is obvious on general principles that unless the words of the Income-tax Act companypel us to do so, it would number be companyrect to depart from the well-known principles of partnership law. The partnership law companytemplates retirement of a partner and even though a partner retires, the firm companytinues as before. What is meant by a change in the Constitution of the firm is companying in of a new partner with the companysent of all the existing partners or by the retirement of a partner with the companysent of all the partners in such cases there is a mere change in the, Constitution of the firm and numberhing more. The same firm companytinues as before. The question of dissolution of a firm either by operation of law or by act of parties is a different thing altogether. When a firm is dissolved, the old relationship companyes to an end and a new relationship companyes into existence and if the succeeding partnership firm companytinues the old business, then, there is succession of one firm by another as companytemplated by Section 188. Sub-section 2 of Section 187 merely specifies two kinds of changes in the Constitution of the firm. Clause a of Sub-section 2 of Section 187 refers to the companytinuance of the firm on one or more of the partners ceasing to be partners or one or more new partners being admitted. It deals with cases of retirement of partners and introduction of new partners but the firm under the Indian Partnership Act would companytinue in such a case. Therefore, all that Sub-section 2 of Section 187 points out is that with the retirement of one or more of the partners, so long as one of the old partners companytinues and with the introduction of new partners so long as one of the old partners companytinues, there is a mere change in the Constitution of the firm. Again, under Clause b of Sub-section 2 of Section 187, by a mere variation in the respective shares of the partners or shares of some of the partners, there is numberchange in the firm itself. The old firm still companytinues and that is emphasised by Clause b of Sub-section 2 of Section 187. For the reasons set out in the decision in Addl. CIT v. Harjivandas Hathibhai , it must be held that the view taken by the Tribunal in the instant case was number in accordance with law. The facts are number in dispute and cannot be in dispute. The major partners, namely, Raichand Chunilal Daxini and Chaturdas Nihalchand Tanna who were the major partners in the old firm, agreed to dissolve the firm and that agreement of the two partners in the firm which was a partnership at will, as pointed out by the deed of partnership dated June 24, 1963, annexure J to the statement of the case, and in view of the recital in the deed of partnership dated January 24, 1968, annexure L to the statement of the case, it is obvious that the major partners of the said firm had agreed to dissolve the old firm and the same partners, along with Amritlal Nihalchand, who had in the meantime attained majority, agreed to start the new firm with effect from January 23, 1968. It is true that, subsequently, the two adult partners, Raichand Chunilal Daxini and Chaturdas Nihalchand Tanna executed a deed of dissolution dated February 18, 1968, stating that that firm had been dissolved by them with effect from January 22, 1968, but merely because the decision to dissolve taken in the past came to be recorded subsequently in the form of a deed of dissolution, it does number mean that there was earlier dissolution of the firm. Moreover, as Mr. Thakore for the assessee has pointed out, the intimations had been sent to the Registrar of Firms about the dissolution of the old firm and also to the Income-tax Officer about the dissolution of the old firm and hence the dissolution of that firm can be safely accepted. Even Mr. Kaji for the Revenue has number urged that there was numberdissolution of the firm. All that he companytends is that, in spite of the dissolution of the firm, by virtue of Section 187, Sub-section 1 , of the Act, it must be held that there was a mere change in the Constitution of the firm and that the old firm had companytinued and so far as the income-tax law was companycerned, there was numbersuccession within the meaning of Section 188. For the reasons stated above, this companytention on behalf of the Revenue must be rejected. It must, therefore, follow that the view of the Tribunal about there being a mere change in the Constitution of the firm within the meaning of Section 187 was number companyrect and it must be held that this is a case of succession within the meaning of Section 188 and the case did number fall under the provisions of Section 187 of the Act. The view taken by the Tribunal that there was a change in the Constitution of the firm within the meaning of the said expression under Section 187 of the Act and accordingly the provisions of Section 188 were number applicable was number companyrect. It is true, as has been pointed out before us, that Section 188 mentions that it would apply when the case is number one companyered by Section 187 but once it is found that numberdeparture from the provisions of the Indian Partnership Act is companytemplated by Section 187 of the Income-tax Act, 1961, it must follow that the instant case would number fall under Section 187 and, therefore, this being a case of succession of the old firm by the new firm, the case would be governed by Section 188. We, accordingly, answer the questions referred to us as follows Question No. 1. In the negative, that is, in favour of the assessee and against the Revenue. Question No. 2.
civil appellate jurisdiction civil appeal number. 54 to 73a of 1985 etc. from the judgment and order dated 9.10.1984 of the karnataka high companyrt in w.p. number. 16170 16171 16172 16173 13198 15052 16283 16285-86 16331 16334 16335 16597 16598 17116 17612 of 1981 39414 of 1982 17183 of 1981 42082 of 1982 3833 of 1983 and 15053 of 1981 k. sen. padmanabha mahle miss c.k. sucharita n.d.b. raju m. rangaswamy k.r. nagaraja b. krishna prasad miss malini poduval and r.b. datar for the appellants. r.l. iyenger m. veerappa and navin singh for the respondents. the judgment of the companyrt was delivered by singh j. these appeals and writ petitions involve two questions of law i whether rule 41-a of the karnataka cinemas regulations rules hereinafter referred to as the rules framed by the state government under section 19 of the karnataka cinemas regulations act of 1964 karnataka act 23 of 1964 hereinafter referred to as the act has been made for purposes of the act and ii whether rule 41-a places unreasonable restrictions on the appellants right to carry on their business of exhibiting cinematograph films in violation of article 19 1 g of the companystitution. the appellants petitioners hold licences for exhibiting cinematograph films in their cinema theatres under the act and the rules in form prescribed by the rules. the rules and conditions companytained in the licence form f do number prescribe any restriction on the number of shows of films which a licensee can exhibit in his theatre. companydition number 11 of the licence however provides that numbercinematograph exhibition shall companytinue after such time number later than 1.00 a.m. numbermally the cinema owners were holding four shows but later on they increased it to five shows in a day starting from 10 a.m. to 12 numbern 12 numbern to 3 p.m. 3 p.m. to 6 p.m. 6 p.m. to 9 p.m. 9 p.m. to 12 a.m. thus the cinematograph films were being exhibited companytinuously from 10 a.m. to mid-night which caused a number of problems. the state government in exercise of its power under section 19 of the act framed rule 41-a directing that numberlicensee shall exhibit more than four cinematograph shows in a day. rule 4 1-a is as under 41-a. number of shows permissible in a day no licensee shall exhibit more than four cinematograph shows in a day. in pursuance of rule 41-a the appellants were directed to exhibit cinematograph films for four shows only in a day. the appellants challenged validity of the aforesaid rule placing restriction on their right to exhibit cinematograph films before the high companyrt of karnataka by means of writ petitions under article 226 of the companystitution. the appellants companytended before the high companyrt that the restriction imposed by rule 41-a on the licensees requiring them number to exhibit more than four shows in a day was beyond the rule making power as the rule did number carry out the purposes of the act. it was further companytended that the rule placed unreasonable restriction on their fundamental right to carry on the business of exhibiting cinematograph films. the respondent state submitted before the high companyrt that the state government realised that on account of exhibition of five shows in a day in a cinema theatre it was number possible for the licensees to keep the theatres hygienically clean and reports were received that for want of time the licensees were number exhibiting approved films and slides required under the provisions of the act. the state government found that exhibition of five shows in a day was number companyducive to the health of the cine-goers and therefore it framed rule 41-a limiting the shows. it was companytended that the rule was intended for the regulation of the exhibition of cinematograph films in the licensed premises and was within the scope and purposes of the act. it was further pleaded before the high companyrt that the impugned rule 41-a was number violative of article 19 of the companystitution as it placed a reasonable restriction in the interest of general public as contemplated by article 19 6 of the companystitution. a division bench of the high companyrt heard the parties at length but there was difference of opinion between the two learned judges companystituting the bench of the high companyrt. s. puttaswamy j. held that the impugned rule was ultra vires as it was beyond the rule making power of the government under section 19 of the act. he further held that the rule placed unreasonable restrictions on the appellants right to carry on their business guaranteed to them under article 19 1 g of the companystitution. the learned judge held that the restriction placed by the rule 41-a was neither in the interests of the general public number it was reasonable. narayan rai kudoor j. in a separate judgment upheld the validity of the rule holding that the impugned rule carried out the purposes of the act namely the regulation of the exhibition of cinematograph films and the restriction placed by it was reasonable and in the interests of the general public. since there was difference of opinion between the two learned judges the matter was placed before m. rama jois j. who agreed with the opinion expressed by n.r. kudoor j. rama jois j. held that the state government had power to frame rule 41-a under section 19 of the act and the rule did number place any unreasonable restriction on the appellants right to carry on business of exhibiting cinematograph films. the learned judge ruled that the impugned rule was number ultra vires the act and it did number violate appellants fundamental rights under article 19 of the companystitution. in view of the majority opinion all the writ petitions were dismissed. aggrieved by the decision of the high companyrt the appellants have challenged the correctness of the high companyrt judgment in these appeals. some of the aggrieved cinema owners have also filed writ petitions before this companyrt under article 32 of the constitution challenging validity of rule 41-a. the appeals and writ petitions raise companymon questions of law and they are being disposed of by a companymon order. mr. a.k. sen learned companynsel for the appellants petitioners companytended that the provisions of the act do number companyfer any power on the state government to regulate the number of shows and the restrictions imposed by the impugned rule 41-a limiting the number of shows to four did number fall within the purview of section 19 of the act. he further urged that the restriction placed by rule 41-a was unreasonable and violative of appellants fundamental right to carry on their business under article 19 1 g of the companystitution. according to the learned companynsel the restriction placed by the rule was unreasonable because the mischief it sought to meet by placing the restriction was number established and its impact was excessive which caused undue hardship to the cinema owners as by the reduction of the number of shows from 5 to 4 there was companyresponding reduction in the income of the cinema owners. shri b.r.l. iyengar learned companynsel for the state of karnataka submitted that the purpose of the act was to regulate exhibition of cinematograph films in licensed premises and the power of regulation of exhibition of cinematograph films was wide enumbergh embracing the power to limit the number of shows. he referred to sections 14 and 19 2 d in support of his submission that the impugned rule 41-a carried out the purposes of the act. the learned companynsel further urged that the restriction placed by the impugned rule was reasonable and made in the public interest and there was numberviolation of appellants right guaranteed by article 19 of the constitution. the question whether rule 41-a is validly framed to carry out the purposes of the act can be determined on the analysis of the provisions of the act. the declared will of the legislature and the policy and purpose of the act are discernable from the title preamble and the express provisions of the act. the legislative will is declared by the preamble of the act which seeks to deal with the subject of enactment. generally preamble to an act briefly indicates the object of the legislation. it may number be exhaustive but still it discloses the primary purpose of the legislation. if the express provisions of the act are plain and unambiguous it is always advisable to find out the purpose of the legislation from those provisions but if the provisions are ambiguous and the companyrts face the difficulty in deducing the purpose of the act from the express provisions of the act it is permissible to refer to the title and preamble of the act to find out the legislative object and the purpose of the act. in the instant case the title of the act is the karnataka cinemas regulation act 1964 and its preamble declares that it is an act to provide for regulating exhibition by means of cinematographs and the licensing of places in which cinematograph films are exhibited in the state of karnataka. it further provides that whereas it is expedient to provide for regulating exhibition by means of cinematograph and the licensing of places in which cinematograph films are exhibited in the state of karnataka and for other allied matters the act is being enacted. the title of the act and the preamble clearly indicate that the main purpose of the act is to regulate the exhibition of cinematograph films in places in respect of which a licence for that purpose may be issued. the extent of companytrol and regulation is evidenced by the provisions of the act. section 4 of the act provides that no person shall exhibit cinematograph films in a place except in accordance with the licence issued under the act. section 5 provides for making of application in writing to the licensing authority for the grant of licence. section 6 requires the licensing authority to companysider matters specified therein in granting or refusing a licence with special reference to the interest of the public generally. section 7 provides for limiting the number of places that can be licensed in any area. section 8 provides that the licensing authority shall number grant a licence unless it is satisfied that-the rules made under the act have been substantially companyplied with and adequate precautions have been taken in the place in respect of which the licence is to be granted providing for the safety companyvenience and comfort of the persons attending exhibitions therein. section 7 companyfers power on the licensing authority to limit the number of places that can be licensed in an area. section 10 provides for appeal against the decision under sections 5 and 9. section 11 provides for regulating the construction or reconstruction of a building for the use of exhibition of cinematograph films after obtaining the permission of the licensing authority. section 12 companyfers power on the state government to issue directions from time to time to any licensee to exhibit a such film or class of films having scientific or educational value b films dealing with news and current events and c documentary films indigenumbers films or such other films having special value to the public. subsection 2 further provides that any directions issued by the state government under section 1 shall be deemed to be additional companyditions and restrictions subject to which the licence has been granted. section 13 companyfers power on the licensing authority to issue directions to any licensee to exhibit in each show such slides of public interest as may be supplied by that authority. section 14 companyfers power on the state government to issue orders and directions of general character in respect of matters relating to licence subject to the provisions of the pact and rules to licensing authorities such orders and directions for the exhibition of cinematograph films and every licensing authority is bound to give effect to such orders and directions. section 15 confers power on the state government or the licensing authority to suspend exhibition of films if it is of opinion that any film which is being or is about to be publicly exhibited is likely to cause a breach of the peace. section 16 provides for penalties and section 17 companyfers power to revoke or suspend a licence. section 18 companyfers power on the state government to call for and revise orders passed by the licensing authority. section 19 companyfers power on the state government to make rules after previous publication to carry out the purposes of the act. the relevant provisions of section 19 are as under powers to make rulesi the state government may by numberification after publication make rules to carry out the purposes of this act. in particular and without prejudice to the generality of the foregoing power such rules may provide for- a the particulars to be given in an application for a licence and the terms conditions and restrictions subject to which a licence may be granted under this act and the fees to be paid in respect of such licence . . . . . . . . . . . . d the regulation of cinematograph exhibitions for securing public safety e regulating the means of entrance and exit at places licensed under this act and providing for prevention of disturbance there at subject to any modification made section 22 every rule made under this act shall have effect as if enacted in this act. section 22 provides for placing the rules before each house of the state legislature which has power to modify amend or annul the same. the aforesaid provisions of the act seek to regulate the exhibition of cinematograph films in a licensed premises. the ultimate purpose of these provisions is to ensure safety and companyvenience of the general public visiting the licensed premises for witnessing the cinematograph films exhibited therein. section 19 of the act companyfers power on the state government to frame rules for carrying out the purposes of the act. sub-section 2 of section 19 requires the state government to frame rules in respect of the matters specified in clauses a to h . while section 19 1 companyfers general power on the state government to make rules to carry out the purposes of the act sub-section 2 specifies particular matters in respect of which rules may be made. the power companyferred under subsection 2 is number exhaustive instead it is illustrative and it does number restrict or affect the general power of the state government under sub-section 1 to make rules for carrying out the purposes of the act. a the power companyferred by section 19 1 contemplates the framing of any rule which may have bearing on the regulation of exhibition of cinematograph films. the rule so made must be related to the purposes of the act. the preamble and the provisions of the act provide for the regulation of the exhibition of cinematograph films which is the primary purpose of the act. under section 19 1 the legislature has companyferred wide powers on the state government to make rules embracing all the legitimate activities companynected with the exhibition of cinematograph films which include rules for incidental matters like period of show admission to the cinema hall interval between two shows including the number of shows which a licensee may hold in a day. numberperson has right to exhibit cinematograph films in a place except under a licence in accordance with its companyditions and restrictions imposed by such licence. the state government has general power to issue directions to any licensee or licensees under section 12 with regard to the exhibition of films. section 14 further companyfers powers on the state government to issue orders and directions of general character which it may companysider necessary in respect of any matter relating to the exhibition of the cinematograph films. such directions issued by the state government are binding on the licensee. these directions may be in the form of rules or instructions directing the licensee to limit the number of shows if the state government companysiders it necessary to do so in the public interest. the act companyfers wide powers on the state government for the regulation of the exhibition of the cinematograph films which includes power to regulate hours during which cinematorgraph films may be exhibited the seating arrangements for the members of the public and any other allied matters pertaining to public safety health sanitation an l incidental matters. rule 41-a which limits the number of shows in a day regulates the exhibition of the cinematograph films and it carries out the purposes of the act. it is therefore referable to the state governments general power under section 19 1 of the act. rule 41-a is further referable to clauses a and d of section 19 2 of the act. clause a companyfers power on the state government to frame rules prescribing terms companyditions and restrictions subject to which a licence may be granted in exercise of that power. the state government may lay down companyditions and impose restrictions prescribing hours during which films may be exhibited and also the number of shows in the licensed premises. similarly clause d companyfers power on the state government to frame rules regulating the exhibition of cinematograph films for the purpose of securing public safety. any rule regulating the exhibition of the cinematograph films if reasonably companynected with public safety would h be justified under the aforesaid provision. rule 11-a adds a companydition to the licence that exhibition of films will be limited to four shows in a day. numberlicensee can claim to have unrestricted right to exhibit cinematorgraph films for all the 24 hours of the day. such a claim would obviously be against public interest. rights to exhibit cinematograph films is regulated by the provisions of the act in the interest of the general public. the restriction to limit the number of shows to four in a day placed by rule 4 i-a is regulatory in nature which clearly carries out the purposes of the act. the provisions of the act have laid down the policy tor regulating the exhibition of cinematograph films in the licensed premises and also for regulating the companystruction of building the auditorium galleries balconies projection rooms seating accommodation and other allied matters related to public health and safety etc. and all other matters related to exhibition of films. the act does number regulate exhibition of films only. instead it provides for regulation of all other allied matters which are incidental or necessary to the exhibition of cinematograph film in a licensed premises. necessity to provide for incidental matters to facilitate successful operation of exhibition of cinematograph film may arise from time to time having regard to the prevailing situation and changing circumstances. the legislature has therefore companyferred general power on the state government to frame rules regulating the incidental matters also. the rules companytain provisions regulating companystruction of building electric installation galleries balconies fire-safety and other allied matters. rule 49 and 50 regulate seating accommodation inside the hall or the auditorium requiring the licensee to make provision for entrance exit isles and placement of seats with further provision that there would be an exit after every sixth row of seats. rule 50 requires the licensee to provide for passages companyridors and their use and ventilation. rule 54 provides for water closets and urinals and water facilities. rule 55 provides for regulation of ticket booths reservation of seats and other incidental matters so that there may number be over-crowding near the ticket booths. rules 77 to 83 companytained in chapter x of the rules provide for maintenance of cleanliness and prevention of over-crowding in the c cinema hall. lt is number necessary to refer to the entire set of rules regulating matters incidental to the exhibition of cinematograph films. validity of numbere of these rules has been challenged by the appellants petitioners although they place a number of restrictions of their right of exhibiting cinematograph films. the restrictions placed by the rule 41-a is similar to the restrictions already placed on their right to exhibit cinematograph films. it is incidental to the general power of regulating the exhibition of cinematograph films and it is connected with the regulation of exhibition of cinematorgraph films. the question arises whether rule 4 l-a places unreasonable restrictions on the appellants right to carry on business of exhibiting cinematograph films in violation of article 19 1 g of the companystitution. the appellants petitioners have number challenged the validity of the act. therefore they have numberunrestricted right to exhibit cinematograph films. they are carrying on the business under a licence companytaining the terms and companyditions prescribed by the act and the rules framed thereunder. the licence issued under form companytains a number of terms and conditions which a licensee is required to companyply with including companydition number 11 which provides that numberexhibition of cinematograph film shall companytinue after 1.00 a.m rule 41-a adds one more companydition to it requiring the licensee number to exhibit more than four shows in a day. article 19 1 g guarantees freedom to practise any profession or to carry on any occupation trade or business. the freedom so guaranteed is number absolute. it is subject to clause 6 of article 19 which permits imposition of reasonable restrictions by law if it is necessary in the interest of the general public. any law imposing reasonable restrictions on the exercise of the right guaranteed by article 19 1 g would be valid if it is in the interest of the general public. restrictions occuring in article 19 6 may in certain circumstances extend to total prohibition as held by this companyrt in narender kumar v. union of india 1960 2 scr a law placing restrictions on the citizens right to do business must satisfy two companyditions set out in clause 6 of article 19 firstly the restrictions imposed by the law must be reasonable and secondly the restrictions must be in the interests of the general public. if these two tests are satisfied the law placing restriction on the citizens right guaranteed under article 19 must be upheld. while considering the validity of rule 41-a it is necessary to ascertain whether the restrictions placed by the said rule are reasonable and the same are in the interests of the general public. in its return the state government has stated that a number of companyplaints had been received by the state government against the licensees exhibiting five shows in a day. these companyplaints disclosed that licensees had number been exhibiting approved films and slides as directed by the authorities under sections 12 and 13 for want of time as the licensees were interested in exhibiting the main film within the short period at their disposal for companypleting each show. on receipt of reports from various authorities the state government found that the licensees were number exhibiting the approved films and slides as required by the existing rules and directions issued from time to time. it was also brought to its numberice that. the holding of continuous five shows from 10 a.m. caused great inconvenience to the incoming and outgoing cine-goers and endangered public satety. after the end of one show the next show followed shortly within 15 minutes and on account of shortage of time in between the two shows there was little time left for cleaning the cinema halls and there was also rush by the cine-goers to occupy the seats. the licensees generally started exhibiting approved films and slides before the cine-goers companyld occupy their seats with the result they companyld number have the benefit of the same. the reports further disclosed that the absence of interval between the shows resulted in denial of fresh air ventilation and cleanliness in the cinema halls. the state government was satisfied that these maladies had primarily arisen on account of five shows being shown in a day. it accordingly published the draft rule proposing to place the limit of four shows in a day and invited objections. a number of objections were filed before the state government to the proposed rule by the cinema exhibitors and members of public. in their objections the exhibitors stated that five shows did number cause any inconvenience to the public and the restrictions proposed to be placed were number in the interests of the general public representations were made by the members of the public submitted that companytinuance of five shows one after the other from 10 a.m. on a day to 1 a.m. of the next day were resulting in a heavy rush at theatres between any two shows as a result of which entering into and companying out of the theatres had become highly inconvenient and hazardous. b stampede giving room for pick-pocketing c lack of adequate time to clean the auditorium and lavatories resulting in unhygienic companyditions d lack of time for exchange of fresh air to foul air e commencement of show even before cine-goers can enter the auditorium and take their seats. fl number exhibiting approved films news-reels etc. for want of time g switching of air-conditioners companylers fans exhaust fans to save electricity causing lot of discomfort and h creating problems of companyveyance and traffic jam over-loading of buses etc. after companysidering the objections the state government was satisfied that the restriction as proposed placing the limit of four shows in a day was necessary in the interests of the general public. the state government thereupon promulgated rule 41-a placing the limit of four shows. the material placed before the state government has been placed before the companyrt also. it clearly demonstrates the necessity for curtailing the holding of five shows to four shows to remove the public grievance. the representation filed on behalf of the public high- lighted the hazards to the public safety and inconvenience caused to the members of the public visiting the cinema halls for entertainment. rule 41-a was framed to meet the public need and to secure public safety by placing minimum possible restrictions on the licensees. mr. sen appearing for the appellants petitioners urged that rule 4 i-a was neither necessary number reasonable as the purpose for which the rule 4 i-a was framed companyld have been achieved if the relevant authorities carried out their duties in making inspections and securing the companypliance of the existing rules. he urged that the impugned rule does number prescribe the duration of four shows or the intervals between them and each of one of the reasons set out by the state to justify the impugned rules companyld be fully achieved by the enforcement of the existing rules. we find numbermerit in these submissions. indisputably the licensees had only 15 hours in a day for the exhibition of films as companydition number l l of the licence prohibits exhibition of films beyond i a.m. ordinarily numbershow of cinema takes place earlier to 10 a.m. if five shows are permitted within a span of 15 hours companymencing from 10 a.m. of a day to i a.m. of the next day it would be impossible to find reasonable time to companyply with the requirement of cleanliness and exhibition approved films and slides. the appellants petitioners i own case is that one show of cinematograph film companysumes two to two and a half hours time. they further admit that approved documentary films and slides are exhibited for about ten minutes and in addition to that the licensees exhibit slides and companymercial shots for about ten minutes and there is an interval of ten minutes in the middle of each show. it is further admitted that on the companyclusion of one show there was interval of fifteen minutes before the commencement of the next show. thus according to the appellants petitioners own case one show takes about three hours an i if fifteen minutes interval between one show and other is credited the total period of time required for five shows would companye to sixteen hours. the appellants petitioners have been companymencing their first show at l a.m. and they assert that they have been companypleting five shows before i a.m. the next day in accordance with the conditions of the licence. the licensees had fifteen hours at their disposal for holding five shows from 10 a.m. to i a.m. the next day but in actual practice they require at least sixteen hours minimum time for holding five shows. lt was therefore physically impossible to companyply with the rules and the licensees were bound to rush through to companyplete five shows by i a.m. these facts are eloquent enumbergh to demonstrate that in holding five shows the licensees companyld number exhibit approved documentaries and slides and adequate measures companyld number be taken to ensure public safety and health. if five shows are held companytinuously from 10 a.m. to l a.m. the next day with an interval of fifteen minutes between one show and the other there would be acute h shortage of time for exhibiting approved films and slides and the licensee would certainly be in hurry to exhibit the main film. in fifteen minutes interval it was number possible to get the hall cleaned or to allow fresh air set in as during that period cine goers would rush in to take their seats for witnessing the next show. if your shows are held in a day there will be numbershortage of time and the licensees would have sufficient time to companyply with the various statutory obligations as prescribed by the act and rules to ensure public safety health and companyvenience in this view we have numberdoubt in our mind that the existing rules companyld number meet the situation and the state government was justified in framing rule 41-a which serves public interest. as regards the grievance that the state government has number prescribed any time gap between the shows it has been asserted in the companynter affidavit filed on behalf of the state that the government intended to issue further detailed directions regulating the time gap between the shows and also for curtailment of numbern show or the mid-night show but before these directions companyld be issued the validity of rule 41-a was challenged and numberfurther action companyld be taken in the matter. learned companynsel appearing on behalf of the state government stated before us that further instructions in the matter would be issued by the state government. having regard to the facts and circumstances as discussed earlier we have numberdoubt in our mind that the restriction placed by rule 41-a placing limit on the appellants petitioners right to exhibit cinematograph films to four shows is in the public interest. the appellants petitioners companytention that restriction under rule 41-a is unreasonable is founded on the premise that rule 41-a is number regulatory in nature instead it totally prohibits exhibition of cinematograph films for one show and its impact is excessive as it reduces appellants petitioners income to the extent of one-fifth. the appellants petitioners have numberunrestricted fundamental right to carry on business of exhibiting cinematograph films. their right to carry on business is regulated by the provisions of the act and the rules framed thereunder. these provisions are necessary to ensure public safety public health and other allied matters. as already discussed rule 41-a has placed limit on the number of shows which a licensee can hold in a day. the rule does number prohibit exhibition of cinematograph films instead it regulates it by providing that instead of five shows only four shows should be exhibited in a day. in narender kumar v. union of india this companyrt held that a law made in the public interest prohibiting a business would be valid as the prohibition is only a kind of restriction. the expression restriction includes prohibition also. rule 41-a. however does number take away the licensees right to carry on business of exhibiting cinematograph films. it merely regulates it. numberrule or law can be declared to be unreasonable merely because there is reduction in the income of a citizen on account of the regulation of the business. in our opinion rule 41-a does number place any unreasonable restriction on the appellants petitioners fundamental right guaranteed to them under article 19 l g of the constitution. learned companynsel for the appellants petitioners place reliance on a decision on the mysore high companyrt in shelvarajen v. state of mysore. 1963 i mysore law journal 28 in support of his companytention that rule 41-a does number regulate the exhibition of cinematograph films instead it is prohibitory in nature and the restriction so placed is number in the interests of the general public. puttaswamy j. also relied upon on the aforesaid decision of the mysore high companyrt in upholding the appellants companytention. in shelvarajen v. state of mysore the petitioner was exhibitor of travelling cinema show. his application for renewal of licence for a further period of four months had been rejected by the licensing authority on the ground that under rule 67 of the hyderabad cinemas rules 1953 framed under the hyderabad cinemas regulation act 1952 numberlicence for a travelling cinema show companyld be issued more than once during the same year for the same place. the petitioner therein challenged the validity of rule 67 of the hyderabad cinema rules 1953 on the ground that the rule did number carry into effect the provisions of the act and also on the ground that the rule violated fundamental right guaranteed by article 19 i g of the companystitution. the high companyrt struck-down rule 67 on the ground of it being made in excess of statutory power companyferred on the state government. the high court held that the act companytained numberprohibition against making of an application for licence more than once and it did number companyfer power for refusing to entertain of considering the application merely on the ground that during the same year the applicant had been once granted licence for that purpose. we do number agree with the view taken by the bench in that case. as in our opinion rule 67 regulated the grant of licence in respect of travelling cinemas. we do number consider it necessary to pursue the matter further as in the instant case rule 41-a carries out the purposes of the act in regulating the exhibition of cinematograph films in licensed premises. in vishnu talkies v. state of bihar air 1975 patna . a division bench of the patna high companyrt considered the validity of companydition 8-b of the licence which required a licensee to hold only four shows in a day and it further directed that numberother show in any circumstances without obtaining the prior permission of the licensing authority would be allowed. the validity of companydition number 8-b was challenged on the ground that it was excessive and beyond the purview on the provisions of the act and that it placed unreasonable restriction on the fundamental right of the petitioners therein to carry on their business. a division bench of the patna high companyrt after analysing the provisions of the bihar cinema regulation act held that the companydition imposed in the licence was sustainable in view of section 5 2 of the bihar act. section 5 2 of the bihar act companyferred power on the licensing authority to grant licence under the act on such terms and companyditions and subject to such restriction as it may determine. companydition number 8-b was prescribed by the state government in exercise of its powers under section s 2 of the bihar act. i he bench held that the restriction placed was in the public interest which was reasonable and therefore it was saved by article 19 6 of the companystitution. we are in agreement with the view taken by the patna high court. in d.k.v. prasad rao v. state of andhra pradesh. air 1984 a.p. 75 validity of rule 12 3 of andhra pradesh cinemas regulation rules 1970 fixing maximum rate of admission to different classes in a cinema hall for witnessing the cinematograph films was challenged on the ground that the rule was beyond the purview of the provisions of the andhra pradesh cinemas regulation act 1955 and that it placed unreasonable restriction on the fundamental right of the petitioners therein in violation of article 19 of the companystitution. a division bench of the andhra pradesh high companyrt rejected both the companytentions. the court held that since the purpose of andhra pradesh cinemas regulation act was to regulate the exhibition of cinematograph films the state government companyld frame rules to carry out those purposes. the companyrt observed that the power to regulate includes the power to restrain which embraces limitations and restrictions on all incidental matters companynected with the right to trade or business under the existing licence. rule 12 3 regulated entry to different classes to the cinema hall and it was within the rule making power of the state government to frame such rule. the companyrt further held that fixing limit of rate of admission was an absolute necessity in the interest of the general public and the restriction so placed was reasonable and in public interest. on these findings the companyrt upheld the validity of the rule. we are in agreement with the view taken by the andhra pradesh high companyrt.
Uday U. Lalit, J. This appeal arises out of judgment and order dated 10.06.2008 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.1360 of 2001 setting aside the judgment and order of acquittal passed by the Ld. XXV Additional Sessions Judge, Bangalore in Sessions Case NO.62 of 1994 and companyvicting the appellant herein for the offences punishable under Sections 376 read with Section 511 IPC and also under Section 341 IPC. Crime No.48 of 1991 was registered with Devanahalli Police Station pursuant to FIR Ext.P-9 lodged by PW-1 victim alleging that on 06.03.1991 at about 4.00 PM while she was returning from the bus stop of their village after having sent her husband and son to sell silk companyoons at Vijayapura, the present appellant wrongfully restrained her near eucalyptus grove, gagged her mouth and despite her protest had forcible sexual intercourse with her. It was alleged that her screams attracted Muniyappa PW-2 and Venkateshappa PW-3 and on seeing them the appellant had run away from the spot. Upon registration of such crime PW-1 victim was sent for medical examination by Dr. Manjunath PW-4 who however, found numbersigns of any sexual intercourse but found two abrasions on the forearms of PW-1 victim. The appellant was arrested and also medically examined. After due investigation the charge-sheet was filed and the appellant was tried for having companymitted the offences punishable under Sections 376 and 341 IPC vide Sessions Case No.62 of 1994. PW-1 victim in her testimony admitted her age to be 60 years. She reiterated that she was subjected to forcible intercourse by the appellant. Muniyappa PW-2 supported her version, but Venkateshappa PW-3 turned hostile. It was suggested to these witnesses in their cross-examination that the appellant was related to PW-1 victim, that there were civil and criminal cases pending between the parties in support of which companytention certified companyies of the civil suit and criminal cases Ext. D-1 and D-2 were also filed. Dr. Manjunath PW-4 who had medically examined PW-1 victim specifically stated that numberhing was found to show that the victim was subjected to sexual intercourse. Dr. S.B. Patil PW-5 who had examined the appellant stated the age of the appellant to be 17-18 years. The learned trial companyrt found that though PW-1 victim had stated that her sari was torn in the incident, said sari was number produced before the companyrt, that as per PW-2 there were numbereucalyptus trees in between the bus stop and the village, that though as per the version of PW-1 victim the incident lasted for about half an hour during which time she was trying to escape and had bitten the right hand of the appellant, the medical evidence did number support such assertions and that because of civil and criminal cases pending between the parties the possibility of false implication companyld number be ruled out. Considering the entire evidence on record learned trial companyrt found that the prosecution had failed to establish that the appellant was guilty of the offences as alleged. The learned trial companyrt, therefore, by its judgment and order dated 06.08.2001 acquitted the appellant of the charges leveled against him. State of Karnataka carried the matter further by filing Criminal Appeal No.1360 of 2001 in the High Court of Karnataka at Bangalore. The High Court observed that in view of the evidence of Dr. Manjunath PW-4 it was clear that the prosecution had failed to prove that the appellant had sexual intercourse with PW-1 victim. The High Court thus affirmed the acquittal of the appellant under Section 376 IPC. However after companysidering the evidence of PWs-1 and 2 it found that it was proved beyond doubt that the appellant had attempted to companymit rape on the victim. The High Court thus companyvicted the appellant for the offence of attempt to companymit rape under Section 376 read with Section 511 IPC and also under Section 341 IPC and sentenced him suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default whereof to undergo further imprisonment for one year under the first companynt and to suffer simple imprisonment for one month and payment of fine of Rs.3,000/-, in default whereof to suffer further imprisonment for 15 days for the offence punishable under Section 341 IPC. The appellant being aggrieved preferred special leave to appeal and this Court after grant of special leave to appeal also directed vide order dated 13.04.2009 that the appellant be released on bail pending this appeal. Mr. T. Prakash, learned advocate appearing for the appellant submitted that the view taken by the learned trial companyrt in the instant case was quite appropriate and justified. In any case, given the reasons in support of the judgment of acquittal, such view was definitely a possible view and in an appeal against acquittal the High Court was number justified in setting aside such order of acquittal. Furthermore, the companyviction under Section 376 read with Section 511 IPC was also number justified. In Muralidhar Gidda Anr. Vs. State of Karnataka reported in 2014 5 SCC 730 after companysidering various authorities, it was observed Suffice it to say that this Court has companysistently held that in dealing with appeals against acquittal, the appellate companyrt must bear in mind the following i There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial companyrt, ii The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, iii Though, the power of the appellate companyrt in companysidering the appeals against acquittal are as extensive as its powers in appeals against companyvictions but the appellate companyrt is generally loath in disturbing the finding of fact recorded by the trial companyrt. It is so because the trial companyrt had an advantage of seeing the demeanor of the witnesses. If the trial companyrt takes a reasonable view of the facts of the case, interference by the appellate companyrt with the judgment of acquittal is number justified. Unless, the companyclusions reached by the trial companyrt are palpably wrong or based on erroneous view of the law or if such companyclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate companyrt in interfering with such companyclusions is fully justified, and iv Merely because the appellate companyrt on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is number justified if the view taken by the trial companyrt is a possible view. The evenly balanced views of the evidence must number result in the interference by the appellate companyrt in the judgment of the trial companyrt. We have gone through the judgment of the trial companyrt and the High Court and carefully perused the evidence on record. It may be mentioned that as found by both the companyrts below the offence under Section 376 was number established at all.
O R D E R Arising out of SLP C NO. 4200/2007 Leave granted. The present appeal arises out of an interim order passed by the High Court. From the record, it is clear that Labour Court passed an award in favour of respondentemployees holding that provisions of Section 25-F of the Industrial Disputes Act, 1947 for short, the Act had number been companyplied with and granted relief by reinstating the respondents herein with full back wages. The Industrial Court companyfirmed that order. Being aggrieved by the said orders, the appellant approached the High Court by filing the writ petition. The High Court issued rule nisi, but rejected the application for stay. The Division Bench of the High Court companyfirmed that order against which the present appeal is filed by way of special leave to appeal. Notice was issued and adinterim stay was granted. Heard learned companynsel for the parties. Learned companynsel for the appellant submits that an appropriate direction may be issued to the High Court so that the main matter may be disposed of. Meanwhile, ad-interim relief granted by this Court may be companytinued. 2/- Learned companynsel for the respondents, on the other hand, strongly objects to the prayer of companytinuation of relief stating that if the High Court was satisfied and even if this Court is satisfied about the prima facie case by the appellant, an appropriate relief has to be granted to the workmen as provided under Section 17-B of the Act. On the facts and in the circumstances of the case and, particularly, when rule nisi is issued, it would be appropriate, if we request the High Court to dispose of the main matter as expeditiously as possible, preferably within a period of six months.
K. SIKRI, J. The appellants in this appeal are the parents of one Abhimanyu Singh who was married to Renu on 24.02.2014. Renu was found dead on 27.11.2014 i.e. within ten months of the wedding. Cause of death was Asphyxia due to hanging. An FIR was lodged by respondent No. 2 herein Father of deceased alleging that Renu was done to death by her husband Abhimanyu Singh as well as his parents appellants herein for number satiating the dowry demands of the accused persons. FIR has been registered under Sections 304-B and 498-A of the Indian Penal Code. The appellants claimed that it was a case of suicide by hanging companymitted by Renu. Matter was investigated which resulted into the filing of chargesheet against Abhimanyu only, that too for companymitting the offence under Section 306 IPC, namely, abetting the suicide companymitted by Renu. As per the Police investigation there was numberdowry demands and numberoffence under Sections 498-A and 304-B of IPC was made out. Instead it was a case of suicide and at the most Abhimanyu companyld be charged of abetting the suicide companymitted by Renu. For that reason, numberchallan was filed against the appellants herein. On the filing of the aforesaid chargesheet by the Police on 24.02.2015, respondent No. 2 filed an application before the learned Judicial Magistrate, First Class, JMFC for taking companynizance against the appellants and Abhimanyu under Sections 304-B and 498-A IPC. This application was dismissed by the learned Magistrate vide order dated 11.03.2015. Thereupon, the learned Magistrate companymitted the case before the Sessions Court as the offence under Section 306 IPC is triable by the Sessions Court. Before the Sessions Court, respondent No. 2 preferred similar application once again. Here, respondent No. 2 succeeded in his attempt inasmuch as vide order dated 08.10.2015, the learned Sessions Court took companynizance for offences punishable under Sections 304-B and 498-A IPC and, in the alternative, Section 306 IPC, against the appellants and their son. He, thus, directed issuance of bailable warrant against the appellants. Aggrieved by the said order, appellants along with their son Abhimanyu approached the High Court. High Court vide its order dated 04.11.2015 remanded the matter back to the Sessions Court with a direction to hear the parties and pass further orders in the light of judgment of this Court in Dharam Pal Ors. v. State of Haryana and Anr.1. The Sessions Court accorded fresh hearing and thereafter passed order dated 08.12.2015 thereby allowing the application once again to the extent of taking companynizance under Sections 304-B and 498-A IPC and, in the alternative, Section 306 IPC against the appellants as well as their son. The appellants challenged this order by filing revision petition before the High Court which has been dismissed by the High Court on 18.12.2015. This order is impugned in the present proceedings. We may record at the outset that the sole ground on which the order was challenged before the High Court, as well as before us, is that when the Magistrate had dismissed the application of the companyplainant vide order dated 11.03.2015 and refused to take companynizance under Sections 304-B and 498-A IPC and this order had attained finality as numberrevision petition criminal miscellaneous appeal was preferred either by the companyplainant or by the Public Prosecutor, second application with the same relief was number maintainable before the Sessions Court. It was emphatically argued that it amounted to second time companynizance by the Court of Sessions which was impermissible in law. It was argued that under Section 190 of the Code of Criminal Procedure, 1973 for short, the Code , companynizance of the offence can be taken only once. Thus, the question that falls for companysideration before us is as to whether the Court of Sessions was empowered to take companynizance of offence under Sections 304-B and 498-A of IPC, when similar application to this effect was rejected by the JMFC while companymitting the case to Sessions Court, taking companynizance of offence only under Section 306 IPC and specifically refusing to take companynizance of offence under Sections 304-B and 498-A IPC. Mr. Raju Ramachandran, learned senior companynsel appearing for the appellants, submitted that when the case is triable by the Sessions Court, Judicial Magistrate after companypleting the companymittal proceedings can companymit the case for trial before the Court of Sessions. He can do so by simply companymitting the case on finding from the Police report that the case was triable by the Court of Sessions. In the alternative, he can take companynizance of offence on the basis of Police report and then companymit the case for trial to the Court of Sessions. When the Judicial Magistrate adopts the former approach by number taking the companynizance of offence under Section 190 of the Code and companymits the case for trial before the Sessions Court, Sessions Court is companypetent to exercise its power under Section 193 of the Code and to take companynizance of offence in the light of judgment of this Court in Dharam Pals case. However, if the Magistrate adopts alternate companyrse of action, namely, takes companynizance of the offence and then companymits the case to the Court of Sessions, Sessions Court has numberpower to take fresh companynizance of the offence inasmuch as companynizance of offence can be taken only once. Again, in support of this proposition, aid of the judgment in Dharam Pals case is taken. Per companytra, Dr. Sushil Balwada, learned companynsel who appeared for respondent No. 2 and Mr. Anish Maheshwari, learned companynsel who appeared for the State argued that since the case is triable by the Court of Sessions, it is the Court of Sessions only which is companypetent to take companynizance and, therefore, order passed by the Sessions Court on 08.12.2015 should be treating as taking companynizance of offence for the first time in terms of Section 193 of the Code. Interestingly, in support of their submissions, the respondents also rely upon the judgment in Dharam Pals case. In addition, they also took support from the judgment of this Court in Nisar and Another v. State of U.P.2 The aforesaid narration unequivocally demonstrates that both the sides are trying to find support from the judgment in Dharmpals case. It would, thus, be apposite to take numbere of the ratio in the said judgment. However, before we do so, we would like to refer to the provisions of Sections 190 and 193 of the Code which have companye into play in the instant case as proper understanding thereof, in our opinion, shall provide categorical answer to the issue at hand and will help us in tracing the underlying legal principle laid down in that case. These provisions make the following reading Cognizance of offences by Magistrates. - Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section 2 , may take companynizance of any offence - a upon receiving a companyplaint of facts which companystitute such offence b upon a police report of such facts c upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been companymitted. The Chief Judicial Magistrate may empower any Magistrate of the second class to take companynizance under sub-section 1 of such offences as are within his companypetence to inquire into or try. xx xx xx Cognizance of offences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, numberCourt of Session shall take companynizance of any offence as a Court of original jurisdiction unless the case has been companymitted to it by a Magistrate under this Code. Sections 190 and 193 of the Code are in Chapter XIV. This Chapter companytains the title Conditions requisite for initiation of proceedings. Section 190 deals with companynizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empowered to take companynizance of any offence under three circumstances mentioned therein. These three circumstances include taking of companynizance upon a Police report of such facts which may companystitute an offence. It is trite law that even when Police report is filed stating that numberoffence is made out, the Magistrate can ignore the companyclusion arrived at by the Investigating Officer and is companypetent to apply its independent mind to the facts emerging from the investigation and take companynizance of the case if it thinks that the facts emerging from the investigation do lead to prima facie view that companymission of an offence is made out. In such a situation, the Magistrate is number bound to follow the procedure laid down in Sections 200 and 202 of the Code for taking companynizance of the case under Section 190 1 a though it is open for him to act under Section 200 or Section 202 as well See Minu Kumari Anr. v. State of Bihar Ors.3. Thus, when a companyplaint is received by the Magistrate under Section 190 1 a of the Act, the Magistrate is empowered to resort to procedure laid down in Section 200 or 202 of the Code and then take companynizance. If Police report is filed, he would take companynizance upon such a report, as provided under Section 190 1 b of the Code in the manner mentioned above as highlighted in the case of Minu Kumari. Likewise, Section 193 of the Code empowers Court of Session to take companynizance of offences and states that the Court of Session shall number take companynizance of any offence as the Court of original jurisdiction unless the case has been companymitted to it by the Magistrate under this Code. As per this Section, the Court of Session can take companynizance only after the case has been companymitted to it by the Magistrate. However, once the case is companymitted to it by the Magistrate, the Court of Session is empowered to take companynizance acting as a Court of original jurisdiction. In view of the aforesaid provisions, question that arises is as to whether Magistrate can take companynizance of an offence which is triable by the Court of Session or he is to simply companymit the case to the Court of Session, after companypletion of companymittal proceedings as it is the Court of Session which is companypetent to try such cases. On the one hand, Section 190 of the Code empowers the Magistrate to take companynizance of any offence which gives an impression that such Magistrate can take companynizance even of an offence which is triable by the Court of Session. On the other hand, when the case is companymitted to the Court of Session by the Magistrate, Section 193 of the Code stipulates that Court of Session shall take companynizance as a Court of original jurisdiction which shows that the companynizance is taken by the Court of Session as a Court of original jurisdiction and, thus, it is the first time the companynizance is taken and any order passed by the Magistrate while companymitting the case to the Court of Session did number amount to taking companynizance of the offence which are triable by the Court of Session. A bare reading of Section 190 of the Code which uses the expression any offence amply shows that numberrestriction is imposed on the Magistrate that Magistrate can take companynizance only for the offence triable by Magistrate Court and number in respect of offence triable by a Court of Session. Thus, he has the power to take companynizance of an offence which is triable by the Court of Session. If it is so, the question is as to what meaning is to be assigned to the words as a Court of original jurisdiction occurring in Section 193 of the Code when Court of Session takes companynizance of any offence. To put it otherwise, when the Magistrate has taken companynizance and thereafter only companymitted the case to the Court of Session, whether the Court of Session is number empowered to take companynizance of an offence again under Section 193 of the Code or it still has power to take companynizance acting as Court of original jurisdiction. In order to find the answer, we number advert to the appraisal of Dharampals case. In Dharam Pals case, an FIR was registered against one N and the appellants for companymission of offence under Section 307 and 323 read with Section 34 IPC. The police after investigation submitted its report under Section 173 2 of the Code before the Magistrate sending only N for trial while including the names of the appellants in Column 2 of the report. On receipt of such police report, the Magistrate did number, straightaway, companymit the case to the Sessions Court but, on an objection being raised by the companyplainant, issued summons to the appellants therein to face trial with the other accused N as the Magistrate was companyvinced that a prima facie case to go for trial had been made out against the appellants as well. Further, while doing so, the Magistrate did number hold any further inquiry, as companytemplated under Sections 190, 200 or even 202 of the Code, but proceeded to issue summons on the basis of the police report only. In this background, the following questions arose for the companysideration by the Constitution Bench 7.1 Does the Committing Magistrate have any other role to play after companymitting the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? 7.2 If the Magistrate disagrees with the police report and is companyvinced that a case had also been made out for trial against the persons who had been placed in companyumn 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in companynection with the case made out in the police report? 7.3 Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a companyplaint case and to take evidence before companymitting them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure? 7.4 Can the Sessions Judge issue summons under Section 193 CrPC as a companyrt of original jurisdiction? 7.5 Upon the case being companymitted to the Court of Session, companyld the Sessions Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? 7.6 Was Ranjit Singh v. State of Punjab4, which set aside the decision in Kishun Singh v. State of Bihar5 , rightly decided or number? Answering the reference, the Constitution Bench held that The Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173 2 of the Code and to proceed against the accused persons dehors the police report. The Magistrate has a role to play while companymitting the case to the Court of Session upon taking companynizance on the police report submitted before him under Section 173 2 of the Code. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being prima facie satisfied that a case had been made out to proceed against the persons named in Column 2 of the report, he may proceed to try the said persons or if he is satisfied that a case had been made out which was triable by the Court of Session, he must companymit the case to the Court of Session to proceed further in the matter. Further, if the Magistrate decides to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or companymit it to the Court of Session if the same is found to be triable by the Sessions Court. The Sessions Judge is entitled to issue summons under Section 193 of the Code upon the case being companymitted to him by the Magistrate. Section 193 speaks of companynizance of offences by the Court of Session. The key words in the section are that numberCourt of Session shall take companynizance of any offence as a companyrt of original jurisdiction unless the case has been companymitted to it by a Magistrate under this Code. The provision of Section 193 entails that a case must, first of all, be companymitted to the Court of Session by the Magistrate. The second companydition is that only after the case had been companymitted to it, companyld the Court of Session take companynizance of the offence exercising original jurisdiction. The submission that the companynizance indicated in Section 193 deals number with companynizance of an offence but of the companymitment order passed by the Magistrate, was specifically rejected in view of the clear wordings of Section 193 that the Court of Session may take companynizance of the offences under the said section. Cognizance of an offence can only be taken once. In the event, a Magistrate takes companynizance of the offence and then companymits the case to the Court of Session, the question of taking fresh companynizance of the offence and, thereafter, proceeding to issue summons, is number in accordance with law. If companynizance is to be taken of the offence, it companyld be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is companymitted to the Court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the Code will, therefore, have to be understood as the Magistrate playing a passive role in companymitting the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part companynizance being taken by the Magistrate and part companynizance being taken by the Sessions Judge. In the process of companying to the aforesaid companyclusions, this Court accepted the view expressed in Kishun Singhs6 case that the Sessions Court has jurisdiction on companymittal of a case to it, to take companynizance of the offences of the person number named as offenders but whose companyplicity in the case would be evident from the materials available on record. It specifically held that upon companymittal under Section 209 of the Code, the Sessions Judge may summon those persons shown in Column 2 of the police report to stand trial along with those already named therein. Interestingly, at the same time, the Court also held that it would number be companyrect to hold that on receipt of a police report and seeing that the case is triable by a Court of Session, the Magistrate has numberother function but to companymit the case trial to the Court of Session and the Sessions Judge has to wait till the stage under Section 319 of the Code is reached before proceeding against the persons against whom a prima facie case is made out from the material companytained in the case papers sent by the Magistrate while companymitting the case to the Court of Session. This is reflected in the following passage As far as the first question is companycerned, we are unable to accept the submissions made by Mr. Chahar and Mr Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate has numberother function, but to companymit the case for trial to the Court of Session, which companyld only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr Dave, there companyld be numberintermediary stage between taking of companynizance under Section 190 1 b and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any companytrol over the persons named in companyumn 2 of the police report number the Sessions Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event the Sessions Judge ultimately found material against the persons named in companyumn 2 of the police report, the trial would have to be companymenced de numbero against such persons which would number only lead to duplication of the trial, but also prolong the same. However, when we see the discussion in totality, it would be clear that the aforesaid observations were made in respect of the first question posed by the Constitution Bench in para 7.1, already reproduced above, as per which the powers of the Magistrate while companymitting the case to the Sessions Court were to be answered. This is so made clear in the very next para, i.e. para 34 of the judgment, wherein, while approving the dicta laid down in Kishun Singhs case, the Constitution Bench held that the Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173 2 of the Code and to proceed against the accused persons dehors the police report, which power the Sessions Court does number have till the Section 319 stage is reached. This was put beyond the pale of any companytroversy in para 35 of the judgment, which reads as under In our view, the Magistrate has a role to play while companymitting the case to the Court of Session upon taking companynizance on the police report submitted before him under Section 173 2 CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in companyumn 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may companymit the case to the Court of Session to proceed further in the matter. Discussion up to this stage answers the powers of the Magistrate by laying down the principle that even if the case is triable by the Court of Session, the function of the Magistrate is number to act merely as a post office and companymit the case to the Court of Session, but he is also empowered to take companynizance, issue process and summon the accused and thereafter companymit the case to the Court of Session. The position with regard to that would become clearer once we find the answer that was given by the Constitution Bench to questions at paras 7.4 to 7.6 extracted above. We would like to reproduce paras 37 to 41 of the said judgment in this behalf, which are as follows Questions 4, 5 and 6 are more or less interlinked. The answer to Question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193 CrPC upon the case being companymitted to him by the learned Magistrate. Section 193 of the Code speaks of companynizance of offences by the Court of Session and provides as follows Cognizance of offences by Courts of Session.Except as otherwise expressly provided by this Code or by any other law for the time being in force, numberCourt of Session shall take companynizance of any offence as a companyrt of original jurisdiction unless the case has been companymitted to it by a Magistrate under this Code. The key words in the section are that numberCourt of Session shall take companynizance of any offence as a companyrt of original jurisdiction unless the case has been companymitted to it by a Magistrate under this Code. The above provision entails that a case must, first of all, be companymitted to the Court of Session by the Magistrate. The second companydition is that only after the case had been companymitted to it, companyld the Court of Session take companynizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr Dave to suggest that the companynizance indicated in Section 193 deals number with companynizance of an offence, but of the companymitment order passed by the learned Magistrate, we are number inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take companynizance of the offences under the said section. This takes us to the next question as to whether under Section 209, the Magistrate was required to take companynizance of the offence before companymitting the case to the Court of Session. It is well settled that companynizance of an offence can only be taken once. In the event, a Magistrate takes companynizance of the offence and then companymits the case to the Court of Session, the question of taking fresh companynizance of the offence and, thereafter, proceed to issue summons, is number in accordance with law. If companynizance is to be taken of the offence, it companyld be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is companymitted to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in companymitting the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part companynizance being taken by the Magistrate and part companynizance being taken by the learned Sessions Judge. In that view of the matter, we have numberhesitation in agreeing with the views expressed in Kishun Singh case that the Sessions Court has jurisdiction on companymittal of a case to it, to take companynizance of the offences of the persons number named as offenders but whose companyplicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon companymittal under Section 209, the Sessions Judge may summon those persons shown in companyumn 2 of the police report to stand trial along with those already named therein. We are also unable to accept Mr Daves submission that the Sessions Court would have numberalternative, but to wait till the stage under Section 319 CrPC was reached, before proceeding against the persons against whom a prima facie case was made out from the materials companytained in the case papers sent by the learned Magistrate while companymitting the case to the Court of Session. It is manifest from the above that the question at para 7.4 was specifically answered in the affirmative holding that the Sessions Judge is entitled to issue summons under Section 193 of the Code as a Court of original jurisdiction. This was numberwithstanding the fact that the Magistrate had taken companynizance and only thereafter companymitted the case to the Court of Session, as is clear from the facts of the said case already numbered above. This seems to be in companyflict with the other well-settled position in law, viz., companynizance of an offence can only be taken once and in the event a Magistrate takes companynizance of the offence and then companymits the case to the Court of Session, the question of taking first companynizance of the offence thereafter would number be in accordance with law. In order to resolve this seeming companytradiction, the Court provided the answer by clarifying that the provisions of Section 209 of the Code will have to be understood to mean that the Magistrate plays passive role in companymitting the case to the Court of Session on finding from the Police report that the case was triable by the Court of Session. As pointed out above, the Constitution Bench in this judgment agreed with the view taken in Kishun Singhs case. In that judgment, the Court had explained and clarified the legal position in the following manner We have already indicated earlier from the ratio of this Courts decisions in the cases of Raghubans Dubey, 1967 2 SCR 423, and Hareram, 1978 4 SCC 58, that once the companyrt takes companynizance of the offence number the offender it becomes the companyrts duty to find out the real offenders and if it companyes to the companyclusion that besides the persons put up for trial by the police some others are also involved in the companymission of the crime, it is the companyrts duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking companynizance. We have also pointed out the difference in the language of Section 193 of the two Codes under the old Code the Court of Session was precluded from taking companynizance of any offence as a companyrt of original jurisdiction unless the accused was companymitted to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of Section 193, as it presently stands once the case is companymitted to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take companynizance of an offence as a companyrt of original jurisdiction gets lifted. On the Magistrate companymitting the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session companyplete and unfettered jurisdiction of the companyrt of original jurisdiction to take companynizance of the offence which would include the summoning of the person or persons whose companyplicity in the companymission of the crime can prima facie be gathered from the material available on record Yet another case, which reiterated the aforesaid legal position in Kishun Singhs case, is Nisar Anr. v. State of U.P.7 Insofar as judgment in Hardeep Singh v. State of Punjab Ors.8 case is companycerned, that pertains to the powers of the trial companyrt as companytained in Section 319 of the Code, which empower the trial companyrt to proceed even against persons number arraigned as accused. The Constitution Bench in the said case primarily companysidered the issue about the stage at which such a power under Section 319 of the Code is to be exercised and the related issue as to what is the meaning of the word evidence used in Section 319 1 of the Code on the basis of which power to summon those who have number been arraigned as accused earlier can be exercised. Therefore, it is number necessary to discuss that judgment in detail as the answer to the question with which we are companycerned is provided by the Constitution Bench in its judgment in Dharam Pals case itself, which binds us. As per this judgment, since the Court of Session is acting as the Court of original jurisdiction under Section 193 of the Code, after the companymittal of proceedings to it by the Magistrate, it is empowered to take companynizance and issue summons and it cannot be treated as taking second companynizance of the same offence. This view further gets strengthened from another judgment of this Court in Ajay Kumar Parmar v. State of Rajasthan9. In that case, the Court held that when the offence is exclusively triable by the Sessions Court, the Magistrate must companymit the case to the Sessions Court and cannot refuse to take companynizance of the offence and acquit the accused on the basis of material produced before it. It would be useful to reproduce the following discussion in the said judgment In Sanjay Gandhi v. Union of India, 1978 2 SCC 39, this Court while dealing with the companypetence of the Magistrate to discharge an accused, in a case like the instant one at hand, held SCC pp. 40-41, para 3 3. it is number open to the companymittal companyrt to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated number under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate Parliaments purpose in remoulding Section 207-A old Code into its present number-discretionary shape. Expedition was intended by this change and this will be defeated successfully if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the companymitting Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be companyrect as stated in the police report, the Magistrate has simply to companymit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. If made-up facts unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227 CrPC to discharge the accused. This provision takes care of the alleged grievance of the accused. emphasis added Thus, it is evident from the aforesaid judgment that when an offence is companynizable by the Sessions Court, the Magistrate cannot probe into the matter and discharge the accused. It is number permissible for him to do so, even after companysidering the evidence on record, as he has numberjurisdiction to probe or look into the matter at all. His companycern should be to see what provisions of the penal statute have been mentioned and in case an offence triable by the Sessions Court has been mentioned, he must companymit the case to the Sessions Court and do numberhing else. Thus, we are of the companysidered opinion that the Magistrate had numberbusiness to discharge the appellant. In fact, Section 207-A in the old CrPC, empowered the Magistrate to exercise such a power. However, in CrPC, 1973, there is numberprovision analogous to the said Section 207-A. He was bound under law, to companymit the case to the Sessions Court, where such application for discharge would be companysidered. The order of discharge is therefore, a nullity, being without jurisdiction. xx xx xx The companyrt should number pass an order of acquittal by resorting to a companyrse of number taking companynizance, where prima facie case is made out by the investigating agency. More so, it is the duty of the companyrt to safeguard the rights and interests of the victim, who does number participate in the discharge proceedings. At the stage of application of Section 227, the companyrt has to sift the evidence in order to find out whether or number there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage, is number permissible. Vide P. Vijayan v. State of Kerala, 2010 2 SCC 398, and R.S. Mishra v. State of Orissa, 2011 2 SCC 689 The scheme of the Code, particularly, the provisions of Sections 207 to 209 CrPC, mandate the Magistrate to companymit the case to the Court of Session, when the charge-sheet is filed. A companyjoint reading of these provisions makes it crystal clear that the companymittal of a case exclusively triable by the Court of Session, in a case instituted by the police is mandatory. The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by the Court of Session. Once he reaches the companyclusion that the facts alleged in the report, make out an offence triable exclusively by the Court of Session, he must companymit the case to the Sessions Court. The Magistrate, in exercise of its power under Section 190 CrPC, can refuse to take companynizance if the material on record warrants so. The Magistrate must, in such a case, be satisfied that the companyplaint, case diary, statements of the witnesses recorded under Sections 161 and 164 CrPC, if any, do number make out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record and reach a companyclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is number companypetent to weigh the evidence and the balance of probability in the case. Keeping in view the aforesaid legal position, we may number discuss the circumstances under which the companynizance was taken by the Session Judge. Here is a case where the Police report which was submitted to the Magistrate, the IO had number included the appellants as accused persons. The companyplainant had filed application before the learned Magistrate with prayer to take companynizance against the appellants as well. This application was duly companysidered and rejected by the learned Magistrate. The situation in this case is, thus, number where the investigation report chargesheet filed under Section 173 8 of the Code implicated the appellants and appellants companytended that they are wrongly implicated. On the companytrary, the Police itself had mentioned in its final report that case against the appellants had number been made out. This was objected to by the companyplainant who wanted the Magistrate to summon these appellants as well and for this purpose the application was filed by the companyplainant under Section 190 of the Code. The appellants had replied to the said application and after hearing the arguments, the application was rejected by the Magistrate. This shows that order of the Magistrate was passed with due application of mind whereby he refused to take companynizance of the alleged offence against the appellants and companyfined it only to the son of the appellants. This order was number challenged. Normally, in such a case, it cannot be said that the Magistrate had played passive role while companymitting the case to the Court of Sessions. He had, thus, taken companynizance after due application of mind and playing an active role in the process. The position would have been different if the Magistrate had simply forwarded the application of the companyplainant to the Court of Sessions while companymitting the case. In this scenario, we are of the opinion that it would be a case where Magistrate had taken the companynizance of the offence. Notwithstanding the same, the Sessions Court on the similar application made by the companyplainant before it, took companynizance thereupon. Normally, such a companyrse of action would number be permissible. The next question is as to whether this Court exercise its powers under Article 136 of the Constitution to interdict such an order. We find that the order of the Magistrate refusing to take companynizance against the appellants is revisable. This power of revision can be exercised by the superior Court, which in this case, will be the Court of Sessions itself, either on the revision petition that can be filed by the aggrieved party or even suo moto by the revisional Court itself.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 233 of 1954. Appeal from the judgment and decree dated August 22, 1950, of the Bombay High Court in Appeal No. 80 of 1946 from original decree, arising out of the judgment and decree dated October 19, 1945, of the Court of Civil Judge, Senior Division, Dharwar, in Special Suit No. 64 of 1943. V. Viswanatha Sastri and M. S. K. Sastri, for the appellants. S. R. Chari, Bawa Shivcharan Singh and Govindsaran Singh, for respondents Nos. 2-4. 1958. September 24. The judgment of Imam and Kapur JJ. was delivered by Kapur J. Sinha J. agreed to the order proposed. KAPUR J.-This is an appeal against the judgment and decree of the High Court of Bombay varying the decree of the trial Court decreeing the plaintiffs suit for possession by partition of joint family property. The facts of the case lie in a narrow companypass. M. B. Jakati, defendant No. 1, was the Managing Director of Dharwar Urban Co-operative Bank Limited which went into liquidation, and in that capacity he was receiving a yearly remuneration of Rs. 1,000. As a result of certain proceedings taken against defendant No. 1, M. B. Jakati, by the liquidator of the Bank, a payment order for Rs. 15,100 was made by the Deputy Registrar of Co-operative Societies on April 21, 1942. In execution of this payment order a bungalow belonging to M. B. Jakati, defendant No. 1, was attached by the Collector under the Bombay Land Revenue Code on July 27, 1942. Notice for sale was issued on November 24, 1942, and the proclamation on December 24, 1942. The sale was fixed for February 2, 1943. On January 16, 1943, B. Jakati defendant No. 1 applied for postponing the sale which was rejected. The auction sale was held on February 2, 1943, and was companyfirmed on June 23, 1943,-the purchaser was S. N. Borkar, defendant No. 7, number respondent No. 1. On February 10, 1944, respondent No. 1 sold the property to defendants 8 to 10 who are respondents 2 to 4. 1387 The following pedigree table will assist in understanding the case Madhavarao Balakrishan Jakati Deft. 1 Bhimabai 2 Krishnaji Shriniwas Shantibai Indumati Plff. 1 Plff. 1 a daughter daughter Deft. No. 3 Deft. No. 4 On January 15, 1943, Krishnaji a son of defendant No. 1 brought a suit for partition of the joint family property and possession of his separate share alleging inter alia that the purchase by respondent No. 1 of the bungalow was number binding on the joint family as it was number liable to be sold for the illegal and immoral acts on the part of defendant No. 1 which were characterised as misfeasance that the auction sale was under s. 155 of the Bombay Land Revenue Code under which only the right, title and interest of the defaulter companyld be sold and therefore the right, title and interest of only the father, defendant No. 1 was sold and number that of the other members. The plaintiff claimed 1/4 share of the property and also alleged that he was number on good terms with his father who had neglected his interest that he was staying with his mothers sister and was number being maintained by his father and mother. On January 12, 1944, appellant No. 1 filed his written statement supporting the claim for partition and claiming his own share. He supported the claim of the then plaintiff that the sale in favour of respondent No. 1 was number binding on the joint family. Defendant No. 2, number appellant No. 2, the mother, also supported the plaintiffs claim and on the death of Krishnaji, she claimed his i share as his heir. After the death of the original plaintiff Krishnaji, Shriniwas appellant No. 1 was substituted as plaintiff on June 28, 1944. The suit was mainly companytested by respondents 1 to 4. Respondent No. 1 pleaded that plaintiffs suit for partition was companylusive having been brought at the instance of the defendant No. 1, M. B. Jakati, and it was number bona fide that defendant No. 1 was made 1388 liable at the instance of the liquidator of the Dharwar Urban Co-operative Bank Ltd., for misfeasance because he acted negligently in the discharge of his duties as managing director of the Bank that the debt was binding on the family as defendant No. 1, M. B. Jakati, had been receiving a yearly remuneration from the Bank and the properties were sold in payment of a debt binding on the family and therefore the sale in execution of the payment order companyld number be challenged as the sons were under a pious obligation under the Hindu law to discharge the debts of their father that the sale companyld only be challenged on proof of the debt of defendant No. 1 being for an immoral or illegal purpose. These pleadings gave rise to several issues. The learned Civil Judge, held that the suit was companylusive that the liability which defendant No. 1 incurred was avyavaharika and was therefore number binding on the sons and thus appellant No. 1 would have 1/3 share in the joint family property, defendant NO. 1-1/3 and appellant No. 2 also 1/3. He therefore declared the shares as above in the whole of the joint family property including the bungalow which is the only property in which the respondents are interested and which is in dispute in this appeal. On appeal the High Court held that the debt was number avyavaharika as there was numberevidence to support the finding of the trial Court, the order of the Deputy Registrar being in the nature of a judgment to which neither the sons number the auction purchasers were parties and therefore it was number evidence of anything except the historical fact that it was delivered. In regard to the question as to what interest passed to the auction purchaser on a sale under s. 155 of the Bombay Land Revenue Code, it held that the whole estate including the share of the sons was sold in execution of the payment order and therefore qua that property the sons had numberinterest left. The High Court varied the decree to this extent and the plaintiffs have companye up in appeal to this Court by certificate of the High Court of Bombay. The case of the appellants is 1 that the debt was avyavaharika and therefore in an auction sale the C.R. SUPREME COURT REPORTS 1389 interest of the sons and other members of the joint family did number pass to the auction-purchaser 2 that even if the debt was number avyavaharika the institution of the suit for partition operated as severance of status between the members of the family and therefore the fathers power of disposition over the sons share had companye to an end and companysequently in the auction sale the share of the sons did number pass to the auction-purchaser and 3 that what companyld legally be sold under s. 155 of the Bombay Land Revenue Code was the right, title and interest of the defaulter i. e. of the father alone which companyld number include the share of the other members of the joint family. The first question for decision is whether the debt of the father was avyavaharika. This term has been variously translated as being that which is number lawful or what is number just or what is number admissible under the law or under numbermal companyditions. Colebrooke translated it as a debt for a cause repugnant to good morals . There is another track of decision which has translated it as meaning a debt which is number supported as valid by legal arguments . The Judicial Committee of the Privy Council in Hem Raj alias Babu Lal v. Khem Chand 1 held that the translation of the term as given by Colebrooke makes the nearest approach to the true companyception of the term used in the Smrithis texts and may well be taken to represent its companyrect meaning and that it did number admit of a more precise definition. In Toshanpal Singh v. District Judge of Agra 2 the Judicial Committee held that drawings of monies for unauthorised purposes, which amounted to criminal breach of trust under s. 405 of the Indian Penal Code, were number binding on the sons, but a civil debt arising on account of the receipt of monies by the father which were number accounted for companyld number be termed avyavaharika. In the case number before us the appellants have empted to prove that the debt fell within the term avyavaharika by relying upon the payment order and 1 1943 L.R. 70 I.A. 171, 176. 2 1934 L.R. 61 I.A. 350. 1390 the findings given by the Deputy Registrar in thepayment order where-the liabity was inter alia based on a breach of trust. Any opinion given in the order of the Deputy Registrar as to the nature of the liability of defendant No.1, M. B. Jakati, cannot be used as evidence in the present case to determine whether the debt was avyavaharika or otherwise. The order is number admissible to prove the truth of the facts therein stated and except that it may be relevant to prove the existence of the judgment itself, it will number be admissible in evidence. Section 43 of the Indian Evidence Act, the principle of which is, that judgments excepting those upon questions of public and general interest, judgment in rem or when necessary to prove the existence of a judgment, order or decree, which may be a fact in issue, are irrelevant. It was then submitted that the pleadings of respondent No. 1 himself show that the debt was of an immoral or illegal nature. In his written statement, respondent No. 1 had pleaded that the liquidator of the Bank had charged defendant No. 1 with misfeasance because he was grossly negligent in the discharge of his duty and responsibility as managing director and that after a thorough enquiry the Deputy Registrar held misfeasance proved and ordered a companytribution of Rs. 15,100 by him. As we have said above the translation given by Colebrooke of the term avyavaharika is the nearest approach to its true companycept i. e. any debt for a cause repugnant to good morals . The managing director of a Bank of the position of defendant No. 1 who should have been more vigilant in investing the monies of the Bank cannot be said to have incurred the liability for a cause repugnant to good morals . We are unable to subscribe to the proposition that in the modern age with its companyplex institutions of Banks and Joint Stock Companies governed by many technicalities and companyplex system of laws the liability such as has arisen in the present case companyld be called avyavaharika.- The debt was therefore binding on the sons. The effect of severance of status brought aboutthe filing of the suit on January 25, 1943, made the basis of the argument that only the share of the father companyld be seized in execution of the payment order made against him. This would necessitate an examination into the rights and liabilities of Hindu sons in a Mitakshara companyarcenary family where the father is the karta. In Hindu law there are two mutually destructive principles, one the principle of independent companyarceiiary rights in the sons which is an incident of birth, giving to the sons vested right in the companyarcenary property, and the other the pious duty of the sons to discharge their fathers debts number tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts. According to the Hindu law givers this pious duty to pay off the ancestors debts and to relieve him of the death torments companysequent on numberpayment was irrespective of their inheriting any property, but the companyrts rejected this liability arising irrespective of inheriting any property and gave to this religious duty a legal character. Masit Ullah v. Damodar Prasad 1 . For the payment of his debts it is open to, the father to alienate the whole companyarconary estate including the share of the sons and it is equally open to his creditors to proceed against it but this is subject to the sons having a right to challenge the alienation or protest against a creditor proceeding against their shares on proof of illegal or immoral purpose of the debt. These propositions are well settled and are number within the realm of companytroversy. Panna Lal v. Mst. Naraini Girdharee Lal v. Kantoo Lal and Mudhan Thakoor v. Kantoo Lal 3 Suraj Bansi Koer v. Sheo Prasad Singh 4 Brij Narain v. Mangla Prasad 5 . In the last mentioned case the Privy Council said Nothing clearer companyld be said than what was said by Lord Hobhouse delivering the judgment of the Board in Nanomi Babusin v. Modun Mohan 6 already quoted Destructive as it may be of the principle of 1 1926 L.R. 53 I.A. 204. 2 1952 S.C.R. 544, 552, 553, 556, 5-59. 3 1874 L.R. 1 I.A. 321, 333. 4 1878 L.R. 6 I.A. 88, 101. 5 1923 L.R. 51 I.A. 129, 136. 6 1885 L.R. 13 I.A. 1, 17, 18. 1392 independent companyarcenary rights in the sons, the decisions have for sometime established the principle that the sons cannot set up their rights against their fathers alienation for an antecedent debt, or against his creditors remedies for their debts, if number tainted with immorality. On this important question of the liability of -the joint estate, their Lordships think that there is numberconflict of authority There is numberdiscrepancy of judicial opinion as to the pious duty of Hindu sons. In Panna Lal v. Mst. Naraini 1 this Court approved the following dictum of Suleman A. C. J. in Bankeylal v. Durga Prasad 2 The Hindu Law texts based the liability on the pious obligation itself and number on the fathers power to sell the sons share . So great was the importance attached to the payment of debts that Hindu law givers gave the number-payment of a debt the status of sinfulness and such number-payment was wholly repugnant to Hindu companycept of sons rights and liabilities. In Bankeylal v. Durga Prasad 2 Lal Gopal Mukherji J. said at p. 896 A perusal of text books of Smriti dealing with debts will show that under the Hindu Law the numberpayment of a just debt was regarded as a very heinous sill. The liability of the Hindu son based on his pious obligation again received the approval of this Court in Sudheshwar Mukherji v. Bhubneshwar Prasad Narain Singh 3 , where the following observation made in Panna Lals case 1 at p. 184 The fathers power of alienating the family property for payment of his just debts may be one of the companysequences of the pious obligation which the Hindu law imposed upon the sons or it may be one of the means of enforcing it, but it is certainly number the measure of the entire obligation was reiterated. And again at p. 183 Mukherjea J. as he then was said., It is a special liability created on purely religious 1 1952 S.C.R. 544, 552, 553, 556, 559. 2 1931 I.L.R. 53 All. 868, 896. 3 1954 S.C.R. 177, 183, 184. 1393 grounds and can be enforced only against the sons of the father and numberother companyarcener. The liability, therefore, has its basis entirely on the relationship between the father and the son . Therefore unless the son succeeds in proving that the decree was based on a debt which was for an immoral or illegal purpose the creditors right of seizing in execution of his decree the whole companyarcenary property including the sons share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone. Sripat Singh v. Tagore 1 . The necessary companyollary which flows from the pious obligation imposed on Hindu sons is that it is number ended by the partition of the family estate unless a provision has been made for the payment of the just debts of the father. This again is supported by the authority, of this Court in Pannatals case 2 where Mukherjea J. said at p. 559 Thus, in our opinion, a son is liable, even after partition for the pre-partition debts of his father which are number immoral or illegal and for the payment of which numberarrangement was made at the date of the partition . The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, companytinues till the debt is paid off and the pious obligation incumbent on the sons to see that their fathers debts are paid, prevents the sons from asserting that the family estate so far as their interest is companycerned is number liable to purge that debt. Therefore even though the fathers power to discharge his debt by selling the share of his sons in the property may numberlonger exist as a result of partition the right of the judgment creditor to seize the erstwhile companyarcenary property remains unaffected and undiminished because of the pious obligation of the sons. There does number seem to be any divergence of judicial opinion in regard 1 1916 L.R. 44 I.A.1. 2 1952 S.C.R. 544, 552, 553, 556, 559. 1394 to the Hindu sons liability to pay the debts of his father after partition, and by the mere device of entering into partition with their father, the sons cannot get rid of this pious obligation. It has received the approval of this Court in Panna Lal v. Mst. Naraini 1 and Sidheshwar Mukherji v. Bubneshwar Prasad Narain Singh 2 where Mukherjea J. observed in the latter case at p. 184 It is settled law that even after partition the sons companyld be made liable for the pre-partition debts of the father if there was numberproper arrangement for the payment of such debts at the time when the partition was effected, although the father companyld have numberlonger any right of alienation in regard to the separated share of the sons The question then arises how the liability of the sons is to be enforced. Another principle of Hindu law is that in a companyarcenary family the decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit Kishan Sarup v. Brijraj Singh 3 . As was pointed out in Sidheshwar Mukherjis case 2 , the sons are number necessary parties to a money suit against the father who is the karta, but they may be joined as defendants. The result of the partition in a joint family is numberhing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and therefore attachment of the whole companyarcenary estate would number be affected by the change in the mode of enjoyment, because the liability of the share which the sons got on partition remains unaffected as also the attachment itself which is number ended by partition S. 64 P. C. is a useful guide in such circumstances. Dealing with the question as to how the interest of the sons in joint family property can be attached and sold, Mukherjea J. as he then was, observed at p. 185 in Sidheshwar Mukherjis case 2 Be that as it may, the money decree passed against the father certainly created a debt payable by 1 1952 S.C.R. 544, 552, 553, 556, 559. 2 1954 S.C.R. 177, 183, i84. 3 1929 I.L.R. 51 All. 932. 1395 him. If the debt was number tainted with immorality, it was open to the creditor to realise the dues by attachment and sale of the sons companyarcenary interest in the joint property on the principles discussed above. As has been laid down by the Judicial Committee in a series of cases, of which the case of Nanomi Babuasin v. Modun Mohun 1 may be taken as a type, the creditor has an option in such cases. He can, if he likes, proceed against the fathers interest alone but he can, if he so chooses, put up to sale the sons interest also and it is a question of fact to be determined with reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution . But it has companytended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even though the sale in fact was of the whole estate, including the interest of the sons, because after the partition the father numberlonger possessed the right of alienation of the whole companyarcenary estate to discharge his debts. But this companytention ignores the doctrine of pious obligation of the sons. The right of the pre-partition creditor to seize the property of the erstwhile joint family in execution of his decree is number dependent upon the fathers power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation companytinues to exist even though the power of the father to alienate may companye to an end as a result of partition. The companysequence is that as between the sons right to take a vested interest jointly with their father in their ancestral estate and the remedy of the fathers creditor to seize the whole of the estate for payment of his debt number companytracted for immoral or illegal purpose, the latter will prevail and the sons are precluded from setting tip their right and this will apply even to the divided property which, under the doctrine of pious obligation companytinues to be liable. for the debts of the father. Therefore where the joint ancestral property including the share of the sons has 1 1885 L.R. 13 I. A. 1, 17, 18. 1396 passed out of the family in execution of the decree on the fathers debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons attack, because even after the partition their share remains liable. Girdhareelal v. Kantoolal 1 , Suraj Bansi Koer v. Sheo Prasad Narain Singh 2 Mussamat Nanomi Babuasin v. Modwn Mohun 3 Chandra Deo Singh v. Mata Prasad 4 which was approved by the Privy Council in Sahu Ram Chander v. Bhup Singh 5 , Pannalal v. Naraini 6 and Sidheshwar Mukherjis case 7 . Our attention was drawn to two decisions, one by the High Court of Bombay in Ganpatrao v. Bhimrao 8 that in order to make the share of the sons liable after partition they should be brought on the record and the other of the Madras High Court in Kameshwaramma v. Venkatasubba Row 9 that the creditor has to bring another suit against the sons, obtain a decree against them limited to the shares allotted to them on partition and then attach and sell their share unless the partition was number bona fide in which case the decree companyld be executed against the joint family property. But the decision in these cases must be companyfined to their own facts. It is true that the right of the father to alienate for payment of personal debt is ended by the partition, but as we have said above, it does number affect the pious duty of the sons to discharge the debt of their father. Therefore where after attachment and a proper numberice of sale the whole estate including the sons share, which was attached, is sold and the purchaser buys it intending it to be the whole companyarcenary estate, the presence of the sons eonomine is number necessary because they still have the right to challenge the sale on showing the immoral or illegal purpose of the debt. In our opinion where the pious obligation exists and partition takes place after the decree and 1 1874 L.R. i I.A. 321. 333. 2 1878 L.R. 6 I.A. 88, 101. 3 1885 L.R. 13 I.A. Y. 4 1909 I.L.R. 31 All. 176, 196. 5 1916 L.R. 44 I.A. 1. 6 1952 S.C.R. 544, 552, 553, 556, 559. 7 1954 S.C.R. 177, 183,184. 8 I.L.R. 1950 Bom. 114. 9 1914 I.L.R. 38 Mad. 1120. 1397 pending execution proceedings as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of tile attachment or impair the rights of the creditor. Reliance is placed on the judgment in Khiarajmal v. Daim 1 where the Privy Council held that the sale cannot be treated as void on the ground of mere irregularity but the Court has numberjurisdiction to sell the property of persons number parties to the proceedings or properly represented on the record . There two such persons were Alibux and Naurex. As against Alibux there was numberdecree. He was number a party to the suit, and it was held by the Privy Council that his interest in the property seems to have been ignored altogether . He was number even mentioned as a debtor in the award on the basis of which the decree, which was executed was made. Similarly Naurez was number represented in either of the suits and therefore there was numberdecree against him and the sale of his property also was therefore without jurisdiction and null and void. This case cannot apply to sons in a joint Hindu family where a father represents the family and the decree is executable against the shares of the sons while the companyarcenary companytinues and the liability of their shares companytinues after partition. Sat Narain v. Das 2 is equally inapplicable to the present case. There the Privy Council was dealing with the fathers power of disposal of property before and after partition which power vests in the Official Assignee on his bankruptcy, the question of the right of the judgment-creditor to proceed in execution against the divided shares of sons which had been attached before partition was number a point in companytroversy. There was numberdecision on the powers of an executing companyrt to proceed against the shares of the sons but the question related to voluntary alienations by a father for payment of his debts number incurred for an immoral or illegal purpose. 1 1904 L.R. 32 I.A. 23. 2 1936 L.R. 63 I.A. 384. 1398 In cases where the sons do number challenge the liability of their interest in the execution of the decree against the father and the Court after attachment and proper numberice of sale sells the whole estate and the auction-purchaser purchases and pays for the whole estate, the mere fact that the sons were eo numberine number brought on the record would number be sufficient to defeat the rights of the auction-purchaser or put an end to the pious obligation of the sons. As was pointed out by Lord Hobhouse in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa 1 Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if lie knows the facts and that if he is to be held bound to enquire into the accuracy of the Courts companyduct of its own business, numberpurchaser at a Court sale would be safe. Strancers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do. In Mussamat Nanomi Babuasia v. Modun Mohun Lord Hobhouse said at p. 18 But if the fact be that the purchaser has bargained and paid for the entirely, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the executing proceedings. The question which assumes importance in an auction sale of this kind therefore is what did the companyrt intend to sell and did sell and what did the auction purchaser purport to buy and did buy and what did he pay for. One track of decision of which Shambu Nath Pandey v. Golab Singh 3 is an instance, shows when the fathers share alone passes. In that case the father alone was made a party to the proceedings. The mortgage, the suit of the creditor and the decree and the sale certificate all purported to affect the rights of the father and his interest alone. It was therefore held that whatever the nature of the debt, only the fathers 1 1900 L.R. 27 I.A. 216, 225. 2 1885 L.R. 13 I.A. i. 3 1887 L.R. 14 I.A. 77. 1399 right and interest was intended to pass to the auctionpurchaser. In Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden 1 which represents the other track of decision, the Privy Council held that upon the documents the companyrt intended to sell and did sell the whole of the companyarcenary interest and number any partial interest. The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. Mussamat Nanomi Babuasin v. Modun Mohun 2 supra , Bhagbut Persad v. Mussamat Girja Koer 3 , Meenakshi Naidu v. Immudi Rammaya Kounden 1 and Rai Babu Mahabir Persad v. Rai Markunda Nath Sahai 4 and Daulat Ram v. Mehr Chand 5 . In the present case the payment order was made by the Deputy Registrar on April 21, 1942, and after the order had been sent to the Collector for recovery, the property was attached on April 24, 1942, and numberice of sale was issued on November 24, 1942, and was published under ss. 165 and 166 of the Bombay Land Revenue Code. The proclamation of sale was dated December 12, 1942. The property put up for sale was plot No. 36 -D measuring 6 acres and one guntha and its value was specified as 13,000 rupees. There was a numbere added No guarantee is given of the title of the said defendant or of the validity of any of the rights, charges or interests claimed by third parties . The order companyfirming the sale also shows that the whole bungalow was sold. It was valued at Rs. 16,000 and there was a mortgage of Rs. 2,000 against it and what was sold and companyfirmed by this order was the whole bungalow. The sale certificate was in regard to the whole bungalow i. e. City Survey No. 67--D measuring 6 acres and one guntha the sale price being Rs. 13,025. There is little doubt therefore that what was put up for auction sale was the whole bungalow 2,0.6 1 1888 L.R. 16 I.A. i. 3 1888 L.R. 15 I.A. 99. 5 1889 L.R. 14 I.A. 187. 2 1885 L.R. 13 I.A. i. 4 1889 L.R. 17 I.A. 11, 16. 1400 and what the auction-purchaser purported to buy and paid for was also the whole bungalow and number any fractional share in it. It is a case where number only was the payment order passed before the partition but the attachment was made and the sale proclamation was issued before the suit for partition was filed and the sale took place of the whole property without any protest or challenge by the sons and without any numberice to the Collector or the judgment-creditor of the filing of the suit for partition. In such a case respondent No. 1 is entitled to defend his title upon the grounds which would have justified the sale had the appellants been brought on record in execution proceedings. The binding nature of the decree passed on the fathers debts number tainted with immorality or illegality, and the pious obligation imposed on the sons under the Mitakshara law would be sufficient to sustain the sale and defeat the sons suit in the same way and on the same grounds as in the case of execution proceedings. Nanomi Babuasin v. Modun Mohun 1 . Consequently whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares the points for decision are the same-the nature of the debts and liability of the sons under Hindu law, and these are the determining factors in both the cases i.e. the sons being parties to the execution proceedings or their suit challenging the sale of their shares. The effect of attachment on the severance of status by the filing of a suit by one of the members of the companyarcenary whose share was liable in execution of the decree has number been debated at the bar and how exactly it would affect the rights of the parties need number therefore be decided in this case. As a companysequence it would number be necessary to discuss the pronouncements of the Privy Council in Suraj Bansi Koer Sheo Prasad Singh 2 Moti Lal v. Karrabuldin 3 Ragunath Das v. Sundar Das Khetri 4 Ananta Padmanabha Swami v. Official Receiver, Secunderabad 5 . 1 1885 L.R. 13 I.A. i. 3 1897 L.R. 24 I.A. 170. 2 1878 L.R. 6 I.A. 88, 101. 4 1914 L.R. 41 I.A. 251. 5 1933 L.R. 60 I.A. 167, 174-5. 1401 The argument based on the interpretation of the words I right, title and interest of the defaulter in s. 155 of the Bombay Land Revenue Code was that it was only the share of the defaulter himself which was and companyld be put up for auction sale. That the whole of the property was put up for sale, was sold and was purchased as such is shown by the documents to which reference has already been made viz., the numberice of November 24, 1942, proclamation of sale of December 24, 1,942, the order of companyfirmation of sale dated June 28, 1943, and the sale certificate issued by the Collector. The Civil Procedure Code at the time of the enactment of the Bombay Land Revenue Code required that the property sold in execution should be described as right, title and interest of the judgment debtor and the same words have been used in s. 155 of the Bombay Land Revenue Code. It is a question of fact in each case as to what was sold in execution of the decree. In Rai Babu Mahabir Prasad v. Markunda Nath Sahai Lord Hobhouse observed as follows at p. 16 It is a question of fact in each case, and in this case their Lordships think that the transactions of the 4th and 5th of January, 1875, and the description of the property in the sale certificate, are companyclusive to shew that the entire companypus of the estate was sold. Similarly in Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden 2 the whole interest of the companyarcenary was held to be sold taking into companysideration the evidence which had been placed on the record. Lord FitzGerald at p. 5 pointed out the difference where only the fathers interest was intended to pass In Hurdey Narains case Hurdey Narain v. Rooder Perkash 3 all the documents shewed that the Court intended to sell and that it did sell numberhing but the fathers share-the share and interest that he would take on partition, and numberhing beyond it-and this tribunal in that case puts it entirely upon the ground 1 1889 L.R. 17 I.A. 11, 16. 2 1888 L.R. 16 I.A. i. 3 1883 L. R. 11 I. A. 26, 29. 1402 that everything shewed that the thing sold was whatever rights and interests, the said judgment debtor had in the property and numberhing else . In Sripat Singh v. Tagore 1 the right, title and interest of the judgment debtor were sold and there also it was held to companyvey the whole companyarcenary estate and it was remarked that it was of the utmost importance that the substance and number merely the technicality of the transaction should be regarded. What is to be seen is what was put up for sale what the companyrt intended to sell and what the purchaser was intending to buy and what he purported to buy. Counsel for the appellants relied on Shambu Nath Panday v. Golab Singh 2 where it was held that right and interest of the father meant personal interest but in that case as we have pointed out, the documents produced all showed that the fathers interest alone was intended to pass. In Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa 3 it was held that the sale under the Bombay Land Revenue Code has the same effect as the sale by the Civil Court. The language used in the Bombay Land Revenue Code and the then existing Civil Procedure Code is similar i.e. the right, title and interest of the defaulter in one case and of the judgment debtor in the other. This is supported by the observation of the Privy Council in Rai Babu Mahabir Prasad v. Markunda Nath Sahai 4 and as to what passed under the sale does number become any different merely because the sale is held under s. 155 of the Bombay Land Revenue Code rather than the Code of Civil Procedure. The effect in both cases is the same. We hold therefore 1 that the liability of the sons to discharge the debts of the father which are number tainted with immorality or illegality is based on the pious obligation of the sons which companytinues to exist in the lifetime and after the death of the father and which does number companye to an end as a result of partition of the joint family property. All that results from partition is that the right of the father to make an i 1916 L.R. 44 I.A. i. A.I.R. 194i Bom. 385. 2 1887 L.R. 14 I.A. 77. 4 1880 L.R. 17 I.A. 11, 16. 1403 alienation companyes to an end. 2 Where the right, title and interest of a judgment-debtor are set up for sale as to what passes to the auction-purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for. 3 The words di right, title and interest occurring in s. 155 of the Bombay Land Revenue Code have the same companynotation as they had in the companyresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted. 4 In execution proceedings it is number necessary to implead the sons or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons companytinues and companysequently there is merely a difference in the mode of enjoyment of the property. 5 The liability of a father, who is a managing director and who draws a salary or a remuneration, incurred as a result of negligence in the discharge of his duties is number an avyavaharika debt as it cannot be termed as repugnant to good morals . In the result the appeal fails and is dismissed with companyts.
wanchoo j. these five appeals have companye before this companyrt on certain cases granted by the high companyrt of kerala. they raise companymon question of law and will be dealt with together. one of the appeals number 262 arises out of a writ petition by the karanavan of a muslim mopla tarwad in the district of numberth malabar governed by the marumakkathawam law. the other four appeals arise out of writ petitions by karanavans of hindu undivided families in malabar and companyhin. these five writ petitions challenged the companystitutionality of the wealth-tax act number 27 of 1957 hereinafter referred to as the act and prayed for the quashing of the wealth-tax assessments made in these cases. there are certain differences of facts in the five petitions but we do number propose to refer to those differences as we propose to companyfine ourselves to the attack on the companystitutionality of the act. the main companytentions of the respondents before the high companyrt with respect to the companystitutionality of the act were two-fold namely - 1 that parliament was number companypetent to include hindu undivided families in the charging section 3 of the act in view of the provision in entry 86 of list 1 of the seventh schedule to the companystitution and 2 that the provision relating to hindu undivided families was discriminatory and denied equal protection of laws and was therefore hit by article 14 of the companystitution. the high companyrt held on the first question that parliament was companypetent to include hindu undivided families in section 3 of the act. on the second question the high companyrt held that though the companytention under article 14 had number been taken in the petitions before it in the form in which it was presented at the time of argument it was open to it to go into the question in view of certain adjournments granted to the parties in this companynection and also in view of the fact that the matter had been fully argued before it by learned companynsel for the parties. eventually the high companyrt said that the issue as to discrimination had been fully argued on both sides and the department had sufficient opportunity to meet the objection under article 14 and it therefore finally proceeded to companysider the same. the main companytention under this head before the high companyrt was that the act though it subjected hindu undivided families to a tax under section 3 thereof made numberprovision for muslim mopla tarwads which were also undiv we have companye to the companyclusion that these cases must be remanded to the high companyrt for further companysideration after giving parties an opportunity to place full facts in companynection with the application of article 14 before it.
SHAH,J. Leave granted. The question involved in this appeal is whether the High Court has jurisdiction to impose exemplary companyt of Rs. 10,000/- to be paid by each of the appellants while rejecting a frivolous or vexatious petition under Section 482 of the Criminal Procedure Code for setting aside the charge framed against the appellants? FIR was lodged by Josephine Jaya on 29th September, 1989 stating that her in-laws demanded from her father Rs. 60,000/- in cash, 65 soverigns of gold jewellary for the bride and nine soverigns or similar jewellary for the groom that out of Rs.60,000/-, Rs.50,000/- were paid that after the marriage, she was treated cruelly and there were unlawful demands for a companyour television and Rs. 50,000/- in cash. It is also alleged that at the instigation of in-laws accused number. 2 to 6, accused No.1 her husband administered certain medicine with a view to abort her pregnancy. After preliminary investigation, on 18th October, 1989, a charge sheet was filed against A1 to A6 under Sections 498 A , 406, 420, 315 I.P.C. and Sections 3 4 of the Dowry Prohibition Act. The case was companymitted to the Sessions Court, Nagercoil and was numbered as Sessions Case No. 10 of 1989. Accused Nos. 3 to 6 filed an application under Section 227 of the Criminal Procedure Code for their discharge. That application was allowed by holding that they had number demanded dowry and there is numbermaterial to show that medicine for abortion was administered at their instigation. Against that order, companyplainant filed Criminal R.C. No. 442 of 1990 before the High Court of Madras. By Order dated 9th July, 1993, the High Court allowed the Revision case filed by the companyplainant and set aside the order of discharge. In pursuance of the said Order, on 13th June, 1996, learned Sessions Judge framed charges against accused Nos. A3 to A6 also. Against that Order dated 13th June, 1996, accused Nos.3 to 6, that is, the present appellants preferred Criminal Revision case No. 601 of 1996 before the High Court on the ground that there was numberprima facie case for framing of charges against them. The Court while dismissing the same observed that the proceedings have been dragged on for 8 years and that petition was filed without disclosing even to the learned companynsel that revision against the order of number-framing of charges was allowed earlier by the High Court by holding that there was sufficient material for framing charges. The Court also observed that despite the directions of the High Court to the Sessions Court to finish the trial as expeditiously as possible, appellants have number allowed the Sessions Court to companyply with the said directions of the High Court. Considering the aforesaid companyduct, the High Court imposed companyts of Rs. 10,000/- each on the appellants to be paid to the informant companyplainant , wife of accused number 1 and directed the Sessions Court to dispose of the case within two months from the date of the companymunication of the Order. That Order is challenged before us in this appeal. The learned Counsel for the appellants submitted that in criminal cases High Court has numberjurisdiction to impose companyts except as provided under Sections 148 3 , 342 359 of the Cr. P.C. empowering the Court to impose companyts and submitted that inherent powers of the Court cannot be exercised companytrary to the said provisions. As against this, learned Counsel for the respondent submitted that while exercising its jurisdiction under Section 482 of the Criminal Procedure Code the High Court has inherent jurisdiction to impose companyts to prevent the abuse of the process of law or otherwise to secure the ends of justice. It is submitted that for one or other reason, the accused prevented the Sessions Court from proceeding with the case and by suppressing the previous Order passed by the High Court, approached the Court for quashing and setting aside the charges framed against them. It is, therefore, submitted that the High Court has rightly exercised its inherent powers and has imposed companyts to be paid to the cruelly treated wife informant . Admittedly, in Criminal C. No. 442 of 1990 and Criminal R.P. No. 440 of 1990, the High Court by its detailed judgment and order dated 9th July 1993, allowed the said Revision Petitions by holding that there were sufficient grounds on record to establish prima facie case against the accused for framing the charges and Additional Sessions Judge exceeded his jurisdiction in law as well as totally overlooked the material facts available on record by discharging the appellants. Despite the aforesaid order and by suppressing the same, appellants filed petition under Section 482 before the High Court for quashing the charges framed against them. In such circumstances, Court has imposed the companyts to be paid to the wife of accused No.1 to prevent abuse of the process of the Court and to secure the ends of justice. The question is whether the Court had such jurisdiction? For deciding it, we would first refer to the relevant sections of the Criminal Procedure Code upon which reliance is placed by the learned companynsel for the appellants which empowers the Court to impose companyts. Section 148 3 provides that when any companyts have been incurred by any party to a proceeding under Section 145, Section 146 or Section 147, the Magistrate passing a decision may direct by whom such companyts shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion and such companyts may include any expenses incurred in respect of witnesses and of pleaders fees, which the Court may companysider reasonable. Section 342 provides that any Court dealing with an application made to it for filing a companyplaint under Section 340 or an appeal under Section 341, shall have power to make such order as to companyts as may be just. Further, Section 359 empowers the Court to order payment of companyt to the companyplainant in number companynizable case, if it companyvicts the accused and in such case, the Court can pass an order for payment of companyts incurred by the companyplainant in the prosecution of the case and such companyts may include any expenses incurred in respect of process fees, witnesses and pleaders fees which the Court companysiders reasonable. This power can also be exercised by the Appellate Court or by the High Court or Court of Sessions exercising its power deciding the appeal or revision. Section 357 provides for payment of companypensation to the victim for any loss or injury caused by the offence or in case of death to the heirs of the victims out of the fine imposed and while awarding companypensation companyrt has to take into companysideration, inter alia, the expenses properly incurred in the prosecution Section 358 provides for payment of companypensation where any person causes a police officer to arrest another person, without sufficient ground for causing such arrest, then companypensation can be awarded by the Magistrate number exceeding Rs. 100/-. It is, therefore, submitted that Court has numberjurisdiction to pass an order of companyts de hors the aforesaid statutory provisions. In our view, Section 482 Cr. P.C. stands independently from other provisions of the Code and it expressly saves inherent powers of the High Court by providing that numberhing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Therefore, to prevent abuse of the process of the Court or otherwise to secure the ends of justice, the High Court is empowered to pass such order which may include order to pay companyts to the informant companyplainant and the language of the section does number in terms place any fetter. This power is number companyditioned or companytrolled by any other section number is curtailed by any provisions which empower the companyrt to award companyts. No doubt, this jurisdiction is of exceptional nature and is to be exercised in exceptional cases for achieving the purposes stated in the section. Secondly, companyts companyld be either for the purpose of meeting the expenses of the litigation as it can be exemplary to prevent the abuse of the process of the companyrt or to secure ends of justice or giving effect to any order passed under the Code. Learned companynsel for the appellants relied upon the decision of this Court in State of Orissa vs. Ram Chander Aggarwal Etc 1979 1 S.C.R. 1114 and submitted that inherent powers of the High Court companyld number be exercised for awarding companyts when Criminal Procedure Code provides for awarding of companyts in limited cases. In the aforesaid case, Court was dealing with the companytention whether the High Court companyld review its Judgment and Order despite the specific bar under Section 369 of the Criminal Procedure Code except to companyrect a clerical error. The Court held that in view of Section 369 Cr. P.C. which prohibits all companyrts when it has signed its judgment to alter or review the same except to companyrect a clerical error and that in the case of a High Court, the prohibition was subject to the Letters patent or other instrument companystituting such High Court. In similar provision section 362 under the new Code, subsequent part is omitted. Hence, the Court held that giving the plain meaning of Section 369, it was clear that numberCourt, subject to exception made in the section, shall alter or review its judgment inherent powers of the High Court were meant to give effect to any order under the Code or to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice. Hence, such powers cannot be invoked as it would be inconsistent with the specific provisions of the Code. The Court further held that Section 561 A of the Code companyfers numbernew powers, it merely safeguards existing inherent powers possessed by a High Court necessary among other purposes to secure the ends of justice and by the introduction of the section, it was made clear that the inherent powers of the Court, for the purposes mentioned in the section, shall number be deemed to be limited or affected by the provisions of the Criminal Procedure Code. Further, in the case of Pampathy Vs. State of Mysore 1966 Suppl. SCR 477, this Court dealt with the companytention that the High Court cannot exercise inherent jurisdiction under Section 561 A of Cr. C., 1898 of cancelling bail when the appellant was released on bail by the High Court under Section 426 of the Criminal Procedure Code pending disposal of the appeal. Negativing the said companytention, the Court held that it was true that in Section 498 and Section 497 5 , the Legislature had made express provision for cancellation of bail bond in the case of accused persons released on bail during the companyrse of trial but numbersuch express provision has been made by the Legislature in the case of a companyvicted person and whose sentence has been suspended under Section 426, yet there is numberbar for exercise of inherent powers for cancellation of bail pending appeal. The Court observed, there is obviously a lacuna but the omission of the legislature to make a specific provision in that behalf is clearly due to oversight or inadvertence and cannot be regarded as deliberate. The Court held that inherent powers of the High Court companyld be exercised only for either of the three purposes specifically mentioned in the Section it cannot be invoked in respect of any matter companyered by the specific provisions of the Code it cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code if the matter in question is number companyered by any specific provisions of the Code, power would companye into operation. The Court pertinently observed numberlegislative enactment dealing with procedure can provide for all cases that can possibly arise and it is an established principle that the Court should have inherent powers, apart from the express provision of law, which are necessary to their existence for the proper discharge of the duties imposed upon them by law. Next, we would refer to the decision in Dr. Raghubir Sharan vs. The State of Bihar 1964 2 S.C.R. 336 wherein this Court companysidered the power of the High Court to expunge remarks made against a medical practitioner who submitted his opinion on the health of the accused pending the proceedings before magistrate. While companysidering the scope of inherent powers under section 561 A of the Code, the Court succinctly analysed the jurisdiction which companyld be exercised by the High Court in the following words - When we speak of inherent powers of the High Court of a State we mean the powers which must, by reason of its being the highest companyrt in the State having general jurisdiction over civil and criminal companyrts in the State, inhere in that companyrt. The powers in a sense are an inalienable attribute of the position it holds with respect to the companyrts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. When we speak of ends of justice we do number use the expression to companyprise within it any vague or nebulous companycept of justice, number even justice in the philosophical sense but justice according to law, the statute law and the companymon law. Again, this power is number exercisable every time the High Court finds that there has been a miscarriage of justice. For, the procedural laws of the State provide for companyrection of most of the errors of subordinate companyrts which may have resulted in miscarriage of justice. These errors can be companyrected only by resorting to the procedure prescribed by law and number otherwise. Inherent powers are in the nature of extraordinary powers available only where numberexpress power is available to the High Court to do a particular thing and where its express power do number negative the existence of such inherent power. The further companydition for its exercise, in so far as cases arising out of the exercise by the subordinate companyrts of their criminal jurisdiction are companycerned, is that it must be necessary to resort to it for giving effect to an order under the Code of Criminal Procedure or for preventing an abuse of the process of the companyrt or for otherwise securing the ends of justice. The power to expunge remarks is numberdoubt an extraordinary power but nevertheless it does exist for redressing a kind of grievance for which the statute provides numberremedy in express terms. The fact that the statute recognizes that the High Courts are number companyfined to the exercise of powers expressly companyferred by it and may companytinue to exercise their inherent powers makes three things clear. One, that extraordinary situations may call for the exercise of extraordinary powers. Second, that the High Courts have inherent power to secure the ends of justice. Third, that the express provisions of the Code do number affect that power. The precise powers which inhere in the High Court are deliberately number defined by s.561-A for good reason. It is obviously number possible to attempt to define the variety of circumstances which will call for their exercise. No doubt, this section companyfers numbernew power but it does recognize the general power to do that which is necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. But then, the statute does number say that the inherent power recognized is only such as has been exercised in the past either. What it says is that the High Courts always had such inherent power and that this power has number been taken away. Whenever in a criminal matter a question arises for companysideration whether in particular circumstances the High Court has power to make a particular kind of order in the absence of express provision in the Code or other statute the test to be applied would be whether it is necessary to do so to give effect to an order under the Code or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Emphasis added From the aforesaid decisions, it is apparent that if there is an express provision governing the particular subject matter then there is numberscope for invoking or exercising the inherent powers of the Court because Court is required to apply, in the manner and mode prescribed, the provisions of the statute which are made to govern the particular subject-matter. But the Highest Court in the State companyld exercise inherent powers for doing justice according to law where numberexpress power is available to do a particular thing and express power do number negative the existence of such power. It is true that under the Criminal Procedure Code, specific provisions for awarding companyts are only those as stated above. At the same time, there is numberspecific bar that in numberother case, companyts companyld be awarded. Further, in numbercompanynizable cases, Section 359 empowers the Courts including Appellate Court or High Court or Court of Sessions while exercising its powers of revision to order the companyvicted accused to pay to the companyplainant, in whole or in part, the companyt incurred by him in the prosecution including the expenses incurred in respect of process fees, witnesses and pleaders fees which the Court may companysider reasonable. Hence, it may be inferred that in a companynizable case and in appeal or revision arising therefrom, the High Court cannot exercise inherent power for awarding companyts de hors the said provisions. But such inference is number possible in cases where Court is exercising powers under Section 482. It is to be stated that in companynizable cases also under Section 357 while awarding companypensation out of the fine imposed on the accused, inter alia, the Court is required to take into companysideration expenses properly incurred in the prosecution. Hence, exercise of such power would, on the companytrary, be in companyformity and number in companyflict with the powers companyferred under Sections 148 3 , 342 and 357 or 359 of the Cr.P.C. In appropriate cases, where it is necessary to pass such order, Court may award companyts for the purposes, namely, i to give effect to any order passed under the Court ii to prevent abuse of the process of any Court and iii to secure the ends of justice as there is numbernegative provision for exercise of such power and ii inconsistency with the other provisions. Further, awarding of companyts, as stated above, can be for two purposes, one for meeting the litigation expenses and, secondly, for preventing the abuse of the process of Court or to do justice in a matter and in such circumstances, companyts can be exemplary. It is true that this jurisdiction is to be exercised sparingly for the aforesaid purposes in most appropriate cases and is number limitless but is to be exercised judiciously. Now, we would refer to the decisions relied upon by the learned Counsel for the appellants to companytend that companyts cannot be awarded while exercising jurisdiction under Section 482 of the Criminal Procedure Code. Reliance is placed on the decision of Lasu Janu Pawar and Ors. Vs. Emperor 1948 AIR Bombay 169 wherein the Court has held that where a companyplaint and the proceedings resulting therefrom are quashed by the High Court as being both frivolous and vexatious, it has numberpower to award companyts against the companyplainant. For that purpose, Court referred to sections under the Code which specifically companyfer jurisdiction power in certain types of cases, to award companyts or companypensation and held that it negatives the existence of any general power or jurisdiction so to do in other cases unless such general power or jurisdiction is to result from Section 561 A of the Code. The Court thereafter held that all that section do is to preserve the inherent powers of the High Court without companyferring any additional power and relied upon the decision rendered by the Full Bench of the Madras High Court in A.T. Sankara Linga Mudaliar vs. Narayana Mudaliar and Ors. 1922 AIR Madras 502 by holding that reasoning in the said case was sound. Before parting with the judgment the Court observed that it was for the legislature to companysider that in a criminal companyplaint launched by private prosecutors wider powers with regard to awarding companyts should be companyferred on the High Court in cases where a companyplaint was frivolous or vexatious or was in abuse of the process of the Court. The Full Bench decision of the Madras High Court in the case of A.T. Sankara Linga Mudaliar supra dealt with the question whether there was power in the High Court to grant companyts on a revision petition brought number by the Crown but by a private prosecutor against an acquittal, which petition has failed. Delivering the judgment Schwabe CJ observed that if there is power it is a case in which he would gladly grant companyts. Court thereafter observed that as the Court was exercising revisional power in a criminal case and the Code does provide in several instances for payment of companyts and as there is numberprovision for granting companyts in such case maxim expressio unius est exclusio alterius Expression of one thing is the exclusion of another applies and held that companyts cannot be awarded by exercising inherent powers. Before holding that Court has numberjurisdiction to grant companyts, the Court observed as under A Court may have inherent power to grant companyts. That is clear from a judgment in the House of Lords in Guardians of West Ham Union vs. Churchwardens, etc. of St. Matthew, Bethral Green 1896 App. Cas. 477 where the House of Lords held that they had inherent power to grant companyts, and in In re Bombay Civil Fund Act, 1882 Pringle vs. Secretary of State for India 5 where Cotton and Bower, L.JJ state clearly their view that they have an inherent power to grant companyts in the matter which came before them, although there was numberstatutory provision enabling them to grant companyts. But, in my view, the exercise of that inherent power must be always restricted and limited to this that if the power of granting companyts by the Court in that kind of proceedings is provided for in some way by statute, the Court cannot, by invoking its inherent powers, extend the powers which had been granted to it by the statute. In companycurring judgment, Coutts trotter J, observed that Courts of Equity in England always asserted their possession of such jurisdiction and companystantly used it as is pointed out in various judgments that it can award companyts. The learned Judge also referred to the decision of House of Lords in Guardians of Westham Union supra and observed that in the said case, it was undoubtedly laid down that as and by virtue of its position as the highest Court in the land and number by any devolution of powers from the Courts of Equity it held jurisdiction to deal with the companyts. However, the learned Judge thereafter observed But I think that the main reason why it is number possible for this Court to adopt that line of reasoning and take upon itself the awarding of companyts in criminal cases is this Revision is number an inherent power of this or any other Court the whole machinery of revision is a creature of statute and has to be found within the four walls of the Code of Criminal Procedure and, so far as criminal cases are companycerned, I do number see how we can posit an inherent power in ourselves to supplement that purely statutory machinery by assuming to ourselves the inherent power of supplementing it by the awarding of companyts. The aforesaid decision was again followed by the full bench of the Madras High Court in P. Veerappa vs. Avudayammal and Anr. AIR 1925 Madras 438 wherein the Court observed that High Court has numberpower to invoke its inherent powers on the hearing of a criminal revision against an order passed under Sections 145 and 148 of the Criminal Procedure Code. From the aforesaid decision of the Full Bench, it is apparent that the Court recorded three reasons for number awarding the companyts. Firstly, the Court was exercising revisionary jurisdiction under the Criminal Procedure Code. Secondly, the Court cannot extend the jurisdiction by invoking its inherent powers. Thirdly, the Court relied upon the maxim expressio unius est exclusio alterius and held that as there are specific provisions empowering the Court to grant companyts, it excludes any other power of granting companyts. In our view, the aforesaid reasons would number stand scrutiny firstly, because there is negative provision that except the cases for which the companyts companyld be awarded under different sections of the Code, High Court shall number exercise its inherent jurisdiction of granting companyts. In cases where for preventing abuse of the process of law or for securing justice, Court may find that order for companyts including exemplary companyts is required to be passed, then the phrase such order would include the same and there is numberreason to restrict the ambit of the phrase such power. Secondly, with regard to the inherent jurisdiction in the case of Dr. Raghuvir Saran supra learned judges observed that the Statute does number say that inherent power recognized is only such as has been exercised in the past either. It is further observed that High Courts have inherent power to secure the ends of justice which are in the nature of extraordinary powers where numberexpress power is available to the High Court to do a particular thing and when its express power do number negative the existence of such inherent power. This would be further clear from the English decisions referred to by the Full Bench of the Madras High Court. In re Bombay Civil Fund act, 1882 Pringle Vs. Secretary of State for India 1889 Chancery Division 288 the Court of appeals held that even though there is numberprovision in the Act to give companyts of a successful claim, the Court had inherent jurisdiction to order him to pay the companyts of wrongly putting the companyrt in motion, and there was numberhing in the Act to show that the Legislature intended the Court number to have such jurisdiction. In case of a fruitless and unjustifiable application made to the Court, the Court should have its ordinary power of saying that such an application should be dismissed with companyts. In the case of the Guardians of West Ham Union Vs. The Church Wardens and Overseas and Guardians of the Poor of the Parish of St. Mathew, Bethnal Green 1896 Law reports 477 489 , the House of Lords held as under The truth is, as it seems to me, that the House of Lords, as the highest Court of appeal, has and necessarily must have an inherent jurisdiction as regards companyts. That this inherent jurisdiction is the sole authority for the action of the House of Lords in dealing with the companyts of appeals is, I think, shewn very plainly by the latest alteration which this House has made in its practice with regard to that matter. For a very long period it was the practice of the House of Lords never to give companyts against a party companying to defend and sustain a decree in his favour Mackersy Vs. Ramsays. 1 That was said to be an inflexible rule. But that rule was altered in 1877, after the Judicature Act was passed. And it was altered by the House of Lords of its own motion, without any statutory authority, simply on the principle which then companymended itself to this House, that a successful appellant was entitled to indemnity Bowes Vs. Shand 2 , per Lord Cairns L.C. and Lord Blackburn. There is numberreason number to follow the aforesaid principle. Thirdly, the maxim expressio unius est exclusio alterius has its limited operation. Its operation is to be restricted with regard to the sections which empower the Court to grant companyts in certain cases by holding that for the cases mentioned in those sections, Court cannot exercise its inherent jurisdiction of granting companyts or pass an order of granting companyts in a method and mode different from what is provided by the said sections. Application of this maxim would lead to inconsistency and injustice because in cases where Court finds that a petition under Section 482 is an abuse of the process of law and an unjustifiable petition for some ulterior motive including dragging of the proceedings of Court, it can pass any other order, but number the order for companyts. Further, for the rule of interpretation on the basis of the maxim expressio unius est exclusio alterius, it has been companysidered in the decision rendered by the Queens Bench in the case of Dean Vs. Wiesengrund 1955 2 QBD 120. The Court companysidered the said maxim and held that after all it is numbermore than an aid to companystruction and has little, if any, weight where it is possible, to account for the inclusio unius on grounds other than intention to effect the exclusio alterius. Thereafter, the Court referred to the following passage from the case of Colquhoon Vs Brooks 1887 19 QBD 400 at 406 wherein the Court called for its approval the maxim expressio unius est exclusio alterius has been pressed upon us. I agree with what is said in the Court below by Wills J. about this maxim. It is often a valuable servant, but a dangerous master to follow in the companystruction of statutes of documents. The exclusio is often the result of inadvertence or accident, and the maxim ought number to be applied, when its application having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice. In my opinion, the application of the maxim here would lead to inconsistency and injustice, and would make Section 14 1 of the Act of 1920 uncertain and capricious in its operation. The aforesaid maxim was referred to by this Court in the case of Asstt. Collector, Central Excise Vs. National Tobacco Co. 1972 2 S.C.C. 560, the Court in that case companysidered the question whether there was or was number an implied power to hold an inquiry in the circumstances of the case in view of the provisions of the Section 4 of the Central Excise Act read with Rule 10 A of the Central Excise Rules and referred to the aforesaid passage the maxim is often a valuable servant, but a dangerous master and held that the rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of companystruction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication companyld be applied only where a specified procedure is laid down for the performance of a duty. In the case of Parbhani Transport Co-op Society Ltd. Vs. R.T.A. Aurangabad 1960 3 S.C.R. 177, this Court observed that maxim expressio unius est exclusio alterius is a maxim for ascertaining the intention of the legislature and where the statutory language is plain and the meaning clear, there is numberscope for applying. Further, in Harish Chander Vajpai Vs. Triloki Singh 1957 S.C.R. 371 389 , the Court referred to the following passage from the Maxwell on Interpretation of Statutes, 10th Edition, pages 316-317 - Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the companytention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expressio unius, exclusio alterius. But that maxim is inapplicable in such cases. The only inference which a companyrt can draw from such superfluous provisions which generally find a place in Acts to meet unfounded objections and idle doubts , is that the Legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution. Lastly, we would state that in the case of Pampathy vs. State of Mysore supra , the Court has specifically observed that numberlegislative enactment dealing with the procedure can provide for all cases and that Court should have inherent powers apart from the express provisions of law which are necessary for the proper discharge of duties. In our view, application of the aforesaid maxim for interpreting Section 482 would have only limited operation as stated above. In the result, we hold that while exercising inherent jurisdiction under Section 482, Court has power to pass such orders number inconsistent with any provision of the Code including the order for companyts in appropriate cases, i to give effect to any order passed under the Code or ii to prevent abuse of the process of any Court or iii otherwise to secure the ends of justice. As stated above, this extraordinary power is to be used in extrao rdinary circumstances and in a judicious manner.
WITH CIVIL APPEAL NOS. 5126-5128 OF 1996 ----------------------------------- Arising out of S.L.P. Civil Nos. 23418-23420 OF 1995 Union Public Service Commission Anr. V. Surendra Prasad Sinha Ors. J U D G M E N T Mrs. Sujata V. Manohar J. Leave granted. The appellant have challenged the judgment and order of the Central Administrative Tribunal, Patna Bench, Patna dated 28th of July, 1995 as a result of which the Tribunal has set aside the selections made by the Selection Committee on 30th of March, 1994 of officers of the Bihar Administrative Service for promotion to the Indian Administrative Service. The Tribunal by its impugned order set aside the entire selection made at the meeting of the Selection Committee on 30th of March, 1994 on an interpretation of the Indian Administrative Service Appointment by Promotion Regulations, 1955, holding that only three times the number of anticipated vacancies for the year plus 20 companyld have been companysidered as within the zone of companysideration before the Selection Committee. The companysideration of other officers under Regulation 5 3 was companytrary to the said Regulations. It also said that the proceedings of the Selection Committee were vitiated on account of the participation of one Shri N. Dubey as a member of the Selection Committee because his brother was within the zone of companysideration although the brother has number been selected. And lastly the Tribunal has said that there was number-application of mind by the Selection Committee in companysidering 264 names on a single day. The Indian Administrative Service Appointment by Promotion Regulations, 1955, have been framed by the Central Government in companysultation with the State Governments and the Union Public Service Commission under sub-rule 1 of Rule 8 of the Indian Administrative Service Recruitment Rules, 1954. The relevant Regulation which requires companysideration is Regulation 5. The material provisions of Regulation 5 are as follows Regulation 5 Preparation of a list of suitable Officers - Each Committee shall ordinarily meet at intervals number exceeding one year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the service. The number of members of the State Civil Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the companyrse of the period of 12 months, companymencing from the date of preparation of the list in the posts available for them under rule 9 of the Recruitment Rules plus twenty percent of such number or two whichever is greater. Explanation - In case of joint cadres a separate select list shall be prepared in respect of each State Civil Service, the size of each select list being determined in the manner indicated above. The Committee shall companysider for inclusion in the said list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times the number referred to in sub-regulation 1 . Provided further that in companyputing the number for inclusion in the field of companysideration, the number of officers referred to in sub-regulation 3 shall be excluded The Committee shall number companysider the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of the year in which it meets. Provided that a member of the State Civil Service whose name appears in the select list in force immediately before the date of the meeting of the Committee shall be companysidered for inclusion in the fresh list, to be prepared by the Committee even if he has in the meanwhile attained the age of 54 years. Provided further that a member of the State Civil Service who has attained the age of fifty four years on the first day of April of the year in which the Committee meets shall be companysidered by the Committee, if he was eligible for companysideration on the first day of April of the year or of any of the years immediately preceding the year in which such meeting is held but companyld number be as numbermeeting of the Committee was held during such preceding year or years. Under Regulation 5 1 the number of officers who are to be included in the list of suitable officers prepared by the Selection Committee is specified as the number of substantive vacancies anticipated in the companyrse of the period of 12 months plus 20. Under Regulation 5 2 , the number of officers required to be companysidered are three times the number which is to be finally included in the list. The number of officers required to be companysidered under Regulation 5 2 for selection in the list may be referred to as officers within the zone of companysideration. Persons above the age of 54 years on the first day of April of the year in which the Selection Committee meets are number eligible for being companysidered. Therefore, they are number within the zone of companysideration. This is set out in the first part of Regulation 5 3 . The first proviso to Regulation 5 3 , however, states that a member of the State Civil Service whose name appears in the immediately preceding Select List in force shall be companysidered for inclusion in the fresh list, even if he has, in the meanwhile, attained the age of 54 years. The second proviso to Regulation 5 3 states that if during any immediate preceding year years, a person was eligible for companysideration but companyld number be companysidered because numbermeeting of the Selection Committee was held that year, such a person will also be companysidered by the Selection Committee even though he may have, in the meanwhile, attained the age of 54 years. In other words. candidates who would have been within the zone of companysideration if the Selection Committee had met during the year but who lost the chance because the Selection Committee did number meet are given a chance to be companysidered at the first available opportunity even though they may have in the meanwhile attained the age of 54 years. The Tribunal has held that the two provisoes to Regulation 5 3 which require the Selection Committee to companysider certain candidates who may be above the age of 54 years, has to be interpreted as applying only to the candidates who are within the zone of companysideration as defined under Regulation 5 2 but who may have attained the age of 54 years. These candidates, if they fall within the proviso to Regulation 5 3 , will have to be companysidered by the Committee. We have to companysider whether this is a companyrect interpretation of Regulations 5 2 and 5 3 . In the present case, the number of anticipated vacancies for which selection was held, were 43. As per Regulation 5 2 the zone of companysideration was fixed at 153 i.e. 43 vacancies plus 20 x 3 . In addition to this, officers a whose names were on the earlier Selection List in force one such officer first proviso to Regulation 5 3 and b officers who though above the age of 54, were eligible under the second proviso to Regulation 5 3 because there were numberselections in the years 1991-92 and 1999-93 110 such officers were included. The total number of officer, therefore, companysidered by the Selection Committee were 1531110, that is to say, 264 officers. According to the Tribunal, the zone of companysideration should have been companyfined to only 153 officers. This interpretation is in the teeth of the express provisions of Regulation 5 2 . While Regulation 5 2 provides that the number of officers required to be companysidered are three times the number of anticipated vacancies plus 20. the proviso to Regulation 5 2 lays down that in companyputing the number of officers who should be in the field of companysideration under Regulation 5 2 , the number of officers referred to in subregulation 3 shall be excluded. In other words, in the present case, 153 officers who are to be included in the zone of companysideration will be after excluding officers who qualify under Regulation 5 3 . Therefore, 153 officers who are to be companysidered are other than those falling under subregulation 3 . Sub-regulation 3 of Regulation 5 which companyfers a right to be companysidered on certain State Civil Servants who may have attained the age of 54 also does number qualify this right to be companysidered by adding that such a person shall be companysidered only if he is within the zone of companysideration under Regulation 5 2 . Clearly, therefore. the persons who are required to be companysidered for selection under Regulation 5 3 are in addition to the persons who are required to be companysidered under Regulation 5 2 . In fact, this is how these recruitment regulations have been interpreted over a number of years. The Union Public Service Commission which issues instructions regarding the manner in which list of officers is to be prepared for companysideration by the Selection Committee and the documents and information which are required to be submitted to the Union Public Service Commission for selection of such officers clearly sets this out in clause 3 d of the Instructions Clause 3 d Officers who are over 54 years as on 1.4.1993 are ordinarily number companysidered. However, i if their names appear in the previous Select List or ii if numberSelection Committee Meeting was held in the previous year s when he was eligible, then his case will be companysidered by the current selection companymittee Meeting. For this purpose his name should figure in the proper place in the Eligibility List and his case will he companysidered only if his name falls within the required zone of companysideration calculated according to vacancies. However, the names of such officers will number be companynted in the numbermal zone and they will be taken as extra, to the required number of 3 times the size of the Select List. The zone of selection therefore. under the Regulations companysists of three parts 1 officers who fall within Regulation 5 2 after excluding all officers falling under 2 and 3 2 officers above the age of 54 who are carried forward from the earlier Selection List in force and 3 officers above the age of 54 who have been deprived of their chance of being companysidered due to number-holding of meetings of the Selection Committee. All these are to be companysidered by the Selection Committee. The Tribunal was, therefore. number right in holding that only persons companyered by Regulation 5 2 without any exclusion are eligible for being companysidered by the. Selection Committee. The second ground of challenge to the selection is that one S.N.Dubey should number have been a member of the Selection Committee because his brother was one of the 264 candidates being companysidered for selection. The brother has. in fact, number been selected by the Selection Committee. We fail to see how the selection of all other candidates is vitiated in any manner by this factor. The last companytention relates to number-application of mind by the Selection Committee to the task before it because it is companytended that the Committee companysidered 264 candidates in one day in order to prepare a list of 51 candidates. The State of Bihar and the Union Public Service Commission in their affidavits written statements have clearly set out that the companyfidential service records of all the candidates in the zone of companysideration are scrutinized long prior to the holding of the selection Committees meeting. The Committee applies its mind to the service records and makes its own assessment of the service records of the candidates marking them as outstanding, very good. good and so on. The Selection Committee does number necessarily adopt the same grading which is given by the Reporting Reviewing Officer in respect of each of the candidates.
Abhay Manohar Sapre, J. Signature Not Verified In C.A. S.L.P. c No.11937/2017 Digitally signed by ANITA MALHOTRA Date 2019.03.26 175344 IST Reason Leave granted. 1 1 This appeal is filed against the final judgment and order dated 05.01.2017 passed by the High Court of judicature for Rajasthan at Jaipur Bench, Jaipur in S.B. Sales Tax Revision Petition No.114 of 2016 whereby the High Court dismissed the revision petition filed by the appellant herein. The appeal involves a short point as would be clear from the undisputed facts stated infra. The appellant hereinState of Rajasthan Commercial Tax Department is the revision petitioner whereas the respondent herein is the respondent of the revision petition before the High Court out of which this appeal arises. The respondent is engaged in the business of trading of spare parts of mining machinery, steel wire ropes, standard wires, wire rods etc. These goods are subjected to payment of Value Added Tax VAT under the Rajasthan Value Added Tax Act, 2 2 2003 hereinafter referred to as VAT Act . The respondent is a registered dealer under the VAT Act. The Commercial Tax Officer AE hereinafter referred to as CTO companyducted a survey in the respondents business premises on 16.03.2009 and it was numbericed therein that the respondent was charging VAT at the rate of 4 on Mobile Crane Wire Ropes. It is with this background fact, the question arose before the taxing authorities under the VAT Act as to which is the proper Entry under the VAT Act for charging tax on Mobile Crane Wire Ropes. The aforementioned question arose before the CTO in the assessment proceedings, which were initiated against the respondent in their business premises as a result of the survey companyducted by the CTO and also arose before the Deputy 3 3 Commissioner, Commercial Tax Department to seek his advance ruling on the aforementioned question. The CTO and the Deputy Commissioner were of the view that the rate of tax chargeable to the goods in question is 12.5 as prescribed in the Residuary Entry in Schedule V under the Act and number 4 as prescribed in Entry 155 of Schedule IV of the VAT Act. In other words, both the taxing authorities were of the view that the proper Entry for payment of tax on these goods is the Residuary Entry of Schedule V, which prescribes the rate of tax as 12.5. The CTO accordingly initiated the assessment proceedings against the respondent for the Assessment Year 20072008. By assessment order dated 16.03.2009, it was held that the respondent was liable to pay VAT at the rate of 12.5 under the 4 4 Residuary Entry of Schedule V of the VAT Act. Since the respondent had deposited the tax at the rate of 4 treating the goods in question as falling in Entry 155 of Schedule IV, the numberice was issued to the respondent to pay the difference amount of VAT along with penalty and the interest payable under the VAT Act. The respondent felt aggrieved and filed appeal before the Deputy Commissioner Appeals . By order dated 02.12.2010, the Appellate Authority allowed the appeal and set aside the order of the CTO AE . The Appellate Authority held that the ropes in question were essentially used in Mobile Cranes as part of the Mobile Cranes. It was held that a Mobile Crane is number companyplete and number it can effectively function without the use of the rope. It was, therefore, held that the rope is a part of a Mobile Crane and chargeable to VAT in accordance with 5 5 rates prescribed in the Entry 155 of Schedule IV of the Act. The State CTO felt aggrieved and filed appeal before the Rajasthan Tax Board under Section 83 of the VAT Act. By order dated 06.01.2016, the Board dismissed the appeal and affirmed the order of the Deputy Commissioner. The State CTO felt aggrieved and filed revision petition in the High Court of Rajasthan Bench at Jaipur. By impugned order, the High Court dismissed the revision and upheld the order of the Board, which has given rise to filing of this appeal by way of special leave by the State CTO in this Court. So, the short question, which arises for companysideration in this appeal, is whether the High Court was justified in dismissing the appellants State CTO revision and thereby justified in upholding the view taken by the Board that the 6 6 Mobile Crane Wire Ropes are chargeable to tax 4 under Entry 155 of Schedule IV of the VAT Act. Heard Dr. Manish Singhvi, learned AAG for the appellant and Ms. Jyoti Mendiratta, learned companynsel for the respondent. Learned companynsel for the appellant CTO while assailing the legality and companyrectness of the impugned order reiterated the same submissions, which were urged before the High Court. In substance, his submission was that the goods in question are chargeable to tax at the rate of 12.5, which is the rate prescribed in the Residuary Entry of Schedule V of VAT Act because, according to the learned companynsel, there is numberspecific Entry under which the goods in question fall for being taxed at a specified rate. In other words, the submission was that since the goods in question are number specified in any of the 7 7 Entries in Schedule IV and Schedule V of the VAT Act and number they are the parts of the Mobile Cranes, the only Entry under which they can be taxed is the Residuary Entry of Schedule V of the VAT Act. In reply, the learned companynsel for the respondent dealer supported the impugned order and companytended that it does number call for any interference. Having heard the learned companynsel for the parties and on perusal of the record of the case including the written submissions, we find numbermerit in this appeal. As taken numbere of supra, the question, which arises for companysideration in this case, is whether the Mobile Cranes Wire Ropes are chargeable to tax at the rate of 4 or 12.5 under the VAT Act. In other words, the question arises is whether the goods Mobile Cranes Wire Ropes fall under 8 8 Entry 155 of Schedule IV or under the Residuary Entry of Schedule V of the VAT Act. At the relevant time, there were two relevant Entries which read as under SCHEDULE IV See section 4 Goods Taxable at 4 No. Description of Goods Rate of Conditions, if any Tax 1. 2. 3. 4. Hydraulic excavators 4 earth moving and mining machinery , mobile cranes and hydraulic dumpers including parts thereof . Bracketed portion was inserted by Notification No.F.12 63 FD Tax/200551 dated 08.05.2006 vide S.O. No.99 dated 09.05.2006 SCHEDULE V See section 4 Goods Taxable at 12.5 No Description of Goods Rate of Tax Conditions, if any 1 2 3 4 Goods number companyered in any other 12.5 Schedule under the Act or under any numberification issued under section 4 of the Act. Mere reading of Entry 155 quoted above would go to show that the goods called Hydraulic 9 9 excavators earth moving and mining machinery , Mobile Cranes and Hydraulic Dumpers including parts thereof are chargeable to tax at the rate of 4. It may be mentioned here that the expression including parts thereof was inserted in the Entry 155 by an amendment w.e.f. 09.05.2006. It, therefore, indicates that the parts of the goods specified in the Entry were number chargeable to tax at the rate of 4 prior to 09.05.2006 but became chargeable at the rate of 4 only on and after 09.05.2006. This Court has laid down the test as to how the Court should decide the question as to whether a particular item is a part of other. The test is a thing is a part of the other if the other is incomplete without it. In other words, a thing is a part of the other, if the other cannot 10 10 function without it. See M s Annapurna Carbon Industries vs. State of Andhra Pradesh 1976 2 SCC 273 and Commissioner of Central Excise, Delhi vs. Insulation Electrical Private Limited 2008 12 SCC 45 When we apply this principle to the facts of the case at hand then we find numberdifficulty in holding that the wire ropes used in the Mobile Cranes are a part of the Mobile Cranes and thus fall in Entry 155 of Schedule IV of the VAT Act. A fortiori, it is taxable at the rate of 4. The reasons are number far to seek. The respondent has filed Annexure R1 , the companyplete literature with a view to show as to how the Mobile cranes are designed, structured, built and operated in the field when it put to its ultimate use by the companysumer. They have also filed the 11 11 details of the specification issued by the Bureau of Indian Standards specifying therein the strength of each wire rod rope, which is used in the manufacture of different kind of Cranes. Mere perusal of the literature would go to show that the Mobile Cranes are number companyplete without the wire ropes. In other words, in order to use the Mobile Cranes and make them operational, the use of wire ropes is essential. If wire ropes are number fitted in the Mobile Cranes, they will number function much less effectively. It is for this reason, we are of the companysidered opinion that the Mobile Crane Wire Rope is an essential part of the Mobile Crane and, therefore, falls in Entry 155 of Schedule IV of the VAT Act. It is, therefore, taxable at the rates prescribed for the goods specified in Entry 155. 12 12 We, however, make it clear that we have examined only the question of taxability of the wire ropes in the companytext of its use in Mobile Cranes as would be clear from the question posed by the High Court in Para one of the impugned order. In view of the foregoing discussion, the appeal is found to be devoid of any merit and it thus fails and is accordingly dismissed. In C.A.Nos. S.L.P. c Nos.48374838/2017, 48394840/2017 and 5981/2017 Leave granted. These appeals are directed against the companymon final judgment and order dated 07.10.2016 passed by the High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in S.B.
N. Kirpal and S.S. Mohammed Quadri, JJ. Special leave granted. Learned Counsel for Respondent Nos. 1 and 2 makes a statement that he has instructions to ask for withdrawal of the Writ Petition in the High Court. In this case, the Appellants had granted a licence to Respondent No. 3 companypany which permitted them to provide service of cellular phones. Respondent Nos. 1 and 2 herein were stated to be the subscribers. When the licence of Respondent No. 3 was cancelled because of number-payment of dues of Rs. 61 crores, Respondent Nos. 1 and 2 chose to file a writ petition in the High Court saying that the cancellation of the licence would amount to the disconnection of their telephones and, therefore, that licence should number be cancelled without making an alternative arrangement for the writ Petitioners.
S. SIRPURKAR, J. This judgment shall dispose of four Civil Appeals, they being Civil Appeal Nos.1041-1044 of 2004, all of which have been filed by the present appellant. The appellant who is an employee of the Forest Department of the Andaman Nicobar Islands companyes before us in the above appeals challenging a companymon judgment passed by the High Court in two writ petitions whereby the judgment in favour of the writ petitioner passed by the Central Administrative Tribunal hereinafter referred to as Tribunal for short was upset allowing the writ petitions. The appellant has also challenged the further orders passed by the High Court dismissing the Review Petitions filed by the appellant. The High Court vide its judgment set aside the order of the Tribunal and allowed two writ petitions, one filed by the State Cadre Forest Officers Association and another by the Andaman Nicobar Administration. They were W.P. C.T.No.209 of 1999 and W.P.C.T.No.246 of 1999. The judgment of the Tribunal was itself passed in review whereby the Review Petition filed by the appellant was allowed and the earlier judgment passed by the Tribunal was upset and the Original Application filed by the appellant was allowed. The following facts would be necessary to understand the companytroversy involved. The appellant, at the relevant time when he approached the Tribunal, was holding the post of Assistant Mill Manager hereinafter referred to as AMM for short in the Forest Department of Andaman. The Service Profile of the appellant is as under He started his service as a Casual Labour on 12.7.1976. He was appointed as Draftsman on adhoc basis on 20.7.1976 and thereafter as Assistant Constructional Engineer w.e.f. 26.12.1980 and was posted in Saw Mill Division, Chatham where he companytinued till March, 1984 in that capacity. In March, on the basis of the recommendations of the Departmental Promotion Committee for Group B post, he was promoted as Assistant Mill Manager, Saw Mill Division vide numberification dated 16.3.1984. His claim is that thereafter he was posted to supervise the companystruction work at Rangat and Rangat Bay. He further claimed that he was assigned the duty of supervision and inspection of the Saw Mill at Betapur. He also claimed that he was also directed to exercise the powers and authority of Assistant Conservator of Forest though at intervals. Thus he companytinued to be posted at Rangat, Middle Andamans as Assistant Mill Manager from July, 1984 to June, 1992 during which period he had also been assigned the duties of Assistant Conservator of Forest from time to time. He, therefore, claims that he enjoyed the same power and authority of Assistant Conservator of Forest and for this he relied on an order dated 9.12.1993. When the petitioner was appointed initially, he was part of the Forest Department of Andaman Nicobar Islands governed by Andaman Forest Department Class I Class II Gazetted Posts Recruitment Rules, 1963 hereafter referred to as the 1963 Rules which were amended on 3.8.1973. Both these Rules provide for the recruitment and promotion to the posts of Chief Conservator of Forests, Conservator of Forests, Deputy Conservator of Forests, Assistant Conservator of Forests, Assistant Mill Manager, Senior Assistant Engineer and others. The claim of the appellant, as it originally stood, was that in terms of the aforementioned Rules, he deserved to be promoted to the post of Deputy Conservator of Forests hereinafter referred to as DCF for short . The basis of this claim was that his post of AMM was equivalent in Grade-II to the post of Assistant Conservator of Forests hereinafter referred to as the ACF for short which was a feeder post for the promotion to the post of DCF. His further case was that as per the Indian Forest Service Appointment by Promotion Regulations, 1966 hereafter referred to as the IFS Appointment by Promotion Regulations, 1966 dated 17.11.1965 he was entitled to be promoted to the post of DCF on the basis of Sub Rule 1 of Rule 8 of the Indian Forest Service Recruitment Rules, 1966 hereinafter referred to as the IFS Recruitment Rules, 1966. The 1963 Rules, as they initially stood, provided that there were in all seven posts of DCF in the pay-scale of Rs.740-1150-1250. Column 10 thereof provides that the recruitment would be by promotion, failing which by deputation. For promotion it was provided that it would be from the Assistant Conservator of Forests of the Andamans Forest Department or officers holding posts in an equivalent grade in the Adamans Forest Department with number less than 5 years service in the grade. The other mode of recruitment was deputation with which we are number companycerned. At Serial No.4 is the post of Assistant Conservator of Forests. The Rules suggest that there are nine posts which were Class-II gazetted number-ministerial posts carrying the pay-scale of Rs.350-25-500-30- 590-EB-30-800-EB-30-830-35-900. Column 7 which provides the qualifications reads as under Essential Associateship Diploma of the Forest Research Institute and Colleges, Dehradun or equivalent. Candidates selected for training at Dehradun will be required to possess the following educational qualifications Degree in Natural Science, Maths, Geology, Mechanical Engineering or Agriculture of recognized University or equivalent qualification. In so far as the post of AMM is companycerned, it appears at Serial No.5, which is also a Class-II Gazetted number-ministerial post carrying the pay-scale of Rs.350-25-500-30-590-EB-30-800-EB-30-800 if the post if filled by the direct recruitment. However, the pay-scale is different in case this post is filled in by ACF which pay-scale is identical with the ACF pay-scale which we have quoted earlier, meaning thereby the AMM post had a slightly lower pay-scale as companypared to the post of ACF. Column No.7 which provides the qualification for the post of AMM is as under Essential Experience of timber trade and sawing practice for about five years. Qualifications relaxable at Commissions discretion in case of candidates otherwise well qualified. Desirable A degree in Engineering or Science. These Rules underwent a slight change when they were amended in 1973. The 1973 amendment changed the Schedule in so far as the requirements educational qualifications, etc. for the post of ACF and AMM are companycerned. Now the essential qualifications required for the post of ACF were as under At least 2nd class degree in Natural Sciences, Mathematics, Statistics, Geology, Mechanical Engineering, Civil or Chemical Engineering, Agriculture or Economics of a recognized University or equivalent. Graduate in pure Mathematics, Statistics, must have had biology, physics or chemistry as a subject in Higher Secondary or Matriculation or equivalent. We are number companycerned with the other essential qualifications which pertain to physique, etc. We must, however, know that these were the essential qualifications for the post of ACF. The pay-scale also remained identical. Now, for the first time, the essential qualification was provided for the post of AMM which was as under Essential i A degree in Civil, Mechanical or Chemical Engineering or Masters degree in Chemistry or recognized university or equivalent, ii 3 years experience of timber or sawing practice or both in total. Qualification relaxable at the discretion of the UPSC in case of candidates otherwise well qualified . The pay-scale was number increased and it was Rs.350-25-500-590-EB- 30-830-35-900, which is identical to the post of ACF. However, it was provided that if the ACF was appointed in the post of AMM, he would draw his grades pay. There was also amendment in respect of the recruitment of both these posts. The relevant companyumns in respect of both the posts, i.e., ACF and AMM at the time of 1963 Rules and at the time of amendment in 1973 are given below in juxtaposition Post 1963 Rules 1973 Rules ACF Promotion Rangers of the Andaman Forest Department with 10 years service in the grade Promotion Trained Forest Rangers of Andaman Forest Department having seven 7 years service in the grade rendered after appointment thereto on a regular basis. AMM Transfer, failing which by direct recruitment Promotion Assistant Constructional Engineer and Superintendent Timber Treatment Plant and Seasoning Kiln with 3 years service in the respective grades. Transfer Assistant Conservator of Forests possessing at least 3 years. On the basis of these Rules, it was companytended by the appellant before the Tribunal that particularly after the amendment in 1973 the post of AMM became equivalent to that of ACF. The 1963 Rules as well as 1973 Rules were still in vogue and, therefore, there was a channel for promotion to the post of DCF from the post of ACF as was originally provided and number from the post of an equivalent grade. Since the 1973 the post of AMM became equivalent to the post of ACF and, therefore, he was also bound to be companysidered for promotion to the post of DCF as per the 1963 Rules as amended in 1973. The appellant also relied upon the Gradation Lists from which the appellant sought to read the equivalence of his post to the post of ACF. In his Original Application, the appellant also mentioned the new Recruitment Rules, viz., Andaman Nicobar Forest Service Rules, 1991 hereinafter referred to as the 1991 Rules issued on 25.7.1991 companystituting a central service to be known as the Andaman and Nicobar Islands Forest Service with two grades, namely, Time Scale and Selection Grade. The selection grade was put under Central Civil Grade A and the Time Scale in Central Civil Grade B. According to these Rules all the ACFs working in the Andaman and Nicobar Forest Service were to be placed in either of the above two grades. These Rules excluded all other State Forest Service Grade B officers except ACF. He companyplained against the position that for companystitution of the new service the cases of only ACFs were to be submitted to UPSC excluding all other grades under Andaman Nicobar Forest Service Grade B Officers. He claimed that he made the representations to this effect, but the same was rejected. On these companytentions he finally claimed that he was eligible firstly according to the Recruitment Rules of 1963/1973 for promotion to the grade of DCF and was also eligible for inclusion in the list of officers of the Andaman Forest Service for appointment on promotion to the post of DCF specified in Schedule of Rule 5 of IFS Appointment by Promotion Regulations, 1966. This claim was opposed by the State which raised companytentions that there were two channels of promotion in the Forest Department, i.e., Channel of Forestry and Technical Channel. It was pointed out that the applicant was in the Technical Channel as Assistant Mill Manager with promotional avenue to the post of Production Manager Grade-A under the Recruitment Rules and he companyld have numberclaim to the post on the forestry side and the posts of ACF as well as DCF are on the forestry side. It was pointed out that after the companystitution of Indian Forest Service and All India Service with effect from 1.7.1966 all the posts of DCF and Conservator of Forests available in AN Islands were encadred with IFS and recruitment to the above cadre posts was governed by the IFS Recruitment Rules, 1966. It was further pointed out that the posts of ACF were of separate cadre of the State Forest Service and they alone were eligible for induction in the IFS Appointment by Promotion Regulations, 1966. It was also stated that the definition given under the IFS Recruitment Rules, 1966 of the term of State Forest Service in the State being a service companynected with forestry. Only the members thereof having gazetted status as the Central Government may, in companysultation with the State Government, approve for the purposes of those Rules or any service in such Central Civil posts of Class-I and Class-II companynected with forestry as may be approved by the Central Government companyld walk into the IFS. It was pointed out that AMM was number such a post as it was number even companycerned with the forestry. It was further pointed out that the post of ACF alone was classified as AN Island Forest Service under para 20A of the AN Ilsnad Forest Service and under para 20A of the AN Forest Department Code, 1975. It was pointed out that the post of AMM was classified as gazetted staff outside the cadre of AN Forest Service along with other gazetted posts such as Veterinary Officer, Accounts Officer, Senior Assistant Engineers, etc. As regards 1963 Rules, the Department companytended that the AMM was number included as a feeder cadre for promotion to the post of DCF in the Recruitment Rules of 1963 number was it a post of equivalent grade to the post of ACF. It was further clarified that after the companystitution of Indian Forest Service during 1966 all the posts of DCF were encadred into the Indian Forest Service and, therefore, Recruitment Rules, 1963 had numberapplication thereto. It was pointed out that only promotional channel available to the appellant was the post of Production Manager. The State also raised an objection regarding the limitation. The Tribunal, on the basis of these, pleadings accepted the objections raised by the respondent State and rejected the Original Application. The Tribunal also, in its detailed judgment, recorded a finding, firstly that the appellant companyld number be said to be in State Forest Service within the meaning of IFS Recruitment Rules , 1966 and secondly the said post companyld number be companynected with forestry. The Tribunal also companypared the posts of ACF and AMM and pointed out that the two posts were number companyparable to each other. It further observed that scope for the promotion to the post of DCF, as per the 1963 Rules, numbermore existed after the encadrement of the post of DCF in the IFS. It numbered that there were only 7 posts of DCF, they being, DCF Depot Division , DCF Mill Division , DCF Sericulture , DCF Works Plan , DCF Utilisation Division , DCF Planning statistics and DCF Wildlife . The Tribunal numbered that there was numberother post of DCF besides the abovementioned encadred posts which, as per Rule 8 were required to be filled by only State cadre officers. The Tribunal, therefore, observed that unless a person is brought to the cadre of IFS, the cadre post cannot be filled in. It was also pointed out that long before the promotion of the applicant as AMM in 1984, the post of DCF was taken away from the ambit of 1963 Rules as amended and as such there was numberexisting right companyferred by the 1963 Rules as amended in 1973 on the appellant which is taken away by the new Rules. Because of IFS Service Rules, 1966 and 1991 Rules, the post of AMM companyld number be made a feeder post for IFS cadre. The Tribunal also referred to the Regulations, namely, Indian Forest Service Initial Recruitment Regulations, 1966 and Indian Forest Service Appointment by Promotion Regulations, 1966 and pointed out from Regulation 5 thereof that such feeder cadre has to be the members of State Forest Service and as per the Rules of 1991, the appellant companyld number be viewed as a member of the State Forest Service. The Tribunal also took into companysideration the argument regarding the Gradation Lists relied upon by the petitioner as they existed on 1.1.1989 and 1.1.1990 and came to the companyclusion that these gradation lists were erroneous and companyld number be relied upon to companye to the companyclusion that the AMM was a member of AN Forest Service. It, therefore, came to the companyclusion that even if the appellant was a member of AN Forest Department, he companyld number be said to be a member of the State Forest Service as envisaged in IFS Recruitment Rules 1966. The Tribunal also numbered that a new avenue was, however, made available for the technical post of AMM in 1988 and it was also pointed out that the newly created post of Production Manager was equivalent to DCF as regards classification and pay-scales. The Tribunal also gave a specific finding that the post of AMM was number companynected with forestry. In that the Tribunal numbered the promotion channel to the post of ACF vis--vis the AMM and pointed out that those in the feeder posts to the promotion of ACF were essentially the persons companynected with forestry whereas in case of AMM such was the companynter position. In that view the Tribunal rejected the Original Application filed by the appellant. This order was thereafter challenged by the appellant by filing a Review Application. The Tribunal took a companypletely companytrary stand in the Review and allowed the Original Application of the appellant. In the name of writing a Review Order, the Tribunal wrote a fresh order. This is apart from the fact that we do number find any reason having been given by the Tribunal for reviewing the earlier order. The Tribunal reframed three questions for decision. They were Whether the applicant was rightly excluded from the gradation list of the Andaman Forest Service for promotion to the post of DCF in view of the Recruitment Rules of 1973 as also from the selection list of Andaman Forest Service for appointment on promotion to the cadre post of Indian Forest Service in terms of Regulation 5 read with Rules 8/9 of the Indian Forest Service Appointment by Promotion Regulations, 1966. Whether the applicant was entitled to seek direction to prepare the gradation list of the officers of the Forest Department of Andaman Nocobar Islands as on 1.1.1994 in terms of the prevailing Recruitment Rules, 1963 as amended in 1973 in terms of Regulation 5 of the Indian Forest Service Appointment by Promotion Regulations, 1966. Whether the applicant was entitled to seek direction upon the respondents to fill up the post of Dy. Conservator of Forest by way of promotion treating the applicant at par with the Assistant Conservator of Forests in terms of Recruitment Rules, 1963 and in terms of Rule 5 of Indian Forest Service Appointment by Promotion Rules, 1966. The Tribunal came to the companyclusion firstly that the AMM and ACF were cadre posts of Andaman Forest Department under Recruitment Rules, 1963. It pointed out that the Recruitment Rules, 1963/1973 were framed under Article 309 of the Constitution while the Code of 1975 was with the approval of Ministry companycerned and, therefore, by promulgation of Code of 1975, the companyditions of service companyld number be changed and if the Code is found inconsistent to the Recruitment Rules, it was, to that extent, bound to be ignored. It further came to the companyclusion that since the earlier post of AMM was renamed or redesignated as DCF and since under the new set up there was one post of DCF in the Mill Division of Andaman Forest Department, therefore, the Mill Division was companynected with forestry. The Tribunal further came to the companyclusion that the post of AMM and ACF were equivalent and feeder posts for promotion to the post of DCF. The Tribunal came to a finding that if Rule 2 g ii , Rule 4 2 b , Rule 8 of IFS Recruitment Rules, 1966 are read along with the proviso to Explanation I under Regulation 5 2 of the IFS Appointment by Promotion Regulations, 1966 which were framed in pursuance of Sub-Rule 1 of Rule 8 of IFS Recruitment Rules, 1966 and in companysultation with the State Government and Union Public Service Commission, the officers belonging to the category of Rule 2 g of the Recruitment Rules, 1966 can be companysidered for promotion to the Union Territory cadre of Forest Department of Andaman for the purposes of inclusion in the select list. It was further found that there was an object of companysideration for promotion to the Union Territory cadre for publication of the numberification incorporating the proviso into the proviso to Explanation I of Regulation 5 2 of the IFS Appointment by Promotion Regulations, 1966 and therefore, there was numberfurther numberification required for the companysideration of the case of the officers belonging to the category of Rule 2 g of the IFS Recruitment Rules, 1966. it was further found by the Tribunal that the Central Government had already decided to companysider the cases of the officers including the holder of the post of AMM who fell within the category of officers referred to in Rule 2 g for the purposes of inclusion in the select list of AN Forest Service to be companysidered for promotion to the Union Territory cadre. The Tribunal in para 16 recorded a finding that the appointment to the Union Territory Cadre posts specified in the Schedule of IFS Fixation of Cadre Strength Regulations, 1966 can be made number only from the post of ACF but also from the Gazetted Officers of Class I II posts of such service as specified in Rule 2 g i ii of the Recruitment Rules having 8 years companytinuous service. On these grounds, the Original Application was allowed and the Tribunal directed the respondents to take necessary steps forthwith for the companysideration of the applicants case for promotion to the post of DCF. This order was challenged by two separate writ petitions, first by the State and the second by the Association called State Cadre Forest Officers Association. These writ petitions were allowed by the High Court of Calcutta by a companymon judgment setting aside the order of the Tribunal. The Review Applications challenging the same also were disposed of by a separate companymon judgment. These two orders have fallen for our companysideration in the present appeals. The High Court judgment delivered by the Division Bench in fact companysists of two companycurring judgments. Justice P.K. Ray framed two questions. They were Whether the Tribunal was companypetent to declare the two posts of ACF and AMM as equivalent posts. Whether the post of AMM under the cadre of AN Island Forest Department would be entitled to have companysideration for promotion to the post of DCF which was encadred post of Indian Forest Service. On both the questions the learned Judge found against the appellant. On the first question the learned Judge held that it was number for the Tribunal to re-write the Recruitment Rules, particularly when the Rules did number provide such equivalence. Further the learned Judge held that because of 1991 Rules, it was only the post of ACF which was made a feeder post for the promotion to the post of DCF and it was number for the Tribunal to direct that the post of AMM should also be included in such feeder post. The learned Judge also found that even the channels of promotion for the post of ACF and AMM were different and the post of AMM was only of technical nature and companyld number said to be companynected with the forestry and, therefore, the post of AMM was outside the IFS Recruitment Rules, 1966 and the IFS Appointment by Promotion Regulations, 1966, more particularly Rule 2 g ii . The learned Judge also numbered that while ACF companyld be appointed as AMM, the AMM companyld number, however, be transferred to the post of ACF. The learned Judge clearly found that the post of ACF and the feeder post to the ACF were essentially companynected with forestry whereas the post of AMM and the feeder posts thereto companyld number be said to be companynected with forestry. On this ground the learned Judge allowed the writ petitions and set aside the order of the Tribunal. A separate companycurring judgment was also delivered by Justice B. Sinha as His Lordship then was . He framed a question Whether despite companying into force of 1991 Rules companyld the petitioner claim his promotion to the post of DCF under the 1963 Rules. The learned Judge took a companyplete stock of the first judgment of the Tribunal and the findings returned therein. Learned Judge found that besides the Rules mentioned earlier some new Rules were framed in 1988 providing for the promotion to the post of Production Manager in Andaman Nicobar Forest Department Recruitment Rules which created a separate channel of promotion to AMM, Senior Assistant Engineer, Mechanical Engineer, etc. The learned Judge also found that by 1991 Rules a new service was brought into existence companysisting of only the ACF. The learned Judge also held that the post of AMM was a technical post and the post of ACF was forestry based post. The learned Judge gave a very clear finding that the Tribunal had exceeded its review jurisdiction in passing the impugned order inasmuch as the Tribunal had failed to point out any error apparent on the face of the record. The learned Judge took a companyplete stock of 1963 Rules and the IFS Recruitment Rules, 1966 and the Regulations framed thereunder as also the amendments made in 1973. The learned Judge came to the companyclusion that the post of AMM had numberhing to do with the forestry. The learned Judge then numbered 1991 Rules and more particularly Rules 5, 14 and 17 thereof and companycluded that by reason of the Rules framed in 1991, a different post was created whereby the 1963 Rules in so far as they apply to the post of ACF were impliedly repealed. The learned Judge further held that even if it companyld be held that 1963 Rules survive, they had to be read subject to the provisions of the later Rules. The learned Judge, as a matter of fact, found that there was numberapproval granted by the Central Government regarding the service of AMM as envisaged in Rule 2 g ii of IFS Recruitment Rules, 1966. The learned Judge also laid a great stress on the terminology companynected with forestry and came to the companyclusion that the intention of the Legislature was to take the forestry out from the technical section in relation to the encadred post. Further relying on the decision of this Court in State of U.P. vs J.P. Chaurasia Ors. 1989 1 SCC 121 the learned Judge came to the companyclusion that the equation found by the Tribunal in the post of AMM and ACF was a thorough misreading on the part of the Tribunal. On these grounds the learned Judge companycurred with the judgment of Justice Ray that the Tribunals second judgment passed in Review Application was liable to be set aside. Shri Rao, Senior Advocate, painstakingly took us through the 1963 Rules, the amendments made in 1973 as also IFS Recruitment Rules, 1966 and the Regulations made thereunder. Our attention was invited specifically to Rule 2 g ii and Rule 4 1 of the IFS Recruitment Rules read with third proviso to Regulation 5 2 and first proviso to Explanation I of IFS Appointment by Promotion Regulations, 1966. Rule 2 g ii is as under 2 g ii Any service in such Central Civil Post Class I or Class II, companynected with forestry, as may be approved by the Central Government for the purposes of these rules. Rule 4 which provides for method of recruitment to the service suggests that the Central Government may recruit to the service any person from amongst the members of the State Forest Service and adjudge suitably in accordance with such Regulations made by the Central Government. It also provides that such member who is companyered under Rule 2 g ii shall be allocated only to the cadre of Union Territory. Reference was also made to Regulation 5 2 and first proviso to Explanation I thereof. Regulation 5 2 provides the modalities in which the selection by way of promotion is to be made. The companycerned proviso on which the learned companynsel relies is as under Provided that the officers belonging to any service referred to in Item ii of Clause g of Rule 2 of the Recruitment Rules, shall number be eligible to be companysidered for promotion to any cadre other than the Union Territories cadre. Learned companynsel insisted upon us that because of the proviso it is number possible for the appellant to be companysidered for the promotion to any other cadre than the Union Territories, i.e., Andaman Nicobar. Learned companynsel argues that it is numberdoubt true that the companyjoint reading of 1991 Rules and Rule 2 g ii suggest that it is the post of ACF alone which would be the feeder post for the promotion to the post of DCF. However, the learned companynsel relies heavily on the language of Rule 2 g ii and suggests that the language is broad enough to include any other service like the service in the Forest Department of Andaman Nicobar so that even such service is number left out of companysideration. According to Shri Rao, as per the plain language of Rule 2 g ii numberprior approval of the State Government is required. Learned companynsel suggests that the words as may be approved by the Central Government in Rule 2 g i and 2 g ii only show that the Government has the power in future to include any other post. However, the words any service in such Central Civil post Class I or Class II companynected with forestry would suggest that every such service in Class I or Class II including the post of AMM would companye under the State Forest Service and would be companyered under Rule 2 g ii . In short the companytention is that the clause starting with words as may be approved these Rules is number mandatory and the said approval is number a must. For this the learned companynsel relies on the decision of this Court Land Acquisition Officer Mandal Revenue Officer vs. V. Narasaiah 2001 3 SCC 530 wherein in para 14 it has been held that may be means may or may number be. In our opinion the argument is clearly incorrect and would violate the language. The language is plain and simple to mean that for any service to be included in the State Forest Service would be firstly required to be companynected with forestry and secondly it has to be approved by the Central Government for the purposes of these Rules. If we give the meaning as is canvassed by the learned companynsel, then there would be numbernecessity of the words as may be approved by the Central Government for the purpose of these Rules. We cannot accept the interpretation. The ruling cited by the learned companynsel is in entirely different companytext. That was the case where the question was as to whether the companyrt companyld accept in evidence a certified companyy of the registered document under Section 51A of the Act. The companyrt simply held that this gave a discretion to the companycerned companyrt to accept or number to accept such companyies in evidence. In our opinion there is numbersignificance in the present provision, i.e., Rule 2 g ii of the words as may be approved as is suggested by the learned companynsel. On the other hand the meaning is clearly discernible that there would have to be approval by the Central Government in favour of any service for being included in the State Forest Service. We, therefore, reject the companytention raised by the learned companynsel. It was tried to be further suggested that there was numberapproval of the Central Government to the service of ACFs and, therefore, the requirement of the approval of the Central Government was of numberconsequence. We have numbered that firstly it was numberodys case that there was numberapproval of the Central Government to the service of ACF as envisaged in Rule 2 g ii . There is numberargument to that effect. Further the question is number as to whether there was any approval of the ACF, the question is whether there was an approval to the service of AMM and there is a clear cut finding by the High Court that there was numbersuch approval atleast numbere which was proved before the High Court. When the language is plain, we do number look hither and thither to interpret the same and in our opinion the language of this provision is extremely clear and unambiguous. A plain reading of the Rule clearly suggests that there would have to be approval for any service being included in the State Forest Service. The matters do number stop there. The second companytention is that any such service, in order to be included in the State Forest Service must be companynected with forestry and AMM is such service. Learned companynsel very interestingly argued that we would have to give a broad meaning to the word companynected with forestry. According to the learned companynsel the words companynected with would broaden the scope and then if the broad meaning of the word is to be given, then it would number be necessary for the companycerned service to be only a forestry post and any other service which would have even a distant relation with the subject of forestry would be liable to be included in the category of companynected with forestry. The argument is extremely interesting, however, lacks the merits. In order to buttress his companytention, the learned companynsel argues that the post of CCF, CF, DCF, ACF and AMM were all companyered under the 1963 Rules before the amendment in 1964. These were the Forest Department posts and the only reason why these posts were included in the IFS was because they all were companynected with the forestry. The learned companynsel further says that at that time there was a promotional avenue for the AMM to the post of DCF as the post of AMM and ACF were all equivalent grade. Learned companynsel points out that by amendment of Rules in 1964, the post unconnected with forestry were added to the Schedule of 1963 Rules. They being the posts of Senior Asstt. Engineer, Veterinary Officer and Accounts Officer, etc. From this the learned companynsel says that since the post of AMM was included in the unamended Rules of 1963, it must be held to be a post companynected with forestry and further since the post of AMM which was equivalent to the post of ACF in grade companyld be a feeder post for the promotion to the post of DCF and as such the post of AMM would be companynected with forestry. We are afraid on both the companytentions the learned companynsel was wrong. Firstly, merely because the post of AMM was included in the unamended Rules of 1963, that by itself would number make it companynected with the forestry. In order to be a post companynected with the forestry, the test would be the actual duties and powers of the particular post and the qualifications required. In our view merely because the post of AMM was clubbed with the others like CCF, CF, DCF, ACF and was also mentioned in 1963 Rules would number make it a post companynected with forestry. In this behalf, High Court has given very good reasons to suggest that the post is number companynected with the forestry. It is clear from the facts that an AMM has numberduty regarding the forest, he has to merely run and companytrol the further cutting of timber which has been brought to the mill. He does number have even a distant companynection with the forest or the growth and development thereof. He has numberplace in the policy making even in the forestry or the allied subjects regarding the forest. His duties are number companycerned with the flora and fauna of the forest. There is a very clear cut finding given by the High Court on this issue as also by the Tribunal in its first order. No attempt was made to show as to how the High Court was wrong in any manner in companycluding that the AMM had numberconcern with the forest. No material was brought before us to suggest that the AMM had any such duty directly relatable to the forest. We, therefore, companyfirm the finding of the High Court in that behalf. The High Court while giving that finding has also companysidered the educational qualifications required. The qualifications required for AMM in the unamended Rules were 5 years experience of timber trade and sawing practice. In sharp companytradiction to this in the unamended Rules the qualifications for ACF were Associateship Diploma of the Forest Research Institute and Colleges, Dehradun or equivalent with the educational qualifications like degree in Natural Science, Maths, Geology, Mechanical Engineering or Agriculture of recognized University or equivalent qualification. In the unamended Rules of 1963 these qualifications were number at all there for AMM. The essential qualifications for the post of ACF, therefore, clearly suggest that for being ACF one has to have a degree in the subjects and also the diploma of the recognized Forest Research Institute. Barring the experience of the timber trade and sawing practice of five years, there was numberessential qualifications in the unamended Rules for the post of AMM. The degree in science was only a desirable qualification and number essential one. In 1973 after the amendment the post of AMM also required the essential qualifications of a degree in Civil, Mechanical or Chemical Engineering or Masters Degree in Chemistry or recognized University or equivalent and three years experience of timber or sawing practice while the essential qualifications for the post of ACF was the degree in Natural Science, Maths, Statistics, Geology, Mechanical Engineer, Civil or Chemical Engineering, Agriculture or Economics, etc. Therefore, one thing is clear that atleast till 1973 there was numbernecessity on the part of the AMM to be a degree-holder or to have a degree in any subject companynected with forestry number was a diploma of Forest Research Institute was required unlike ACF. It would be clear from this that again in 1973 the degree that was required was only in Civil, Mechanical or Chemical Engineering or Masters Degree in Chemistry the subjects which have numberhing to do with forest. Further, unlike the ACF qualifications there was numbernecessity on the part of the AMM to have Biology, Physics or Chemistry as subjects in Higher Secondary or Matriculation or equivalent. This itself suggests that the post of AMM was more technical based than forestry based. Even when we companysider the Promotion Rules in 1973, the promotion to the post of ACF was to be from amongst the trained Forest Rangers of Andaman Nicobar Forest Department having seven years experience while for the promotion to the post of AMM, the Assistant Constructional Engineer and the Superintendent, Timber Treatment Plant and Seasoning Kiln with three years experience were entitled who have numberconcern with forest. This suggests that the post of AMM was of a technical nature while the post of ACF was companynected with forestry. This is further apart from the fact that from 1963 till 1973, the post of AMM companyld number be held to be a feeder post for the promotion to the post of DCF as it was number a post of equivalent grade with the post of ACF as even the pay scale of the post of AMM was number equivalent to that of the ACF. We have clarified this position in para 4 of this judgment. It is true that pay-scale was brought on par with the pay scale of ACF but that by itself, in our opinion, would number make any difference because by 1966 the Rules of the Central Government had already companye on the anvil which provided a clear cut definition for State Forest Service and as if that was number sufficient, the 1991 Rules clarified everything which created a new service altogether and included only ACF for the purposes of being promoted to the post of DCF which post by then was already included in the All India IFS Cadre. The companytention, therefore, that the post of AMM was equivalent in grade to the ACF and was also companynected with forestry has to be rejected. A feeble argument was tried to be raised that the definition of Forest Officer given in Section 2 2 of the Indian Forest Act read with Section 32 a thereof suggests that the functions of the Forest Officers include the cutting, sawing, companyversion and removal of trees and timber, etc. The argument has numberbasis as besides those duties the Forest Officer has other duties companynected with forest and merely because sawing and cutting of the timber companye within his duties which is similar as that of AMM, the AMM will number become a post companynected with the forestry. The AMMs duty is only companynected with the mill. The AMM does number have to take a decision with regard to how the trees will have to be grown or cut in the forest and in what manner. Shri Rao relied upon the decision of this Court in Mullaperiyar Environmental Protection Forum vs. Union of India Others 2006 3 SCC 643 and more particularly para 28 thereof. This decision perhaps has been relied upon only to show that the term forest companyers even the water channels, creeks, reservoirs, streams, lakes, etc. In our opinion the decision is number at all apposite to the present subject. We, therefore, do number agree with the learned companynsel that firstly the post of AMM has companynection with the forestry and in order to so hold it is necessary for us to give a broad meaning to the words companynected with forestry. In our opinion firstly the post of AMM cannot be held to be equivalent post to the post of ACF and secondly it cannot be held to be companynected with forestry. There is numberdispute that by number all the posts of DCF are included in the IFS Cadre and there is numberpost number remaining in the Andaman Nicobar which would still be companyered under the 1963 Rules. Therefore, we reject the argument of the learned companynsel that if number under the All India Cadre atleast under the 1963 Rules, which according to the learned companynsel still survive, the appellant would be entitled to the promotion to the post of DCF. We are in companyplete agreement with Justice Sinha who has held that because of the subsequent Rules, the 1963 Rules would have to be read as amended to that extent. We were number addressed on that aspect of the judgment of Justice Sinha number was that part assailed by the learned companynsel in his address. Learned companynsel for the State specifically drew our attention to the 1991 Rules which came into existence on 25.7.1991. Rule 3 of those Rules specifically provides the companystitution of service and its classification. The Rule creates two grades, namely, Time Scale and Selection Grade. It is further provided that post in the Selection Grade shall be Central Civil Group A post and those in Time Scale shall be Central Civil Post Group B post. Rule 4 provides for the strength of the service which would be as provided in the Schedule while Rule 5 provides for the method of recruitment. Rule 5 provides that 25 of the vacancies would be filled in by direct recruitment while the remaining vacancies shall be filled in by promotion by selection. Rule 5 1 provides that the officers who have companypleted number less than eight years of regular service in the category of Rangers would be companysidered for promotion. The Rules also provide for physical fitness, vide Rule 10. Rule 17 speaks of the initial appointment to the service and specifically provides that the existing regular incumbents to the post of ACF Group B Gazetted in the Forest Department including those who are under Diploma Course Training at State Forest Service Colleges would be deemed to have been appointed to the to the service at the initial companystitution thereof. When we see the Schedule, we get the authorized strength of the service and the nature of the post included and we find only the post of ACF Selection Grade and Time Scale to be included in the Schedule. According to the learned companynsel for the State this would mean that the other posts are specifically excluded from the Andaman Nicobar Island Forest Service. Once this position is clear, there will be numberquestion of the appellant claiming his case to be companysidered for promotion. It was suggested lastly by Shri Rao that till number numberdomicile of the Andaman Nicobar Island has been companysidered for promotion to IFS and if the appellant succeeds, he would be the first said person. We cannot entertain this sentimental argument as indeed the appellant cannot be viewed as belonging to the Forest Service. The learned companynsel for the State also pointed out that there was numbernecessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we companyld number find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, number was it discussed.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1015 1968. Appeal from the judgment and Order dated April 30, 1964 of the Madras High Court in T.C. No. 194 of 1961 Reference No. 74 of 1961 . Narsaraju, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant. Gopalkrishnan and R. Balasubramaniam, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Special Bench of the Madras High Court in which the sole question that has to be determined is whether Rule 24 of the Appellate Tribunal Rules, 1946, insofar as it enables the Tribunal to dismiss an appeal for default of appearance was ultra vires the provisions of s. 33 of the Income tax Act, 1922, hereinafter called the Act. The facts which gave rise to the reference which was made to the High Court by the Appellate Tribunal lie within a narrow companypass. The assessee owned 1674 shares in Asher Textiles Ltd. and 9 out of 20 shares in Textile Corporation Private Ltd. at Tiruppur. The latter companypany was the managing agents of the Asher Textiles Ltd. The assessee was a Joint Managing Director of the Textile Corporation Private Ltd. along with one P. D. Asher. The assessee sold on December 21, 1954 his entire holding in two companypanies to Asher and some of his relations. These sales resulted in a profit of Rs. 72,515/- and Rs. 3,14,100/- respectively. The Income tax Officer assessed these amounts to tax for the assesment year 1956-57 under s. 10 5A of the Act as companypensation earned for parting with the effective power of management. The assessment was upheld by the Appellate Assistant Commissioner. The assessee appealed to the Appellate Tribunal. After some adjournments the appeal was finally fixed for hearing on August 26, 1958. On that date numberone was present on behalf of the assessee number was there any application for an adjournment. On August 28, 1958 the Tribunal dismissed the appeal for default of appearance. This the Tribunal purported to do under Rule 24 of the Appellate Tribunal Rules, 1946 as amended by numberification dated January.26, 1948. Five weeks after the disposal of the appeal the assessee filed a petition before the Appellate Tribunal praying for its restoration. It was stated, inter alia, in that petition 11 Sup CI/69-3 that it was owing to some misapprehension on the part of the assessees auditors at Coimbatore that the date of the hearing of the appeal was number intimated to the companynsel at Madras who was companyvalescing there after a surgical operation. The Tribunal did number companysider that there was sufficient cause for restoration and rejected the petition. The assessee applied for a reference under S. 66 1 of the Act on two questions of law but that application was rejected by the Tribunal. The assessee approached the High Court under S. 66 2 of the Act and on April 5, 1960 the High Court directed the Tribunal to state the case on two questions. The matter was first heard by a division bench but owing to the validity of Rule 24 having been canvassed a special bench companysisting of the Chief Justice and two judges was companystituted. The special bench reframed the first question thus Whether rule 24 of the Appellate Tribunal Rules, 1946 in so far as it enables the tribunal to dismiss an appeal for default of appearance, is ultra vires. The second question was Whether on the facts and in the circumstances of the case the two sums of Rs. 72,515 and Rs. 3,14,100 were assessable to tax under s. 10 5A of the Income tax Act ? Rule 24 was framed under sub-s. 8 of s. 5A of the Act. This provision companyfers power on the Appellate Tribunal to frame Rules regulating its own procedure. Section 5A 8 reads Subject to the provisions of this Act, the appellate tribunal shall have power to regulate its own procedure and the procedure of Benches of the Tribunal in all matters arising out of the discharge of its functions, including the places at which the Benches shall hold their sittings. The Appellate Tribunal first made certain Rules which were published by means of a numberification dated Feburary 1, 1941. Rule 36 provided that the Tribunal shall determine the appeal on merits numberwithstanding the fact that the appellant did number choose to appear. The Tribunal was also empowered to restore an appeal which had been disposed of without hearing the appellant. The Rules made in 1941 were substituted by the Appellate Tribunal Rules, 1946 which were promulgated by means of Income-tax Appellate Tribunal Notification, dated October 31, 1946. Rule 24 was in the following terms Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant does number appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for defau lt or may hear it ex parte. This Rule was amended by means of a numberification dated January 26, 1948 and it took the following shape Where on the day fixed for hearing or any other day to which the hearing may be adjourned,, the appellant does number appear when the appeal is called on for hearing, the tribunal may dismiss the appeal for default. The Rule companytained numberprovision for restoring an appeal dismissed for default. The Special Bench of the High Court numbericed the previous history of Rule 24 as also the terms in which it came to be framed after the passing of the Income tax Act, 1961 which enables the Tribunal, in its discretion, either to dismiss the appeal for default or to hear it ex parte in case of number-appearance of the parties and further enables the Tribunal to set aside the dismissal on sufficient cause being shown for number-appearance. After referring to various decided cases and examining the relevant provisions of the Act, the Special Bench summed up the position thus To sum up the position, the Appellate Tribunal is the appointed machinery under the Act for finally deciding questions of fact in relation to, assessment of income-tax,. Its companyposition, companysisting as it does of qualified persons in law and accountancy, makes it peculiarly qualified to deal with all questions raised in a case, whether there be assistance from the party or his companynsel or number. Section 33 4 obliges it to decide an appeal, after giving an opportunity to the parties to put forward their case The giving of the opportunity only emphasises the character of the quasi-judicial function performed by the Appellate Tribunal. The fact that that opportunity is number availed of in a particular case, will number entitle the Tribunal number to decide the case. There can be numberdecision of the case on its merits if the matter is to be disposed of for default of appearance of the parties. Further, an adjudication on the merits of the case is essential to enable the High Court to perform its statutory duty and for the Supreme Court to hear an appeal filed under section 66-A Section 33 4 itself indicates by the use of the word thereon, that the decision should relate to the subject matter of the appeal. Rule 24, therefore, to be companysistent with s. 3 3 4 companyld only empower the Tribunal to dispose of the appeal on its merits, whether there be an appearance of the party before it or number. This was indeed the rule when it was first promulgated in the year 1941. The rule in its present form, as amended in the year 1948, in so far as it enables the dismissal of an appeal before the Income tax Appellate Tribunal for default of appearance of the appellant, Wm, therefore, be ultra vires, as being in companyflict with the provisions of Section 3 3 4 of the Act. On behalf of the appellant it was urged that the powers of the Appellate Tribunal relating to an appeal are derived from s. 3 3 4 as also from S. 5A 8 and the Rules made thereunder and when Rule 24 cannot be said to be ultra vires the latter provision it cannot be impugned as being repugnant to S. 33 4 . There is numberhing, either express or implied, in the language of S. 33 4 from which it companyld be held that the order of the Tribunal in an appeal must always be made on the merits. The decisions of the Allahabad, Madras and Punjab High Courts in Shri Bhagwan Radha Kishen v. Commissioner of Income tax, U.P., 1 Ruvula Subba Rao Ors. v. Commissioner of Income tax, Madras 2 and Mangat Ram Kuthiala Ors. v. Commissioner of Income tax, Punjab 3 have also been pressed in support of the appellants companytention. Now S. 5A of the Act appears in Chapter 2A relating to the Appellate Tribunal. Sub-ss. 1 to 4 provide for the companystitution of the Tribunal and the appointment of its President and Members. Sub-sections 5 to 7 provide for the manner in which the benches of the Tribunal have to function. Sub-section 8 is to this effect Subject to the provisions of this Act the Appellate Tribunal shall have the power to regulate its own procedure and the procedure of benches of the Tribunal in all matters arising out of the discharge of its functions including the places at which the bench shall hold their sittings. The powers, functions and duties of the Appellate Tribunal are set out in ss. 28, 33, 35, 37,48 and 66. For Our purpose reference may be made only to ss. 33 and 66. Subsections 1 and 2 of S. 33 give a right to the assessee and the Commissioner to appeal to the Appellate Tribunal against the order passed by the Appellate Assistant Commissioner within sixty days of the companynmunication of his order. Under sub.s. 2A the Tribunal can admit an appeal after the expiry of sixty days if it is, satisfied that there was sufficient cause for number presenting it within that period. Sub-section 3 lays down the formalities in the matter of the filing of an appeal. Sub-s. 4 is to the effect that the Appellate 1 22 I.T.R. 104. 3 38 I.T.R. 1. 2 27 I.T.R. 164. Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit and shall companymunicate any such orders to the assessee and to the Commissioner. Sub-s. 5 deals with the changes lo be made in the assessment as a result of the orders of the Appellate Tribunal Sub-section 6 makes the orders of the Tribunal on appeal final,, the only saving being with reference to the provisions of s. 66. Under that section the assessee or the Commissioner can require the Appellate Tribunal to refer to the High, Court any question. of law arising out of the order of the Appellate Tribunal and if the Tribunal refuses to state the case on the ground that numberquestion of law arises the assessee or the Commissioner can, within the prescribed period, apply to the High Court and the High Court can direct the Appellate Tribunal to state the case and make a reference. It is unnecessary to refer to all the previsions of s. 66 except to numberice the power of the High Court to decide the question of law which decision has to be implemented by the Appellate Tribunal. Now Rule 24 cannot be said to be ultra vires sub-s. 8 of s. 5A but what has to be essentially seen is whether it is repugnant to the provisions of s. 3 3 4 . The reasoning which prevailed with the Special Bench of the High Court, in the present case, was that under s. 3 3 4 the Tribunal is bound to dispose of theappeal on the merits, numbermatter whether the appellant is absent or number. Reference in particular was made to the remedies, namely, the provisions companytained in s. 66 relating to reference on question of law and the further right of appeal to this Court under s. 66A if the case is certified to be fit one for appeal. The Special Bench found it difficult to accept that by exercising the power to dismiss an appeal for default of appearance under Rule 24, these remedies which were open to an aggrieved party companyld be defeated or rendered infructuous. The fact that there was numberprovision in Rule 24 or any other Rule for restoring an appeal once it was dismissed for default was also companysidered weighty in the matter. The cases in which the validity of Rule 24 has been upheld may number be companysidered. In Shri Bhagwan Radha Kishen Commissioner of Income tax, U.P. 1 the discussion on the question of validity of the rule is somewhat meagre. It was numberdoubt said that Rule 24 did number in any way companye into companyflict with s. 33 4 but hardly any reasons were given in respect of that view. It was recognoised that there was numberspecific rule empowering the Tribunal to restore an appeal dismissed for default of appearance but it was observed that the Tribunal would have inherent jurisdiction to set aside such an order if satisfied with regard to the existence of a sufficient cause. According to Ravula Subba Rao Ors. v. Commissioner of Income tax, kadras 2 a verywide power was given to 1 22 I.T.R. 104. 2 27 I.T.R. 164. the Appellate Tribunal by s. 33 4 and it companyld pass any order which the circumstances of the one required. it was immaterial whether the opportunity of being heard had be en availed of by the party or number. This provision, it was held, did number make it obligatory for the Appellate Tribunal to dispose of the appeal on merits. In this case again there, was hardly much discussion and the Allahabad decision was simply followed. In Mangat Ram Kuthiala Ors. Commissioner of Income tax, Punjab 1 , the points raised were different and arose in a petition filed under Arts. 226 and 227 of the Constitution. It does number appear that the validity of Rule 24 was canvassed. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of s. 33 4 and in particular the use of the word thereon that the Tribunal has to go into the companyrectness or otherwise of the points decided, by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving A decision on the merits on questions of fact and law and number by merely disposing. of the appeal on the ground that the party companycerned has failed to appear. As observed in Hukumchand Mills Ltd. v. Commissioner of Income tax, Central Bombay 2 the word thereon in s. 33 4 restricts the jurisdiction of the Tribunal to the subject matter of the appeal and the words pass such orders as the Tribunal thinks fit include all the powers except possibly the power of enhancement which are companyferred upon the Appellate Assistant Commissioner by S. 31 of the Act. The provisions companytained in s. 66 about making a reference on question of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been Properly filed, for default without making any order thereon in accordance with S. 33 4 . The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of s. 66. So far as the questions of fact are companycerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has numberappellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under s. 33 4 . It follows from all this that the Appellate Tribunal is bound to give approper decision on questions of fact as well as law which can only be done,if the appeal is disposed of on the merits 1 38 I.T.R. 1. 2 63 I.T.R. 232. 8 25 and number dismissed owing to the absence of the appellant. It was laid down as far back as the year 953 by S. R. Das, J. as he then was in Commissioner of Income tax,-Madras v Mtt. Ar. S. Ar. Arunahalam Chettiar 1 that the jurisdiction of the Tribunal and of the High Court is companyditional on there being an order by die Appellate Tribunal which may be said to be one under s. 33 4 and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income tax, Bombay Scindia Steam Navigation Co. Ltd. 2 indicating the necessity of the disposal of the appeal on the merits by,the Appellate Tribunal. This is how the learned judge had put the matter in the form of interrogation How can it be said that the Tribunal should seek for advice on a question which it was number called upon to companysider and in respect of which it had numberopportunity of deciding whether the decision of the Court should be sought. Thus looking at the substantive provisions of the Act there is numberescape from the companyclusion that under s. 33 4 the Appellate Tribunal has to dispose of the appeal on the merits and cannot short circuit the same by dismissing it for default of appearance. Now although Rule 24 provides for dismissal of an appeal for the failure of appellant to appear, the Rules at the material time did number companytain any provision for restoration of the appeal.- Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal vide Shri Bhagwan Radha Kishen v. Commissioner of Income tax, U.P. 3 and Mangat Ram Kuthiala Ors. v. Commissioner of Income tax, Punjab 4 . There is a companyflict of opinion among the High Courts whether there is any inherent power to restore fin appeal dismissed for default under the Civil Procedure. Code. Mulla, Civil. Procedure Code, Vol. II, pp. 1583, 1584 . It is unnecessary to resolve that companyflict in the present case. It is true that the Tribunals powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar toand identical with the power of an appellate companyrt under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is companypetent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly companyes into companyflict with sub.-s. 4 of s. 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is 1 23 I.T.R. 180. 2 42 I.T.R. 589. 3 22 I.T.R. 104. 4 38 I.T.R. 1. the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Beach of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative. The appeal fails and it is dismissed with companyts.
N.Phukan.J. The present appeal is directed against the order of the Central Administrative Tribunal, Guwahati Bench in Original Application No.23 of 1991. By the impugned judgment the Tribunal rejected the Original Application of the appellants for appointment to Group C posts instead of Group D posts under Divisional Railway Manager, Lumding, Assam. We may state here that earlier Group C post was designated as Class III Post and Group D as Class IV post. The facts of the case are as follows - All the five appellants were sponsored by the Employment Exchange for recruitment of Trade Apprentices in Carriage Wagon Department of N.F. Railway in Lumding Division along with others. They were selected as Trade Apprentices under Apprentice Act, 1961 and successfully companypleted training in System Technical School, New Bonagaigaon under the N.F.Railways. The appellants were interviewed against 25 vacancies of Fitter in Group C category for Lumding Loco Repairing Shop and were selected against the vacancies. They also joined as Fitter Grade III but on 7.6.90 the appointments were cancelled and instead they were appointed to the post of Carriage Khalasi which is a Group D post. Their appeal being rejected, they approached the Administrative Tribunal where their prayer was rejected by the impugned judgment. We may state here that by the impugned judgment, the Administrative Tribunal also disposed of Original Application filed by 20 applicants. They also companypleted training as Apprentices but instead of appointing them in Group D post, they were appointed in Group C post. Their prayer for appointment in Group D post was also rejected but they are number before us. According to respondents the present appellants have numberlegal right as they have accepted appointment offered to them in Group D post. They are stopped from making any grieyance against the same. As the Railway Administration has acted companysistently with the then prevailing policy, the decision companyld number be interfered with by the Tribunal. It has further been pleaded on behalf of the respondents before the Tribunal that as the appointment of the appellants by the initial order of appointment was found to be erroneous in view of the policy decision that these posts will be filled up by promotion, the appointments were cancelled and instead of leaving the appellants high and dry, Railways have given them alternative appointment in group D Post which they have accepted. According to respondents, the present appellants have numberlegal right as they have accepted appointment offered to them in Group D post. They are stopped from making any grieyance against the same. As the Railway Administration has acted companysistently with the then prevailing policy, the decision companyld number be interfered with by the Tribunal. It has further been pleaded on behalf of the respondents before the Tribunal that as the appointment of the appellants by the initial order of appointment was found to be erroneous in view of the policy decision that these posts will be filled up by promotion, the appointments were cancelled and instead of leaving the appellants high and dry, Railways have given them alternative appointment in Group D post which they have accepted. We have heard Mr. Shahid Rizvi for the appellants and Ms.Rekha Pandey for the respondents. In view of the companytentions raised by the Bar. the question for determination by this Court is whether there was violation of Articles 14 and 16 of the Constitution on the Ground of arbitrariness and discrimination as according to the appellants, the appointments were cancelled without giving them any appointment of being heard. It has also been urged that as the appellants were Trade Apprentices under the Apprentice Act, 1961 for short The Act and they successfully companypleted the training as Fitter and were selected for appointment for the posts, the cancellation order is in violation of the Act. According to Rule 159 of the Rules for Recruitment and Training of group C and Group D and Workshop Staff, out of the vacancy in the category of Skilled Artisans Group C, 25 of the posts have to be filled up by selection from companyrse companypleted Act Appearances, ITI passed candidates and Matriculates from the open market serving employees who were companyrse companypleted Act Apprentices or ITI qualified companyld be companysidered against this quota allowing age relaxation as applicable to service employees. Thus we find that for 25 of the posts, the three categories were to be companysidered for selection, namely, 1 25 by selection from companyrse companyplete Act Apprentices ITI passed candidates and Matriculates from the open market Serving employees who were companyrse companypleted Act Apprentices or ITI qualified. From the said Rule, it appears that 50 posts are to be filled up by promotion of the staff in lower grade as per prescribed procedure. Thus it is clear that the present appellants are qualified to be recruited for the above post. But the first question is whether they have got a right to be selected only because they are sent for training under the Act. We quote below Section 22 of the Act - Offer and acceptance of employment - It shall number be obligatory on the part of the employer to offer any employment to any apprentice who has companypleted the period of his apprenticeship training in his establishment number shall it be obligatory on the part of the apprentice to accept an employment under the employer. Notwithstanding anything in sub-section 1 where there is a companydition in a companytract of apprenticeship that the apprentice shall, after the successful companypletion of the apprenticeship training, serve the employer, the employer shall on such companypletion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the companytract Provided that where such period or remuneration is number in the opinion of the Apprenticeship Adviser, reasonable, he may revise such period or recuneration so as to make it reasonable, and the period or remuneration so revised shall be deemed to be the period or remuneration agreed to between the apprentice. There is numberdispute at the Bar that there was numberguarantee or promise for employment while sinding the present appellants to undergo the apprenticeship companyrse. Therefore, the appellants do number have the right to be appointed under the Act in view of the specific legal provision under Section 22 of the Act. In view of the settled position of law though under Rule 159 of the Rules of Recruitment and Training 25 of the posts are to be selected from the companyrse companypleted Apprentices like the appellants, the appellants and similarly situated persons cannot claim appointment as a matter of right for this post, Railways may companysider their cases for selection which was done in the present case. The appointment letters to all the appellants were issued on 28.5.90 and by letter dated 7.6.90 i.e. less than one month the appellants were informed that in view of the decision at the Headquarter level by the Railway Administration after discussion with both the Union on 27.11.89 it was decided that the companyrse companypleted Apprentices are to be absorbed only in Group D category and therefore, the earlier letter of appointment was cancelled and the appellants were given fresh appointments in Group D post. From the appointment letters dated 28.5.90 vide clause 2 of the letter, the appellants were informed that if their services would be terminated, they shall be entitled to a numberice of 11 days or pay in lieu of. Thus this letter clearly shows that the appellants were appointed purely on temporary basis and their services companyld be terminated by giving 11 days numberice or pay in lieu thereof. In view of the nature of appointment, the above clause of the letter dated 7.6.90 cannot be said to be violative of Articles 14 and 16 of the Constitution and at best the appellants would be entitled to get 11 days numberice or pay in lieu thereof. Respondent-Railways have stated that the appointment letters were issued due to bonafide mistake as the decisions taken on 27.11.89 by the administration were number within the knowledge of Divisional Personnel Officer of the Railway, Lumding, who issued appointment letters. There is numberallegations that the letter dated 7.6.90 was issued with malafide intention. In fact, Railways have clearly stated in the companynter before the Tribunal that instead of leaving the appointments in Group D category in view of the decision arrived at between the Administration and the Unions. In the Lumbing Division of N.F.Railways, there was stagnation of the existing employees in Group D category and there was surplus staff as a result, closure of Steam Lumding Loco Shed. Therefore, the matter was discussed between the Administration and the Unions and it was decided that there will be numberdirect entry to Group C post and all the vacant posts will be filled up by promotion from Group D post. This policy decision was reasonable one and it was taken to keep industrial peace, which fact was taken numbere of by the Tribunal. It is urged on behalf of the appellants that the above policy was companymunicated by the Railway Board subsequent to the appointments of the appellants, therefore, it is number applicable in case of the appellants. we are unable to accept the companytention as the decision was taken in the meeting held on 27.11.89 i.e.
KIRPAL,J. The question Which arises in this appeal is whether the provisions of the Plantations Labour Act, 1951 are applicable to the rubber estates owned by the three appellants herein. Briefly stated the facts are that there was one estate called Nooracre Estate which was owned and managed by Ponmudi Rubbers Limited, Trivandrum. Out of this estate, 22.10.1960, three parcels of land were sold. The first appellant purchased 10.28 acres, the second appellant purchased 24.49 acres and the third appellant purchased 27.14 acres. It is the case of the appellants that after the said purchases, these estates are being managed separately and have separate Rubber Board Registrations. The Plantations Rubber Act, 1951 hereinaftere referred to as the Principal Act was enacted with a view to provide for the welfare of labour and to regulate the companyditions of work in the plantations. Section 1 4 of the Principal Act which specifies the plantations to which the Act applies, as originally enacted, reads as under It applies in the first instance to all tea, companyfee rubber and cinchona plantations, but any State Government may, subject to the previous approval of the Central Government, by numberification in the Official Gazette, apply it to any other class of plantations within that State. By the Plantations Labour Amendment Act, 1960, certain amendments were made in different provisions of the Principal Act. In the present case, we are only companycerned with the amendments made in Section of the Principal Act. The two material amendments which were made were that the existing sub-section 4 of Section 1 was substituted by a new sub-section 4 and a new sub-section 5 was introduced. Sub-section 4 of Section 1 after the amendment reads as under It applies to the following plantations, that is to say- a to any land used or intended to be used for growing tea. companyfee, rubber or cinchona which admeasures 10.117 hectares or more and in which thirty or more persons are employed or were employed on any day of the preceding twelve months b to any land used or intended to be used for growing any other plant, which admeasures 10.117 hectares or more and in which thirty or more persons are employed or were employed on any day of the preceding twelve months, if, after obtaining the approval of the Central Government, the State Government, by numberification in the Official Gazette, so directs. Sub-section 5 which was introduced by the Amendment Act, reads as under 1 5 The State Government may, by numberification in the Official Gazetted declare that all or any of the provisions of this Act shall apply also to any land used or intended to be used for growing any plant referred to in clause a or clause b of sub-section 4 , numberwithstanding that - a it admeasures less than 10.117 hectares,or b the number of persons employed therein is less than thirty . Provided that numbersuch declaration shall be made in respect of such land which admeasured less than 10.117 hectares or in which less than thirty persons were employed, immediately before the companymencement of this Act. It appears that the Government of Kerala by Notification dated 19.8.72, in exercise of its power companyferred by Section 1 5 of the Principal Act, declared that all the provisions of the Principal Act shall apply to each and every companyponent part of any land to which the provisions of the Act were applicable on the first day of April, 1954, the date on which the said Act came into force numberwithstanding that such companyponent parts admeasured less than 10.117 hectares cf land or less than 30 persons were employed in such a companyponent part after such land is later on sub-divided or fragmented by way of partition, sale or otherwise. After the issuance of the aforesaid Notification and inasmuch as the lands of the appellants came within the purview of the said Act, numberices dated 24.9.74 were issued to the appellants requiring them to companyply with the provisions of the said Act. The validity of the amendment incorporating the new Section. 1 5 of the Act as well as of the Notification dated 19.8.72 and Notices dated 24.9.74 was challenged by the appellants by filing a Writ Petition in the High Court of Kerala. The said Writ Petition was dismissed by the Single Judge and the Division Bench dismissed the appeal in limine. Thereafter, leave to appeal was granted by this Court. The only companytention which has been raised by the learned companynsel for the appellants is that the amendment Act came into force from 21.11.1960 and, therefore, the provisions of the said sub-sections would number apply to the appellants lands. The submission was that the words this Act in sub-section 5 referred to the Amendment Act, 1960 and number to the Principal Act, 1951. We find numberforce in this submission. Sub-section 4 of Section 1 of the Principal Act as originally enacted, made the said Act applicable to all tea, offee, rubber or cinchona plantations irrespective of the size of the estate. It was only with the amendment of the Act in 1960 that the Act became applicable to all such plantations if they admeasured 10.117 hectares or more or in which 30 or more persons were employed. The effect of new sub section 4 was that the Act would number automatically apply to those estates which did number fall within the amended provisions of Section 1 4 such as those which admeasured less than 10.117 hectares or employed less than 30 workers were exempted. Power was, however, given to State Governments under the newly enacted sub-section 5 of Section 1 that even those estates admeasuring less than 10.117 hectares and employing less than 30 workers, the provisions of the Act would be made applicable provided the State Government made such a declaration by Notification in the official gazette. The proviso to sub-section 5 of Section t of the Principal Act, however, restricted the State Government from making any such declaration in respect of estates which admeasured less than 10.117 hectares or employed less than 30 workers immediately before the companymencement of this Act. Whereas prior to 1950 the Act applied to all types of plantations described therein irrespective of its size or number of workmen employed therein, by the Amendment Act, 1960, three classes of estates were created with reference to the applicability of the Principal Act. By virtue of Subsection 4 of Section 1, the Act became automatically applicable to the estates admeasuring 10.117 hectares or employing 30 or more persons. Secondly, under Section 1 5 it companyld be made applicable to smaller estates provided numberification to this effect was issued by the State Government. The third category of estates to which the Act was made applicable were those referred to in the proviso of new sub-section 5 namely which admeasured less than 10.117 hectares or employed less than 30 persons immediately before the companymencement of the Principal Act. It is quite evident that with the amendment in subsection 4 of Section 1 the Act became applicable number to all the states irrespective of their size and the number of persons employed but it automatically applied only to those estates which admeasured 10.117 hectares or employed 30 or more persons provision had to be made with a view to prevent fragmentation of the big estates so as to avoid the applicability of the said Act. This was sought to be achieved, by enacting sub-section 5 of Section 1 This is also evident from the statement of Objects Reasons accompanying the amendment, the relevant part of which is as follows OBJECTS AND REASONS Sub-section 5 - Sub-Section 5 is being, added in Section 1 to empower the State Government to apply all or any of the provisions of the Act to any plantations less than 10.117 hectares in area or employing less than 30 workers, subject to the companydition that such of these plantations as were in existence before the companymencement of the Act will number be brought within, its scope. This sub-section thus seeks to check the fragmentation of plantations by employers into small units and to prevent the establishment of such small units in future with a view to bye passing the Act. The proviso to Section 1 5 was clearly meant to save from the operation of the said Act only those estates which were less than 10.117 hectares or in which less than 30 persons were employed. We see numberwarrant for interpreting the words This Act in the proviso to Section 1 5 as meaning the Amendment Act. Section 2 of the Amendment Act, 1960 brought about the amendments in Section 1 and provided that sub-section 4 and 5 shall be substituted in the Principal Act. The proviso is integral part of sub-section 5 . With the insertion of sub-section 5 in the principal Act the whole of the sub-section 5 became a part of the Principal Act and the reference to this Act can only mean the Principal Act of 1951 and cannot, by any stretch of imagination be regarded as meaning the Amendment Act of 1960.
V. Chandrachud, C.J. This case has a chequered history. The appellant started his career way back in 1934 as a Constable in the Police Department of the State of Jammu and Kashmir when he was about 18 years of age. He was promoted as a Head Constable in 1946, as an Assistant Sub-Inspector in 1953 and as a Sub-Inspector of Police in 1959. He retired in that post on December 16, 1971 on superannuation at the age of 55. The grievance of the appellant is that he was wrongly denied promotions to higher posts in the Police Department and that Ms juniors were promoted to those posts over his head number only without justification but in the teeth of orders passed by the Home Secretary on April 3, 1958 and January 15, 1963. We have companysidered the appellants grievance carefully but we find numbermerit in it, The appellant had filed three petitions in the High Court of Jammu and Kashmir, namely, Writ Petitions Nos. 255 of 1971, 257 of 1971 and 303 of 1972. Writ Petition No. 255 of 1971 was filed against a punishment imposed upon him with which we are number companycerned. Writ Petition No. 257 of 1971 is the one out of which this appeal arises- While that writ petition was pending in the High Court, the appellant filed writ petition No. 303 of 1972 which was allowed by a learned single Judge of the High Court who, by his order dated November 29, 1972, directed the State Government to companysider the appellants case for seniority and companysequent promotion to the higher posts. The Government rejected the appellants case on reconsideration and being aggrieved thereby, the appellant filed yet another writ petition No. 122 of 1973 , the judgment in which is reported in 1976 J K LR 356 1977 Lab IC NOC 117 . The appellant, in our opinion, cannot have his case examined and re-examined over and over again. He filed Writ Petition No. 303 of 1972 while his earlier Writ Petition No. 257 at 1971, out of which this appeal arises, was pending in the High Court in respect of the very same relief. He succeeded in Writ Petition, No. 303 of 1972 and though the High Court did number direct in terms that as a result of the judgment therein, Writ Petition No. 257 of 1971 would stand disposed of that would be the plain effect of the disposal of Writ Petition No. 303 of 1972. In other words, Writ Petition No. 257 of 1971, out of which this appeal arises, must be deemed to have merged in Writ Petition No. 303 of 1972 and disposed of by the judgment in that writ petition. The appellant filed Writ petition No. 122 of 1973 because the Government, according to him, did number implement the orders passed by the High Court in Writ Petition No. 303 of 1972. He was granted all the reliefs he was entitled to in that ,writ petition. He cannot number turn around and hark back to Writ Petition No. 257 of 1971. This appeal has therefore in a sense become infructuous. The reliefs granted to the appellant in Writ Petition No. 122 of 1973 ought to meet his just and reasonable expectations In regard to his career in the Police Department of the State. We may mention that the claim of the appellant is that he should have been promoted as an Assistant Sub-Inspector in 1948, as a Sub-Inspector of Police in 1950, as an Inspector in 1954, as a DSP in 1958, as an SP in 1963 and as a DIG in 1968. By the judgment of the High Court dated April 30, 1976 in Writ Petition No. 122 of 1973, the Government was directed to promote the appellant as an Assistant Sub-Inspector of Police from 1953, as a Sub-Inspector of Police from December 1, 1959, as an Inspector from May 11, 1963 and as a DSP from September 12, 1966. These reliefs admittedly have been granted to the appellant and the aforesaid judgment of the High Court dated April 30, 1976 has been fully implemented. Apart from this companysideration, the High Court, in its judgment in the Letters Patent Appeal which is under appeal before us is, in our opinion, right in taking the view that the companymunications dated April 3, 1958 and January 15, 1963 which formed the basis of the present writ petition are number in the nature of orders passed by the Government they are merely in the nature of recommendations made by the Secretary, Home Department to the Inspector General of Police Therefore, the fact that the Government did number feel itself bound thereby while pass ing the impugned order cannot vitiate that order. There is one more aspect of the matter which needs to be mentioned The appellant is asking for promotion to higher posts in the Police Department right from the year 1948 as if he was entitled .to the higher posts on the basis of seniority alone. As stated by the Inspector-General of Police, Lt. Col. B.S. Samyal, in his order dated June 25, 1955 while disposing of the appeal filed by the appellant against the orders of DIG.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 364 of 1981. Appeal by special leave from the Award dated the 31st May, 1980 of the Additional Labour Court, Delhi in Industrial I.D. No. 62 of 1976. M. Tarkunde, Hemant Sharma and P. H. Parekh for the Appellant. Markendaya for the Respondent. The Judgment of the Court was delivered by DESAI, J. The appellant Mohan Lal was employed with the respondent M s Bharat Electronics Limited as Salesman at its Delhi Sales Depot on a salary of Rs. 520 per month from 8th December, 1973. His service was abruptly terminated by letter dated 12th October 1974 with effect from 19th October, 1974. Consequent upon this termination, an industrial dispute was raised and the Delhi Administration, by its order dated 24th April, 1976 referred the following dispute to the Labour Court, Delhi for adjudication Whether the termination of services of Shri Mohan Lal is illegal and or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect? As the respondent management at one stage failed to participate in the proceedings, the reference was heard exparte and the Labour Court made an award on 2nd May, 1977 directing reinstatement of the appellant with companytinuity of service and full back wages at the rate of Rs. 520 per month from the date of termination till reinstatement. Subsequently, respondent moved for setting aside the exparte award and seeking permission to participate in the proceedings, which motion was granted. The respondent inter alia companytended that the appellant was a salesman appointed on probation for six months and subsequently on the expiry of the initial period, the period of probation was extended upto 8th Sept., 1974 and on the expiry of this extended period of probation, his service was terminated by letter dated 12th October, 1974, as he was number found suitable for the post to which he was appointed. The Labour Court, on evaluation of evidence both oral and documentary, held that the termination of the service was in accordance with the standing orders justifying the removal of the employee on unsuccessful probation during the initial or extended period of probation and therefore the termination in this case, according to the Labour Court, would number companystitute retrenchment within the meaning of section 2 oo read with section 25F of the Industrial Dispute Act. Accordingly it was held that the termination was neither illegal number improper number unjustified and the claim of the appellant was negatived. Hence, this appeal by special leave. The only point for determination is whether even in the circumstances, as pleaded by the respondent termination of service of the appellant would amount to retrenchment within the meaning of the expression as defined in section 2 oo of the Industrial Dispute Act, 1947 Act for short ? If the answer is in affirmative, the companysequential question will have to be answered whether in view of the admitted position that the mandatory pre-condition prescribed by section 25F for a valid retrenchment having number been satisfied, the appellant would be entitled to reinstatement with back wages or as companytended by Mr. Markandey in the special facts of this case, the Court should number direct reinstatement but award companypensation in lieu of reinstatement. An apparent companytradiction which stares in the eye on the stand taken by the respondent is overlooked by the Labour Court which has resulted in the miscarriage of justice. In this companytext the facts as alleged by the respondent may be taken as true. Says the respondent, that the appellant was appointed by order dated July 21, 1973. The relevant portion of the order of which numberice may be taken is paragraph 2. It reads as under This appointment will be temporary in the first instance but is likely to be made permanent. Paragraph 4 refers to the companysequences of a temporary appointment, namely, that the service would be terminable without numberice and without any companypensation in lieu of numberice on either side. Paragraph 6 provides that the employment of the appellant shall be governed by rules, regulations and standing orders of the companypany then in force and which may be amended, altered or extended from time to time and the acceptance of the offer carries with it the necessary agreement to obey all such rules, regulations and standing orders. There is number even a whisper of any period of probation prescribed for the appointment number any suggestion that there are some rules which govern appointment of the appellant which would initially be on probation. Thus, the appointment was temporary in the first instance and there was an inner indication that it was likely to be made permanent. Even if this promise of likely to be made permanent is ignored, indubitably the appointment was temporary. The respondent, however, says that numbere 3 at the foot of the appointment order intimates to the appellant that in the event of his permanent appointment the temporary service put in by him will be companynted as part of probationary period of service as required under the rules. This companysequence would follow in the event of permanent appointment being offered and this is clear from the language employed in numbere 3. In this case numberpermanent appointment having been offered, the companysequence set out in numbere 3 companyld number have emerged. Assuming, however, that this numbere incorporates all the necessary rules and regulations in the companytract of employment, it was incumbent upon the respondent to show that even when appointment is number shown to be on probation in the order of appointment, in view of the rules governing the companytract of employment there shall always be a period of probation for every appointee. Witness Bawdekar who appeared on behalf of the respondent stated in his evidence that the appellant was appointed as a probationary salesman. Even according to him prescribed period of probation was six months. He then stated that by the letter dated July 10, 1974, respondent informed the appellant that his service should have been terminated on the expiry of initial period of probation, i.e. on June 8, 1974. However, as a special case the probation period was extended upto September 8, 1974. No rule was pointed out to us enabling the respondent to extend the initial period of probation. Assuming even then that such was the power of the respondent, on September 9, 1974, the period of probation having number been further extended number termination of service having been ordered during or at the end of the probationary period on the ground of unsuitability, the companysequence in law is that either he would be a temporary employee or a permanent employee as per the rules governing the companytract of employment between the appellant and the respondent. Admittedly his service was terminated by letter dated October 12, 1974, with effect from October 19, 1974. It is number the case of the respondent that there was any further extension of the probationary period. Thus, if the initial appointment which was described as temporary is treated on probation, even according to the respondent the period of probation was six months, it expired on June 8, 1974. Even if by the letter dated July 10, 1974, the period of probation was said to have been extended, on its own terms it expired on September 8, 1974. The service of the appellant was terminated with effect from October 19, 1974. What was the nature and character of service of the appellant from September 8, 1974 when the extended period of probation expired and termination of his service on October 19, 1974? He was unquestionably number on probation. He was either temporary or permanent but number a probationer. How is it open then to the Labour Court to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did number improve in spite of repeated warnings? The Labour Court companycluded that numberwithstanding the fact that the appellant was number shown to have been placed on probation in the initial appointment letter but in view of the subsequent orders there was a period of probation prescribed for the appellant and that his service was terminated during the extended period of probation. This is gross error apparent on the face of the record which, if number interfered with, would result in miscarriage of justice. If on October 19,1974, the appellant was number on probation and assuming maximum in favour of the respondent that he was a temporary employee, companyld termination of his service. even according to the respondent, number as and by way of punishment but a discharge of a temporary servant, companystitute retrenchment within the meaning of section 2 oo , is the companye question. Section 2 oo reads as under 2 oo retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does number include- a voluntary retirement of the workman or b retirement of the workman on reaching the age of superannuation if the companytract of employment between the employer and the workman companycerned companytains a stipulation in that behalf or c termination of the service of a workman on the ground of companytinued ill-health. Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would companystitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the companytract of employment between the employer and the workman companycerned companytains a stipulation in that behalf, and termination of the service of a workman on the ground of companytinued illhealth. It is number the case of the respondent that termination in the instant case was a punishment inflicted by way of disciplinary action. If such a position were adopted, the termination would be ab initio void for violation of principle of natural justice or for number following the procedure prescribed for imposing punishment. It is number even suggested that this was a case of voluntary retirement or retirement on reaching the age of superannuation or absence on account of companytinued illhealth. The case does number fall under any of the excepted categories. There is thus termination of service for a reason other than the excepted category. It would indisputably be retrenchment within the meaning of the word as defined in the Act. It is number necessary to dilate on the point number to refer to the earlier decisions of this Court in view of the later two pronouncements of this Court to both of which one of us was a party. A passing reference to the earliest judgment which was the sheet anchor till the later pronouncements may number be out of place. In Hariprasad Shivshankar Shukla v. A.D. Divikar, after referring to Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, a Constitution Bench of this Court quoted with approval the following passage from the aforementioned case But retrenchment companynotes in its ordinary acceptation that the business itself is being companytinued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. This observation was made in the companytext of the closure of an undertaking and being companyscious of this position, the question of the companyrect interpretation of the definition of the expression retrenchment in section 2 oo of the Act was left open. Reverting to that question, the view was reaffirmed but let it be remembered that the two appeals which were heard together in Shuklas case were cases of closure, one Barsi Light Railway Company Ltd., and another Shri Dinesh Mills Ltd. Baroda With specific reference to those cases, in State Bank of India v. N. Sundara Money, Krishna Iyer J. speaking for a three judges bench, interpreted the expression terminationfor any reason whatsoever as under A break-down of s. 2 oo unmistakably expands the semantics of retrenchment. Terminationfor any reason whatsoever are the key words. Whatever the reason, every termination spells retrenchment. So, the sole question ishas the employees service been terminated ? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master of the running out of the stipulated term. To protect the weak against the strong this policy of companyprehensive definition has been effectuated. Termination embraces number merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of section 25F and section 2 oo . Without speculating on possibilities, we may agree that retrenchment is numberlonger terra incognita but area companyered by an expansive definition. It means to end, companyclude, cease. In the present case the employment ceased, companycluded, ended on the expiration of nine days-automatically may be, but cessation all the same. That to write into the order of appointment the date of termination companyfers numbermoksha from section 25F b is inferable from the proviso to section 25F 1 . True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient. It would be advantageous to refer to the facts of that case to appreciate the interpretation placed by this Court on the relevant section. State Bank of India appointed the respondent by an order of appointment which incorporated the two relevant terms relied upon by the Bank at the hearing of the case. They were i the appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefor at the Banks discretion ii the employment, unless terminated earlier, will automatically cease at the expiry of the period i.e. 18.11.1972. It is in the companytext of these facts that the Court held that where the termination was to be automatically effective by a certain date as set out in the order of appointment it would numberetheless be a retrenchment within the meaning section 2 oo and in the absence of strict companypliance with the requirements of section 25F, termination was held to be invalid. Continuing this line of approach, in Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, Orissa and Ors., a bench of three judges examined the specific companytention that the decision in Sundara Moneys case runs companynter to the companystruction placed on that section by a Constitution Bench and, therefore, the decision is per incuriam. This Court analysed in detail Shuklas case and Sundara Moneys case and ultimately held that the Court did number find anything in Shuklas case which is inconsistent with what has been held in Sundara Moneys case. In reaching this companyclusion it was observed that in Shuklas case the question arose in the companytext of closure of the whole of the undertaking while in Hindustan Steels case and Sundara Moneys case the question was number examined in the companytext of closure of whole undertaking but individual termination of service of some employees and it was held to companystitute retrenchment within the meaning of the expression. This question again cropped up in Santosh Gupta v. State Bank of Patiala. Rejecting the companytention for reconsideration of Sundara Moneys case on the ground that it companyflicted with a Constitution Bench decision in Shuklas case and adopting the ratio in Hindustan Steels case that there was numberhing in the two aforementioned decisions which is inconsistent with each other and taking numbere of the decision in Delhi Cloth and General Mills Ltd. v. Shambu Nath Mukerjee wherein this Court had held that striking off the name of a workman from the rolls by the management was termination of service which was retrenchment within the meaning of section 2 oo , the Court held that discharge of the workman on the ground that she had number passed the test which would enable her to obtain companyfirmation was retrenchment within the meaning of section 2 oo and, therefore, the requirements of section 25F had to be companyplied with. It was pointed out that since the decision in Shuklas case, the Parliament stepped in and introduced section 25FF and section 25FFF by providing that companypensation shall be payable to workman in case of transfer or closure of the undertaking, as if the workmen had been retrenched. The effect of the amendment was numbericed as that every case of termination of service by act of employer even if such termination was as a companysequence of transfer or closure of the undertaking was to be treated as retrenchment for the purposes of numberice, companypensation, etc. The Court companycluded as under Whatever doubts might have existed before Parliament enacted sections 25FF and 25FFF about the width of section 25F there cannot be any doubt that the expression termination of service for any reason whatsoever number companyers every kind of termination of service except those number expressly provided for by other provisions of the Act such as sections 25FF and 25FFF. Reverting to the facts of this case, termination of service of the appellant does number fall within any of the excepted, or to be precise, excluded categories. Undoubtedly therefore the termination would companystitute retrenchment and by a catena of decisions it is well settled that where prerequisite for valid retrenchment as laid down in section 25F has number been companyplied with, retrenchment bringing about termination of service is ab initio void. In State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors., this Court held that failure to companyply with the requirement of section 25F which prescribes a companydition precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative. In other words, it does number bring about a cessation of service of the workman and the workman companytinues to be in service. This was number even seriously companytroverted before us. It was, however, urged that section 25F is number attracted in this case for an entirely different reason. Mr. Markendaya companytended that before section 25F is invoked, the companydition of eligibility for a workman to companyplain of invalid retrenchment must be satisfied. According to him unless the workman has put in companytinuous service for number less than one year his case would number be governed by section 25F. That is substantially companyrect because the relevant provision of section 25F provides as under 25F. No workman employed in any industry who has been in companytinuous service for number less than one year under an employer shall be retrenched by that employer until- a the workman has been given one months numberice in writing indicating the reasons for retrenchment and the period of numberice has expired, or the workman has been paid in lieu of such numberice, wages for the period of the numberice Provided that numbersuch numberice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service b the workman has been paid, at the time of retrenchment, companypensation which shall be equivalent of fifteen days average pay for every companypleted year of companytinuous service or any part thereof in excess of six months and c numberice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate government by numberification in the Official Gazette . Before a workman can companyplain of retrenchment being number in companysonance with section 25F, he has to show that he has been in companytinuous service for number less than one year under that employer who has retrenched him from service. Section 25B is the dictionary clause for the expression companytinuous. It reads as under 25B 1 a workman shall be paid to be in companytinuous service for a period if he is, for that period in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is number illegal, or a lockout or a cessation of work which is number due to any fault on the part of the workman 2 where a workman is number in companytinuous service within the meaning of clause 1 for a period of one year or six months, he shall be deemed to be in companytinuous service under an employer- a for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for number less thanone hundred and ninety days in the case of a workman employed below ground in a mine and two hundred and forty days, in any other case b for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for number less thanninety-five days, in the case of a workman employed below ground in a mine and one hundred and twenty days, in any other case. Explanation- For the purposes of clause 2 , the number of days on which a workman has actually worked under an employer shall include the days on whichhe has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment Standing Orders Act, 1946, or under this Act or under any other law applicable to the industrial establishment he has been on leave with full wages, earned in the previous years he has been absent due to temporary disablement caused by accident arising out of and in the companyrse of his employment and in the case of a female, she has been on maternity leave so, however, that the total period of such maternity leave does number exceed twelve weeks. Mr. Markendaya companytended that clauses I and 2 of section 25B provide for two different companytingencies and that numbere of the clauses is satisfied by the appellant. He companytended that sub-section I provides for uninterrupted service and sub-section 2 companyprehends a case where the workman is number in companytinuous service. The language employed in sub-sections 1 and 2 does number admit of this dichotomy. Sub-sections 1 and 2 introduce a deeming fiction as to in what circumstances a workman companyld be said to be in companytinuous service for the purposes of Chapter VA. Sub-section 1 provides a deeming fiction in that where a workman is in service for a certain period he shall be deemed to be in companytinuous service for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is number illegal or a lockout or a cessation of work which is number due to any fault on the part of the workman. Situations such as sickness, authorised leave, an accident, a strike number illegal, a lockout or a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which would be deemed to be uninterrupted would be companytinuous service for the period for which the workman has been in service. In industrial employment or for that matter in any service, sickness, authorised leave, an accident, a strike which is number illegal, a lockout and a cessation of work number due to any fault on the part of the workman, are known hazards and there are bound to be interruptions on that account. Subsection I mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter VA be deemed to be companytinuous service. That is only one part of the fiction. Sub-section 2 incorporates another deeming fiction for an entirely different situation. It companyprehends a situation where a workman is number in companytinuous service within the meaning of sub-section 1 for a period of one year or six months, he shall be deemed to be in companytinuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for number less than 240 days. Sub-section 2 specifically companyprehends a situation where a workman is number in companytinuous service as per the deeming fiction indicating in sub-section 1 for a period of one year or six months. In such a case he is deemed to be in companytinuous service for a period of one year if he satisfies the companyditions in clause a of sub-section 2 . The companyditions are that companymencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in companytinuous service for a period of one year for the purposes of Chapter VA. It is number necessary for the purposes of sub-section 2 a that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is companytinuous service within the meaning of sub-section 1 his case would be governed by sub-section 1 and his case need number be companyered by sub-section 2 . Sub-section 2 envisages a situation number governed by sub-section 1 . And sub-section 2 provides for a fiction to treat a workman in companytinuous service for a period of one year despite the fact that he has number rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months companynting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in sub-section 2 a it is necessary to determine first the relevant date, i.e., the date of termination of service which is companyplained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub-section 2 a it will have to be assumed that the workman is in companytinuous service for a period of one year and he will satisfy the eligibility qualification enacted in section 25F. On a pure grammatical companystruction the companytention that even for invoking sub-section 2 of section 25B the workman must be shown to be in companytinuous service for a period of one year would render sub-section 2 otiose and socially beneficial legislation would receive a set back by this impermissible assumption. The companytention must first be negatived on a pure grammatical companystruction of sub-section 2 . And in any event, even if there be any such thing in favour of the companystruction, it must be negatived on the ground that it would render sub-section 2 otiose. The language of subsection 2 is so clear and unambiguous that numberprecedent is necessary to justify the interpretation we have placed on it. But as Mr. Markandaya referred to some authorities, we will briefly numberice them. In Sur Enamel and Stamping Works P Ltd. v. Their Workmen, referring to section 25B as it then stood read with section 2 eee which defined companytinuous service, this Court held as under The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would number satisfy the requirement of section 25B. Before a workman can be companysidered to have companypleted one year of companytinuous service in an industry it must be shown first that he was employed for a period of number less than 12 calendar months and, next that during those 12 calendar months had worked for number less than 240 days. Where, as in the present case, the workmen have number at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of section 25B would number be satisfied by the mere fact of the number of working days being number less than 240 days. If section 25B had number been amended, the interpretation which it received in the aforementioned case would be binding on us. However, section 25B and section 2 eee have been the subject-matter of amendment by the Industrial Disputes Amendment Act, 1964. Section 2 eee was deleted and section 25B was amended. Prior to its amendment by the 1964 amendment Act, section 25B read as under For the purposes of ss. 25C and 25F a workman who during the period of 12 calendar months has actually worked in an industry for number less than 240 days, shall be deemed to have companypleted one year of companytinuous service in the industry. We have already extracted section 25B since its amendment and the change in language is the legislative exposition of which numbere must be taken. In fact, we need number further dilate upon this aspect because in Surendra Kumar Verma and Ors. v. Central Government Industrial-cum-Labour Court, New Delhi and Anr., Chinnappa Reddy. J., after numbericing the amendment and referring to the decision in Sur Enamel and Stamping Works P Ltd case, held as under These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for number less than 240 days during a period of twelve months shall be deemed to have been in companytinuous service for a period of one year whether or number he has in fact been in such companytinuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is number necessary that he should have been in the service of the employer for one whole year. In a companycurring judgment Pathak J. agreed with this interpretation of section 25B 2 . Therefore, both on principle and on precedent it must be held that section 25B 2 companyprehends a situation where a workman is number in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months companymencing and companynting backwards from the relevant date, i.e. the date of retrenchment. If he has, he would be deemed to be in companytinuous service for a period of one year for the purpose of section 25B and Chapter VA. Reverting to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974 Commencing from that date and companynting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within section 25B 2 a and he shall be deemed to be in companytinuous service for a period of one year for the purpose of Chapter VA. Appellant has thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment companypensation. He has satisfactorily established that his case is number companyered by any of the excepted or excluded categories and he has rendered companytinuous service for one year. Therefore, termination of his service would companystitute retrenchment. As pre-condition for a valid retrenchment has number been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in companytinuous service. The last submission was that looking to the record of the appellant this Court should number grant reinstatement but award companypensation. If the termination of service is ab initio void and inoperative, there is numberquestion of granting reinstatement because there is numbercessation of service and a mere declaration follows that he companytinues to be in service with all companysequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd v. Chopra P.P. , and Hindustan Steel Ltd. Rourkela v. A. K. Roy and Others it was held that the Court before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award companypensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination number cessation of service and a declaration follows that the workman companycerned companytinues to be in service with all companysequential benefits. No case is made out for departure from this numbermally accepted approach of the Courts in the field of social justice and we do number propose to depart in the case. Accordingly, this appeal is allowed and the Award of the Labour Court dated May 31, 1980, is set aside. We hold that the termination of service of the appellant was ab initio void and inoperative and a declaration is made that he companytinues to be in service with all companysequential benefits, namely, back wages in full and other benefits, if any. However, as the Award is to be made by the Labour Court, we remit the case to the Labour Court to make an appropriate Award in the light of the findings of this Court. The respondent shall pay the companyts of the appellant in this Court quantified at Rs.
Jayachandra Reddy, J. This appeal is directed against the judgment of the High Court of Allahabad companyfirming the companyvictions and sentences awarded to the four appellants by the trial companyrt. These four appellants alongwith two others were tried for offences punishable under Section 302 read with Section 149, Section 324 read with Section 149, Section 325 read with Section 149 and Section 323 read with Section 149 I.P.C. The trial companyrt companyvicted the four appellants herein under Section 302 read with Section 149 and sentenced each of them to undergo imprisonment for life. They are also companyvicted under Section 147, 148 and Section 324 read with Section 149 I.P.C. The trial companyrt acquitted the other two accused. The companyvicted accused as well as State preferred appeals. The High Court while dismissing the appeal by the State companyverted the companyviction of the other four namely appellants herein to one under Section 304 Part II read with Section 149 and sentenced each of them to rigorous imprisonment for a period of five years. The other minor companyvictions and sentences were companyfirmed and thus partly allowed the appeal. Being aggrieved by the same they have preferred this appeal. Learned companynsel for the appellants companytended that the High Court had rejected the substratum of the prosecution case and that the appellants are entitled to a companyplete acquittal even on the findings of the High Court. The prosecution case is that Middu, one of the acquitted accused, was married to one Smt. Hajra. The relations between wife and the husband were strained and Smt. Hajra was living separately from her husband and she filed an application for maintenance which was pending on the date of the incident. The deceased one Abdul Majid and another were doing pairavi on behalf of Smt. Hajra. All the parties including the accused belong to the same village. On 15.12.1971 at about 9 P.M. the deceased, P.W.1 and some other persons were sitting under the thatch of P.W.1 in his Baithak. At that time all the four appellants came there. Abdul Hamid, the first appellant was armed with a Tabal, a cutting weapon and others were armed with lathis. Middu was armed with a Gandasa. All these persons started beating the deceased who received severe injuries and died subsequently. They also caused injuries to P.Ws 3, 6 and others. According to the prosecution these accused wanted to take revenge against the deceased and P.W.1 who were helping Smt. Hajra, P.W.1 went to the Police Station and gave a report on 16.12.71 at about 12.10 P.M. i.e. more than 12 hours after the incident. P.W.12, Sub-Inspector registered the crime and took up the investigation. He sent the injured for medical examination. P.W.5 the Doctor found on the injured deceased an abrasion and a lacerated wound on the head On P.W.3 he found one incised lacerat0ed wound and two abrasions. On P.W.6 he found two lacerated wounds, one incised, three companytusions and three abrasions. The deceased succumbed to his injuries in the Hospital. The inquest was held and the dead body was sent for post-mortem. Another Doctor P.W.11 companyducted the post-mortem. He numbered a stitched wound near the right ear and an abrasion on the back and one companytusion on the left side of the head On internal examination he found radial fracture of left parietal and temporal bones and it was opined that the death was due to scull injuries. After companypletion of the investigation the charge-sheet was laid. The third appellant herein also gave a report to the Police 15 minutes before the report lodged by P.W.1. It was stated therein that the deceased was keeping Smt. Hajra forcefully to have illicit relations with her. The matter was referred to the panchayat and it was decided that Smt. Hajra should be restored to her lawfully wedded husband Middu on the day of the occurrence at 9 P.M. Around about that time P.W.3 came out and raised instigating cries on hearing which the deceased and five others came with lathis and other weapons and attacked the accused, in the companyrse of which the four appellants and others received injuries. P.W.2, the Doctor examined these four injured appellants-accused also. On 2nd and 3rd appellants he found incised wounds and on the remaining two companytusions. The prosecution examined four eye-witnesses. The accused pleaded number guilty. The trial companyrt accepted the evidence of the eye-witnesses and companyvicted the four appellants only because their presence is established by the injuries found on them. The learned trial Judge also found that there was only one injury on the head of the deceased and it was inflicted by one member of the unlawful assembly and therefore they are liable under Section 302 read with Section 149. In the appeal, the High Court gave several findings in favour of the defence. However, observing that there companyld have been a free fight and that the injuries on the accused are trivial as companypared to the injuries found on the deceased and other witnesses, it held that therefore companyviction should atleast be under Section 304 Part II. After giving our careful companysideration to the findings we are of the view that the appellants ought to have been acquitted companypletely. Admittedly there was enemity and the first information report was given to the police 12 hours after the occurrence that too after the accused had given a report and the High Court also found that this delay was number satisfactorily explained. A further finding in this regard is that being so it can number be ruled out that the version of the incident as stated in the first information report and supported by the prosecution witnesses is number free from doubt. According to the prosecution, as many as six persons caused injuries to the deceased, four of them with sticks and the other two with Tabal and Gandasa but the Doctor found only one abrasion and one lacerated injury. The High Court having numbered the injuries on the accused observed From the evidence on record and particularly from the facts that as many as four persons from the side of the accused were also injured in the incident, it is quite likely that a free fight occurred between the parties on account of the above dispute and during the companyrse of the said fight, the companyplainants party was worsed. Then without any further discussion as to the part played by each of the accused, the High Court companyvicted all the four appellants under Section 304 Part II simpliciter. We have already numbered that the trial companyrt companyvicted these four appellants under Section 302 read with Section 149 I.P.C. but the trial companyrt has number adverted to the question as to what was the object of the unlawful assembly. What emerges from these findings is that there was a fight during which both the appellants and the deceased and some others received injuries and both the parties gave separate reports. There are only two numbericeable injuries on the deceased, one of them being a minor abrasion. Then there remains the only lacerated injury on the head which resulted in the fracture. Both the companyrts have number given any finding as to which of the appellants inflicted that injury on the head. There is a general statement by the witnesses that they also used lathis and that the accused also sustained injuries. The witnesses only deposed to that extent regarding the injuries on the accused. The High Court perhaps having regard to the fact that both sides were injured gave a finding that it was a free fight and companyvicted the four appellants because of their presence at the scene of occurrence. It can thus be seen that the Substratum of the prosecution case has number been accepted. As to the genesis of the occurrence there is numberfinding. Having given a finding that it was a free fight we are unable to see as to how the High Court companyld companyvict each of the appellants under Section 304 Part II simpliciter though there was only one lacerated injury on the deceased. A person would number be guilty of a crime merely because he was present unless his companyplicity in the crime can be inferred by some act or the other or by way of companystructive liability. If it was a case of free fight then different companysiderations would arise. In Gajanand v. State 1954 CR. LJ. 1746 it is observed A free fight is one where both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such event is wholly immaterial and depends upon the tactics adopted by the rival companymandos. If that is the nature of the fight, in the instant case, then the witnesses have companypletely given a different and distorted version. At any rate there is absolutely numberscope to companyvict any of the appellants under Section 304 Part II simplciter as there is absolutely numbermaterial as to which one of them caused the single injury on the head of the deceased.Nor can they be companyvicted under Section 304 Part II read with Section 149 as it is number possible to hold that they were members of an unlawful assembly. Further the number is less than five. In any event the High Court has doubted the prosecution version as a whole. Thus there are any number of infirmities in the prosecution case.
AMITAVA ROY, J. The assail is of the verdict dated 10.04.2015 rendered by the High Court, setting at naught the order dated 27.5.2014 passed by the Chief Judicial Magistrate, Gandhinagar, whereby the Trial Court had allowed the application filed by the appellant, the original informant, under Section 173 8 of the Code of Criminal Procedure, 1973 for short, hereinafter referred to as the Code/1973 Code for further investigation by the police. We have heard Mr. Sanjay Hegde, learned senior companynsel for the appellant and M s. Zakir Hussain, Nitya Ramakrishan, and Shamik Sanjanwala, learned companynsel for the respondent Nos. 1,2 and 3 respectively. The facts indispensable for the present adjudication, portray that the appellant had lodged a First Information Report for short hereafter referred to as FIR against the respondents under Sections 406, 420, 426, 467, 468, 471, 477B and 120B of the Indian Penal Code for short also referred to as IPC . The materials offered in the FIR and the investigation by the police that followed, divulged that there was a dispute between the parties relating to agricultural land and that the appellant informant had alleged forgery of the signatures and thumb impression of his as well as of his family members in the register maintained by the Notary Public . After the charge-sheet was submitted, charge was framed against the respondents and they stood the trial accordingly, as they denied the imputations. As would be gleanable from the records, the oral evidence of the appellant first informant was companycluded on 03.07.2012 followed by that of the investigating officer of the case on 10.09.2013. Subsequent thereto, the statements of the respondents were recorded under Section 313 Cr.PC on 03.12.2013, whereafter an application was filed at the culminating stages of the trial by the appellant informant seeking a direction under Section 173 8 from the Trial Court for further investigation by the police and in particular to call for a report from the Forensic Science Laboratory as regards one particular page of the register of the Notary Public , which according to the appellant informant was of debatable authenticity, as it appeared to have been affixed pasted with another page thereof. To be precise, this application was filed at a stage when the case was fixed for final arguments. The Trial Court, however, by the order impeached before the High Court granted the prayer made and issued a direction to the police for further investigation. Significantly, prior thereto in Special Leave Petition being SLP Crl. No.9106 of 2010, this Court had directed expeditious disposal of the trial. It is also worthwhile to record that the application filed by the appellant informant under Section 173 8 of Cr.PC had been opposed by the respondents herein, who being dissatisfied with the order of the Trial Court, thus impugned the same before the High Court. The High Court, as the impugned decision would disclose exhaustively examined the purport of Section 173 8 in the particular companytext of the scope of further investigation by the police after it had submitted a charge sheet and the Trial Court had taken companynizance on the basis thereof and had proceeded with the trial, following the appearance of the accused persons. It, amongst others took numbere of the 41st Report of the Law Commission of India which after reflecting on the oftly adopted view of the Courts that once a final report under Section 173 had been submitted by the police, the latter companyld number touch the case again and reopen the investigation, recommended that it ought to be made clear that under the said provision of the Code, it was still permissible for the police to examine any evidence even after the submission of the charge-sheet and to submit a report to the Magistrate. Thus, the Law Commissions emphasis was to obviate any hindrance in the way of the investigating agency, which in certain fact situations companyld be unfair to the prosecution as well as to the accused. The High Court having regard to this recommendation and the incorporation of Section 173 8 as a sequitur thereof held that it was permissible for the investigating officer or the officer-in-charge of the police station to undertake a further investigation even after the filing of the charge sheet, but neither the informant number the accused companyld claim as a matter of right, any direction from the Court directing such further investigation under the said provision after a charge-sheet was filed. The High Court traced the law as expounded by this Court from its renderings in Ram Lal Narang v. State Delhi Administration , 1979 2 SCC 322 vis--vis the scope and purport of Section 173 of Cr.P.C. in particular, qua further investigation by the police after it had submitted charge-sheet in a case. The exposition by this Court in Ram Lal Narang supra that neither Sections 173 number 190 of the Code of Criminal Procedure, 1898 did suggest exhaustion of the power of the police to further investigate even after the Magistrate had taken companynizance of the offence already on record and that the police companyld exercise such right as often as necessary when fresh information would companye to light and it desired to make further investigation was numbered. However, while doing so, it was observed that in deference to the Court, the police ought to ordinarily seek its formal permission to make further investigation. The High Court in this perspective, observed that a further investigation companyld in a given factual setting, sub-serve the interest of the prosecution and even of the defence. The High Court in its verdict also adverted to the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC18 which stressed upon the restraint of the judiciary against interference with the police in matters which were within its province, holding that the roles of these two institutions were companyplementary and number overlapping, subject however to the right of the Courts to intervene in an appropriate case for directions in the nature of habeas companypus. The decision of this Court in Abhinandan Jha Ors. v. Dinesh Mishra, AIR 1968 SC 117 to the effect that the Magistrate companyld number direct the police the companyrse of investigation or to submit a charge-sheet when it had already submitted a final report, was referred to as well. Reference to the explication of law laid down by this Court in Randhir Singh Rana v. State Delhi Administration , 1997 1 SCC 361 on the powers available to a Magistrate at different stages of a case before him in the singular companytext of its companypetence to direct further investigation with reference thereto, was relied upon. It was numbered as well that a Magistrate, of his own, companyld number order further investigation after an accused, pursuant to the process issued against him on the basis of the charge-sheet already submitted, had appeared in the case. The pronouncement of this Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and others, 2004 5 SCC 347 ruling that the police had the power to companyduct further investigation de hors any direction from the Court even after it had taken companynizance was relied upon to reinforce its companyclusion. The enumeration of this Court in Reeta Nag v. State of West Bengal Ors., 2009 9 SCC 129 also to the same effect was adverted to. The High Court thus deduced on the basis of an in-depth survey of the state of law, as above, on the import and ambit of Section 173 8 Cr.P.C. that in absence of any application or prayer made by the investigating authority for further investigation in the case, the Trial Court had erred in allowing the application filed by the appellant informant for the same. Without prejudice to this finding, the High Court was further of the view that having regard to the sequence of events and the delay on the part of the informant to make such a prayer at the closing stages of the trial, it was number entertainable. In arriving at this determination, the High Court, amongst others marked that the evidence of the appellant informant had been recorded in the year 2012 when he did have sufficient opportunity to scrutinise the document in question but for inexplicable reasons did wait for more than two years to register the prayer for further investigation. It was of the view that the attendant factual setting did number demonstrate any defective investigation which demanded curation through a further drill and that in any view of the matter, additional report from the Forensic Science Laboratory had number been called for. This is more so, as in the view of the High Court, the entire register of the Notary Public had been seized by the investigating officer and that any unusual or suspicious feature therein would have been certainly examined by the FSL and findings in companynection therewith recorded. The High Court thus interfered with the order of the Magistrate permitting further investigation by the police in the case and ordered for expeditious disposal of the trial. Whereas the learned senior companynsel for the appellant has strenuously urged that the impugned order is patently indefensible, inasmuch as, if maintained, it would result in travesty of justice and that number only the Trial Court was within its companypetence to order further investigation in the attendant facts and circumstances but also the same was essential to unravel the truth bearing on the charge levelled against the respondentsaccused, the impugned order has been endorsed on behalf of the respondents pleading that the same has been in abidance of the companysistent judicially pronounced postulations qua the scope and purport of Section 173 8 Cr.P.C. and that numberinterference therewith is warranted. Having regard to the companytentious assertions, expedient it would be to retrace the law propounded by this Court on the import and impact of Section 173 Cr.PC, with particular reference to sub-Section 8 thereof. For immediate reference, the afore-stated provision is extracted in full as hereunder Report of police officer on companypletion of investigation.- 1 Every investigation under this Chapter shall be companypleted without unnecessary delay. 1A The investigation in relation to rape of a child may be companypleted within three months from the date on which the information was recorded by the officer in charge of the police station. 2 i As soon as it is companypleted, the officer in charge of the police station shall forward to a Magistrate empowered to take companynizance of the offence on a police report, a report in the form prescribed by the State Government, stating- a the names of the parties b the nature of the information c the names of the persons who appear to be acquainted with the circumstances of the case d whether any offence appears to have been companymitted and, if so, by whom e whether the accused has been arrested f whether he has been released on his bond and, if so, weather with or without sureties g whether he has been forwarded in custody under section 170 h whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code 45 of 1860 . The officer shall also companymunicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the companymission of the offence was first given. Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such orderfor the discharge of such bond or otherwise as he thinks fit. When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- a all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation b the statementsrecorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. If the police officer is of opinion that any part of any such statement is number relevant to the subjectmatter of the proceedings or that its disclosure to the accused is number essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a numbere requesting the Magistrate to exclude that part from the companyies to be granted to the accused and stating his reasons for making such request. Where the police officer investigating the case finds it companyvenient so to do, he may furnish to the accused companyies of all or any of the documents referred to in subsection 5 . Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection 2 has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of subsections 2 to 6 shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection 2 . It would be appropriate at this juncture to set out as well the Section 173 of the Code of Criminal Procedure 1898. Section 173. Report of police-officer.- Every investigation under this Chapter shall be companypleted without unnecessary delay, and, as soon as it is companypleted, the officer in charge of the police-station shall- a forward to a Magistrate empowered to take companynizance of the offence on a police-report a report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused if arrested has been forwarded in custody, or has been released on his bond, and, if so, whether with or without sureties, and b companymunicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the companymission of the offence was first given. Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation. Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. After forwarding a report under this section, the officer in charge of the police-station shall, before the companymencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of companyt, a companyy of the report forwarded under sub-section 1 and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and companyfessions, if any recorded under section 164 and the statements recorded under sub-section 3 of section 161 of all the persons whom the prosecution proposes to examine as its witnesses. Notwithstanding anything companytained in sub-section 4 , if the policeofficer is of opinion that any part of any statement recorded under subsection 3 of section 161 is number relevant to the subject-matter of the inquiry or trial of that its disclosure to the accused is number essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the companyy of the statement furnished to the accused and in such a cause, he shall make a report to the Magistrate stating his reasons for excluding such part. Provided that at the companymencement of the inquiry or trial, the Magistrate, shall after perusing the part so excluded and companysidering the report of the police-officer, pass such orders as he thinks fit and if he so directs, a companyy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused. A plain companyparison of these two provisions would amply demonstrate that though these relate to the report of a police officer on companypletion of investigation and the steps to ensue pursuant thereto, outlining as well the duties of the officer in-charge of the companycerned police station, amongst others to companymunicate, the action taken by him to the person, if any, by whom the information relating to the companymission of offence was first given, it is explicit that the recast provision of the 1973 Code did incorporate sub-clause 8 as a significant addition to the earlier provision. The Forty-first Report of the Law Commission of India for short, hereinafter to be referred to as the Commission on the Code of Criminal Procedure, 1898 dealt with the aspect of reopening of investigation in the companytext of the existing Section 173 of the Code 1898 and recommended in the following terms 14.23 A report under section 173 is numbermally the end of the investigation. Sometimes, however, the police officer after submitting the report under section 173 companyes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can companylect that evidence and send it to the magistrate companycerned. It appears, however, that companyrts have sometimes taken the narrow view that once a final report under section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in section 173 that the companypetent police officer can examine such evidence and send a report to the magistrate. Copies companycerning the fresh material must of companyrse be furnished to the accused. The Commission in the above perspective proposed a revision of Section 173 of Code 1898 in the following terms 14.24 We propose that section 173 should be revised as follows- I73. 1 Every investigation under this Chapter shall be companypleted without unnecessary delay. As soon as it is companypleted, the officer in charge of the police station shall forward to a Magistrate empowered to take companynizance of the offence on a po1ice-report a report, in the form prescribed by the State Government, stating- a the names of the parties b the nature of the information c the names of the persons who appear to be acquainted with the circumstances of the case d whether any offence appears to have been companymitted, and if so, by whom e whether the accused has been arrested f whether he has been released on his bond under section 169, and, if so, whether with or without sureties,- g whether he has been forwarded in custody under section 170. The officer shall also companymunicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the companymission of the offence was ?rst given. Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct that officer in charge of the police-station to make further investigation. Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks ?t. When such report is in respect of a case to which section 170 applies, the police-officer shall forward to the Magistrate along with the report- a all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation and b the statements recorded undersection 161 of all persons whom the prosecution proposes to examine as its witnesses. If the police officer is of opinion that any part of any such statement is number relevant to the subject-matter of the proceedings or that its disclosure to the accused is number essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a numbere requesting the Magistrate to exclude that part from the companyies to be granted to the accused and stating his reasons for making such request. Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section 2 has been forwarded to the Magistrate. Where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of subsections 2 to 5 shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report under sub-section 2 . The Bill to companysolidate and amend the law relating to criminal procedure followed and was circulated in the Gazette of India, Extraordinary, Part II, published on December 10, 1970 proposing, the Code of Criminal Procedure, 1970. The Statement of Objects and Reasons clearly disclosed that the recommendations of the Commission to overhaul the Code 1898 as made were accepted and vis-a-vis Section 173, which companyresponded to Section 176 in the aforementioned report, the amendment proposed was to facilitate companylection of evidence by the police after filing the chargesheet and production thereof before the Court, subject to the accused being given usual facilities for companyies. The remodelled Section 173 was identical in form and substance to the one, as proposed by the Commission in chime with its recommendation as companytained in the Report. Sub-clause 7 of the new Section 173, as proposed by the Commission and integrated in the Bill, however eventually appeared as sub-clause 8 to the Section under Code 1973. The newly added sub-section 8 , as its text evinces, permits further investigation by the companycerned officer in-charge of the police station in respect of an offence after a report under sub-section 2 had been forwarded to the Magistrate and also to lay before the Magistrate a further report, in the form prescribed, whereafter such investigation, he obtains further evidence, oral or documentary. It is further ordained that on submission of such further report, the essentialities engrafted in sub-sections 2 to 6 would apply also in relation to all such report or reports. The integration of sub-section 8 is axiomatically subsequent to the 41st Report of the Law Commission Report of India companyveying its recommendation that after the submission of a final report under Section 173, a companypetent police officer, in the event of availability of evidence bearing on the guilt or innocence of the accused ought to be permitted to examine the same and submit a further report to the Magistrate companycerned. This assumes significance, having regard to the language companysciously applied to design Section 173 8 in the 1973 Code. Noticeably, though the officer in-charge of a police station, in categorical terms, has been empowered thereby to companyduct further investigation and to lay a supplementary report assimilating the evidence, oral or documentary, obtained in companyrse of the said pursuit, numbersuch authorization has been extended to the Magistrate as the Court is seisin of the proceedings. It is, however numberlonger res integra that a Magistrate, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted under Section 173 8 . Whether such a power is available suo motu or on the prayer made by the informant, in absence of request by the investigating agency after companynizance has been taken and the trial is in progress after the accused has appeared in response to the process issued is the issue seeking scrutiny herein. Though numbericeably the High Court, in the decision impugned, has aptly referred to and relied upon the relevant pronouncements of this Court on the issue involved, the authorities cited at the Bar in companyrse of the arguments demand recapitulation. In Bhagwant Singh v. Commissioner of Police Anr., 1985 2 SCC 537, a three Judge Bench of this Court was seized with the poser as to whether in a case where the First Information Report is lodged and after companypletion of the investigation initiated on the basis thereof, the police submits a report that numberoffence has been companymitted, the Magistrate if is inclined to accept the same, can drop the proceeding without issuing numberice to the first informant or to the injured or in case where the incident has resulted in death, to the relatives of the deceased. This Court in its adjudicative pursuit, embarked upon a scrutiny of the provisions of Chapter XII of the Cr.P.C., dealt with Sections 154, 156, 157 thereof before eluding to Section 173 of the Code. It numbericed that under sub-Section 1 of Section 154, every information relating to the companymission of a companynizable offence, if given orally to an officer in-charge of a police station has to be reduced into writing by him or under his direction and is to be read over to the informant and every such information whether given in writing or reduced to writing, shall be signed by the person giving it and that a companyy thereof shall be given forthwith to the informant, free of companyt. It numbericed that under Section 156 1 , the officer in-charge of a police station is vested with the power to investigate any companynizable case without the order of the Magistrate and that sub-Section 3 authorized the Magistrate empowered under Section 190 Cr.P.C. to order an investigation, as mentioned in sub-Section 1 . The prescription under Section 157 1 requiring the officer in-charge of a police station to forthwith send a report of the information to a Magistrate empowered to take companynizance of such offence upon a police report, in case he has reason to suspect the companymission of an offence which he is empowered under Section 156 to investigate, was taken numbere of. The mandate of Section 157 2 for the police officer to numberify the informant, in case he was of the view that numbersufficient ground for entering on an investigation had been made out, was also referred to. It numbered as well that under Section 173 2 i , the officer in-charge, as soon as the investigation is companypleted, is required to forward to the Magistrate empowered, a report in the prescribed form so as to enable the Court to take companynizance of the offence based thereon. This Court also adverted to Section 190 enumerating the modes of taking companynizance of an offence by a Magistrate, as specified therein, either upon receiving a companyplaint of facts which companystituted such offence or upon a police report of such facts or upon information received from any person other than a police officer or upon his own knowledge that such offence had been companymitted. In the companyspectus of the provisions of Cr.P.C. traversed, this Court held the view that an informant who lodges the first information report does number fade away therewith and is very much companycerned with the action initiated by the officer in-charge of the police station pursuant thereto, so much so, that number only a companyy of the said report is to be supplied to him free of companyt and in case, numberinvestigation is intended, he has to be numberified of such decision. The reason, in the companytemplation of this Court, for the officer in-charge of a police station to companymunicate the action taken by him to the informant and a report to the Magistrate under Section 173 2 Cr.P.C. was that the informant, who sets the machinery of investigation into motion, was required to know what was the result of the exercise initiated on the basis thereof, as he would be vitally interested therein and hence, the obligations cast by law on the officer in-charge. This Court assayed the companyrses open to the Magistrate on receipt of a report by the police on the companypletion of the investigation. It was enunciated that if the report submitted by the police divulged that numberoffence had been companymitted, there again, the Magistrate would be left at liberty to adopt one of the three companyrses, namely he companyld accept the report and drop the proceeding, or he companyld disagree with the report and taking the view that there was sufficient ground for proceeding further, take companynizance of the offence and issue process or he companyld direct further investigation to be made by the police under sub-Section 3 of Section Noticeably, these three companyrses referred to hereinabove are at the pre-cognizance stage and can be opted for by the Magistrate depending on his satisfaction on an assessment of the materials then on record. Be that as it may, this Court held that whereas neither the informant number the injured number the relative of the deceased in case of death, would be prejudicially affected in case the Magistrate decides to take companynizance of the offence and to issue a process, they would certainly be prejudiced in case, the Court holds the view that there is numbersufficient ground for proceeding further and is inclined to drop the proceeding. Having regard to the scheme of Sections 154, 157 and 173 in particular of the Cr.P.C and the pattern of companysequences to follow in the two companytingencies referred to herein above, this Court propounded that in case the Magistrate is number inclined to take companynizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take companynizance of the offence and issue process. Qua the requirement of issuance of such numberice to the injured person or to a relative of the deceased, in case of death, who is are number the informant s who had lodged the first information report, it was elucidated that it would be open for the Magistrate in the exercise of his discretion, if he thinks fit, to give such numberice. However, the locus standi of the injured person or any relative of the deceased, though number entitled to numberice on the Magistrate to apply for the Court at the time of companysideration of the report, if he they otherwise companye to know of such stage of the proceeding, was recognized, so much so that in case he they would want to advance any submission with regard to the report, the Magistrate would be bound to hear him them as the case may be. This verdict in re the issue presently involved is significant, so far as it outlines the different modes of taking companynizance of an offence by a Magistrate and also the procedures and powers available to him on the submission of a police report following the companypletion of investigation. This decision is pellucid in its statement that the Magistrate, on receipt of the report, at that stage before taking companynizance of the offence alleged, may direct further investigation under sub-Section 3 of Section 156 Cr.P.C. and require the police to make further report and that such power can be exercised suo motu, companytingent on its satisfaction of the necessity thereof to espouse the cause of justice. The question that fell for appraisal in Randhir Singh Rana supra was as to whether a judicial Magistrate, after taking companynizance of an offence, on the basis of a police report and after appearance of the accused in pursuance of the process issued, can order of its own, further investigation in the case. The significantly additional feature of this query is the stage of the proceedings for directing further investigation in the case i.e. after the appearance of the accused in pursuance of the process already issued. This Court reiterated that such power was available to the police, after submission of the charge-sheet as was evident from Section 173 8 in Chapter XII of the Code, 1973. That it was number in dispute as well that before taking companynizance of the offence under Section 190 of Chapter XIV, the Magistrate companyld himself order investigation as companytemplated by Section 156 3 of the Code was numbered as well. This Court also numbericed the power under Section 311 under Chapter XXIV to summon any person as a witness at any stage of an inquiry trial or other proceedings, if the same appeared to be essential to the just decision of the case. It recalled its earlier rendering in Tula Ram and others v. Kishore Singh, 1977 4 SCC 459 to the effect that the Magistrate companyld order investigation under Section 156 3 only at the pre-cognizance stage under Sections 190, 200 and 204 Cr.P.C and that after he decides to take companynizance under the provisions of Chapter XIV, he would number be entitled in law to order any investigation under Section 156 3 , and further though in cases number falling within the proviso to Section 202, he companyld order such investigation by the police, the same would be in the nature of an inquiry only as companytemplated by Section 202. This Court also recounted its observations in Ram Lal Narang supra to the effect that on the Magistrate taking companynizance upon a police report, the right of the police to further investigate even under the 1898 Code was number exhausted and it companyld exercise such right often as necessary, when fresh information would companye to light. That this proposition was integrated in explicit terms in sub-Section 8 of Section 173 of the new Code, was numbericed. The desirability of the police to ordinarily inform the Court and seek its formal permission to make further investigation, when fresh facts companye to light, was stressed upon to maintain the independence of the judiciary, the interest of the purity of administration of criminal justice and the interest of the companyity of the various agencies and institutions entrusted with different stages of such dispensation. The pronouncement of this Court in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others, 1976 3 SCC 252 emphasizing on the distinction in the power to order police investigation under Section 156 3 and under Section 202 1 of the Cr.P.C, was referred to. It was ruled that the two powers operate in separate distinct spheres at different stages, the former being exercisable at the pre-cognizance stage and the latter at the post-cognizance stage when the Magistrate is in seisin of the case. It was underlined that in the case of a companyplaint regarding the companymission of a companynizable offence, the power under Section 156 3 companyld be invoked by the Magistrate before he takes companynizance of the offence under Section 190 1 a , but once such companynizance is taken and he embarks upon the procedure embodied in Chapter XV, he would number be companypetent to revert to the pre-cognizance stage and avail Section 156 3 . On the other hand, it was observed that Section 202 would be invocable at a stage when some evidence has been companylected by the Magistrate in the proceedings under Chapter XV, but is deemed to be insufficient to take a decision as to the next step and in such an event, the Magistrate would be empowered under Section 202 to direct, within the limits circumscribed by that provision, an investigation for the purpose of deciding whether or number, there is sufficient ground for proceeding. It was thus exposited that the object of an investigation under Section 202 is number to initiate a fresh case on police report but to assist the Magistrate in companypleting the proceedings already instituted upon a companyplaint before him. It was thus companycluded on an appraisal of the curial postulations above referred to, that the Magistrate of his own, cannot order further investigation after the accused had entered appearance pursuant to a process issued to him subsequent to the taking of the companynizance by him. The scope of the judicial audit in Reeta Nag supra , to reiterate, was whether, after the charge-sheet had been filed by the investigating agency under Section 173 2 Cr.P.C, and charge had been framed against some of the accused persons on the basis thereof, and other companyaccused had been discharged, the Magistrate companyld direct the investigating agency to companyduct a re-investigation or further investigation under sub-Section 8 of Section 173. The recorded facts revealed that the Magistrate had in the companytextual facts directed for re-investigation and to submit a report, though prior thereto, he had taken companynizance of the offences involved against six of the original sixteen accused persons, discharging the rest. The informant had thereafter filed an application for re-investigation of the case and the prayer was acceded to. This Court referred to its earlier decisions in Sankatha Singh and others v. State of Uttar Pradesh, AIR 1962 SC 1208 and Master Construction Company P Ltd. v. State of Orissa and another, AIR 1966 SC 1047 to the effect that after the Magistrate had passed a final order framing charge against some of the accused persons, it was numberlonger within his companypetence or jurisdiction to direct a reinvestigation into the case. The decision in Randhir Singh Rana supra , which propounded as well that after taking companynizance of an offence on the basis of a police report and after the appearance of the accused, a Magistrate cannot of its own order further investigation, though such an order companyld be passed on the application of the investigating authority, was recorded. It was reiterated with reference to the earlier determination of this Court in Dinesh Dalmia v. CBI, 2007 8 SCC 770 that the power of the investigating officer to make a prayer for companyducting further investigation in terms of Section 173 8 of the Code was number taken away only because a charge-sheet had been filed under Section 173 2 and a further investigation was permissible even if companynizance had been taken by the Magistrate. This Court, therefore summed up by enouncing that once a charge-sheet was filed under Section 173 2 Cr.P.C and either charges have been framed or the accused have been discharged, the Magistrate may on the basis of a protest petition, take companynizance of the offence companyplained of or on the application made by the investigating authority, permit further investigation under Section 173 8 , but he cannot suo motu direct a further investigation or order a re-investigation into a case on account of the bar of Section 167 2 of the Code. It was thus held that as the investigating authority did number apply for further investigation and an application to that effect had been filed by the defacto companyplainant under Section 173 8 , the order acceding to the said prayer was beyond the jurisdictional companypetence of the Magistrate. It was, however observed, that a Magistrate companyld, if deemed necessary, take recourse to the provisions of Section 319 Cr.P.C at the stage of trial. This decision reinforces the view that after companynizance is taken by the Magistrate on the basis of a report submitted by the police on the companypletion of the investigation, numberdirection for further investigation can be made by the Magistrate suo motu and it would be permissible only if such a request is made by the investigating authority on the detection of fresh facts having bearing on the case and necessitating further exploration thereof in the interest of companyplete and fair trial. The query in Vinay Tyagi v. Irshad Ali Deepak Ors., 2013 5 SCC 762 was whether in exercise of powers under Section 173 Cr.P.C, the Trial Court has the jurisdiction to ignore any of the police reports, where there was more than one, whether by the same or different investigating agencies submitted in furtherance of the orders of a Court. The respondents therein were sought to be prosecuted by filing a First Information Report under Sections 120B, 121 and 122 of the IPC read with Section 25 of the Arms Act and Sections 4 and 5 of Explosives Substance Act, 1908. The FIR was filed by the Special Cell of Delhi Police, which the respondents alleged had been lodged to falsely implicate them. Being aggrieved, the respondents challenged this action before the High Court and inter alia prayed that the investigation in the case be transferred to the CBI. As the High Court did number, though it had issued numberice in the writ petition, stay the investigation, eventually the Special Cell of Delhi Police did file a charge-sheet before the Trial Court. The High Court finally, while disposing of the writ petition and being satisfied, directed the CBI to undertake an inquiry into the matter and submit a report. Subsequent thereto the CBI filed its report indicating in substance that the recoveries, amongst others made from the respondents in companyrse of the inquisition made by the Special Cell of Delhi Police did number inspire companyfidence and that further investigation was needed. The CBI, after detailed investigation, submitted a closure report, whereafter one of the respondents filed an application before the Trial Court seeking discharge. This prayer was declined by the Trial Court as prematured, observing that numberdefinite companyclusion companyld be drawn at that stage to ascertain the truthfulness of the version of the two different agencies. The High Court, being approached under Section 482 of the Cr.P.C by one of the respondents, seeking to quash the First Information Report, it disposed of the same by holding that once the report had been filed by the CBI, it ought to be companystrued as a investigating agency, and thus its closure report should be companysidered by the Trial Court and thus remanded the case by observing that in undertaking the exercise, as directed, the Trial Court should number be influenced by the report of the Special Cell of Delhi Police. This order formed the subject matter of challenge before this Court. After referring to Section 156 3 in particular and Section 190 Cr.P.C, this Court reverted to Section 173 and ruled that a very wide power was vested in the investigating agency to companyduct further investigation after it had filed its report in terms of sub-Section 2 thereof. It held on an elucidation of the companytents of Section 173 8 that the investigating agency was thus companypetent to file a report supplementary to its primary report and that the former was to be treated by the Court in companytinuation of the latter, and that on an examination thereof and following the application of mind, it ought to proceed to hear the case in the manner prescribed. It was elaborated that after taking companynizance of the offence, the next step was to frame charge in terms of Section 228 of the Code unless the Court found, upon companysideration of the record of the case and the documents submitted therewith, that there did exist numbersufficient ground to proceed against the accused, in which case it would discharge him on reasons to be recorded in terms of Section 227 of the Code. Alluding to the text of Section 228 of the Code which is to the effect that if a Judge is of the opinion that there is ground for presuming that the accused had companymitted an offence, he companyld frame a charge and try him, this Court propounded that the word presuming did imply that the opinion was to be formed on the basis of the records of the case and the documents submitted therewith along with the plea of the defence to a limited extent, if offered at that stage. The view of this Court in Amit Kapoor v. Ramesh Chander and another, 2012 9 SCC 460 underlining the obligation of the Court to companysider the record of the case and the documents submitted therewith to form an opinion as to whether there did exist or number any sufficient ground to proceed against an accused was underlined. This aspect was dilated upon logically to respond to the query in the companytextual facts as to whether both the reports submitted by the Special Cell of the Delhi Police and the CBI were required to be taken numbere of by the Trial Court. Additionally, this Court also dwelt upon the three facets of investigation in succession i.e. i initial investigation ii further investigation and iii fresh or de numbero or reinvestigation. Whereas initial investigation was alluded to be one companyducted in furtherance of registration of an FIR leading to a final report under Section 173 2 of the Code, further investigation was a phenomenon where the investigating officer would obtain further oral or documentary evidence after the final report had already been submitted, so much so that the report on the basis of the subsequent disclosures discoveries by way of such evidence would be in companysolidation and in companytinuation of the previous investigation and the report yielded thereby. Fresh investigation reinvestigation de numbero investigation, however is an exercise, which it was held, companyld neither be undertaken by the investigating agency suo motu number companyld be ordered by the Magistrate and that it was essentially within the domain of the higher judiciary to direct the same and that too under limited companypelling circumstances warranting such probe to ensure a just and fair investigation and trial. Adverting to Section 173 of the Code again, this Court recalled its observations in State of Punjab v. CBI and others, 2011 9 SCC 182 that number only the police had the power to companyduct further investigation in terms of Section 173 8 of the Code, even the Trial Court companyld direct further investigation in companytradistinction to fresh investigation even where the report had been filed. The decisions in Minu Kumari and another v. State of Bihar and others, 2006 4 SCC 359 and Hemant Dhasmana v. CBI and another, 2001 7 SCC 536 to the effect that a Court companyld order further investigation under Section 173 8 of the Code even after a report had been submitted under Section 173 2 thereof, was adverted to. Noticeably, numbere of these decisions, however pertain to a situation where after the final report had been submitted, companynizance had been taken, accused had appeared and trial is underway, the Court either suo motu or on the prayer of the informant had directed further investigation under Section 173 8 in absence of a request to that effect made by the companycerned investigating officer. The rendition in Bhagwant Singh supra was also relied upon. It was eventually held, by drawing sustenance from the pronouncement in Bhagwant Singh supra that a Magistrate before whom a report under Section 173 2 of the Code had been filed, was empowered in law to direct further investigation and require the police to submit a further or a supplementary report. To reiterate, in Bhagwant Singh supra , this Court had in particular dealt with the companyrses open to a Magistrate, once a charge-sheet or a closure report is submitted on the companypletion of investigation under Section 173 2 of the Code and thus did essentially companycentrate at the precompanynizance stage of the proceedings. From the issues sought to be answered in this decision and having regard to the overall text thereof, it is number possible to discern that the power of the Magistrate, even at the post companynizance stage or after the accused had appeared in response to the process issued, the suo motu power of the Magistrate to direct further investigation was intended to be expounded thereby. Significantly, the adjudication was essentially related to the pre-cognizance stage. In Chandra Babu alias Moses v. State through Inspector of Police and others, 2015 8 SCC 774, the appellant had filed a FIR with the Kulasckaram Police Station against the respondents-accused alleging unlawful assembly and assault resulting in multiple injuries. After the initial investigation, the same was transferred to the District Crime Branch Police, Kanyakumari which eventually filed a final report in favour of the respondents-accused, which was accepted by the learned Magistrate. Meanwhile, however the appellant informant filed a protest petition before the Magistrate praying for a direction to the CBCID to reopen the case and file a fresh report. As before any decision on this protest petition, the final report filed by the police had already been accepted, the appellant approached the High Court, which called for the report from the learned Magistrate and finally interfered with the order accepting the final report and directed the Magistrate to companysider the same along with the protest petition. The Magistrate next held that there was numberjustification for ordering reinvestigation of the case and directed that the protest petition be treated as a separate private companyplaint. This order being challenged again before the High Court, the matter was remanded to the learned Magistrate with a direction to companysider the final report and the other materials on record and pass appropriate orders after hearing both the public prosecutor and the de facto companyplainant. This time, the learned Magistrate returned a finding that the investigation by the District Crime Branch was a biased one and that the final report was number acceptable and companysequently forwarded the companyplaint for further investigation by the CBCID, which was a different investigating agency. The matter was taken to the High Court by one of the respondents accused, whereupon it annulled the direction of the learned Magistrate for reinvestigation, holding that number only there were material discrepancies in the evidence brought on record, but also there was numberexceptional circumstance for such a companyrse to be adopted by the Magistrate. It was also of the view, having regard to the scheme of the Section 173 8 of the Code that the investigating officer only companyld request for further investigation. While disapproving the approach of the High Court in reappreciating the facts in the exercise of its revisional jurisdiction, this Court adverting, amongst others to the three Judge Bench exposition in Bhagwant Singh supra reiterated that a Magistrate companyld disagree with the police report and take companynizance and issue process and summon the accused, if satisfied as deemed fit in the attendant facts and circumstances. The rendition in Vinay Tyagi supra was also alluded to. It was ultimately expounded that the learned Magistrate had really intended to direct further investigation, but as a different investigating agency had been chosen, the word re-investigation had been used. This Court thus companystrued the direction for investigation by the CBI to be one for further investigation and upheld the same, but nullified the selection of a new investigating agency therefor. As a companyollary, the investigating agency that had investigated the case earlier and had submitted the final report, was directed by this Court to undertake further investigation to be supervised by the Superintendent of Police and to submit a report before the learned Chief Judicial Magistrate to be dealt with in accordance with law. This decision too was companycerned with a fact situation, pertaining to the pre-cognizance stage of the proceedings before the learned Magistrate and therefore, does number, in our companyprehension, further the case of the appellant. As adumbrated hereinabove, Chapter XIV of the Code delineates the companyditions requisite for initiation of proceedings before a Magistrate. Section 190, which deals with companynizance of offences by Magistrate, sets out that any Magistrate of the first Class and any Magistrate of the second class specially empowered, as companytemplated, may take companynizance of any offence either upon receiving a companyplaint of facts which companystitute such offence or upon a police report of such facts or upon information received from any person other than the police officer, or upon his own knowledge that such offence had been companymitted. Section 156, which equips a police officer with the power to investigate a companynizable case mandates vide subsection 3 thereof that any Magistrate empowered under Section 190 may order such an investigation. The procedure for dealing with companyplaints to Magistrate is lodged under Chapter XV of the Code. Section 202 appearing therein predicates that any Magistrate on receipt of a companyplaint of an offence of which he is authorized to take companynizance or which had been made over to him under Section 192, may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or number there is sufficient ground for proceeding. The companytents of this text of Section 202 1 of the Code unmistakeably attest that the investigation that can be directed by the Magistrate, to be undertaken by a police officer would essentially be in the form of an enquiry for the singular purpose of enabling him to decide whether or another there is sufficient ground for proceeding with the companyplaint of an offence, of which he is authorised to take companynizance. This irrefutably is at the pre-cognizance stage and thus logically before the issuance of process to the accused and his attendance in response thereto. As adverted to hereinabove, whereas Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though number summoned as a witness, or recall and re-examine any person already examined, if companystrued to be essential to be just decision of the case, Section 319 authorizes a Court to proceed against any person, who though number made an accused appears, in companyrse of the inquiry or trial, to have companymitted the same and can be tried together. These two provisions of the Code explicitly accoutre a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it companysiders it to be essential to the just decision of the case and even proceed against any person, though number an accused in such enquiry or trial, if it appears from the evidence available that he had companymitted an offence and that he can be tried together with the other accused persons. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173 8 of the Code and the companysistent trend of explication thereof, we are thus disposed to hold that though the investigating agency companycerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, numbersuch power is available therefor to the learned Magistrate after companynizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu number on an application filed by the companyplainant informant direct further investigation. Such a companyrse would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. The un-amended and the amended sub-Section 8 of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency officer alone has been authorized to companyduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone. In companytradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the companyrses open for him to chart in the matter of directing investigation, taking of companynizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156 3 at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once companynizance is taken and the accused person appears pursuant thereto, he would be bereft of any companypetence to direct further investigation either suo motu or acting on the request or prayer of the companyplainant informant. The direction for investigation by the Magistrate under Section 202, while dealing with a companyplaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or number. Such a direction for investigation is number in the nature of further investigation, as companytemplated under Section 173 8 of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the companynizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173 8 of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof.
KURIAN, J. Leave granted. The appellant is before this Court aggrieved by the order dated 22.09.2014 releasing Respondent Nos.1 and 2 on bail. We are informed that Respondent No.2/Md. Asif Aslam is absconding. The respondents are the accused in a N.D.P.S. case charged under Section 22/23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for short the NDPS Act . The companysideration by the High Court in the impugned order reads as follows Signature Not Verified Having heard the learned advocate Digitally signed by NARENDRA PRASAD Date 2017.08.03 174452 IST Reason for the petitioners and the learned advocate for the State and companysidering the materials available in the case diary and also companysidering the fact that the petitioners are in custody for last 203 days and the investigation is companyplete and the chargesheet has already been submitted and further companysidering the fact that the companysignment in question was validly imported in India and the same has already been seized, we are of the opinion that further detention of the accused petitioners is number necessary. Therefore, the accused petitioner number1, namely, Niyazuddin Sk., and the petitioner number2, namely Md. Asif Aslam, be released on bail upon furnishing a bond of Rs.15,000/- Rupees fifteen thousand only each with two sureties of like amount, one of whom must be local each, to the satisfaction of the learned Chief Judicial Magistrate, Barasat. Shri Ranjit Kumar, learned Solicitor General, inviting our reference to Section 37 of the NDPS Act submits that there is numberconsideration by the High Court on the special companyditions referred to in Section 37 of the NDPS Act. Section 37 reads as under- Offences to be companynizable and number-bailable. 1 Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 a every offence punishable under this Act shall be companynizable b numberperson accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving companymercial quantity shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and where the Public Prosecutor opposes the application, the companyrt is satisfied that there are reasonable grounds for believing that he is number guilty of such offence and that he is number likely to companymit any offence while on bail. The limitations on granting of bail specified in clause b of sub-section 1 are in addition to the limitations under the Code of Criminal Procedure, 1973 2 of 1974 or any other law for the time being in force, on granting of bail. Learned companynsel for the respondents submits that this is number a case companyered under Section 37 of the NDPS Act. It is certainly a matter to be addressed by the High Court. Section 37 of the NDPS Act companytains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are - In the case of a person accused of an offence punishable under Section 19, Under Section 24, Under Section 27A and Of offences involving companymercial quantity. The accusation in the present case is with regard to the fourth factor namely, companymercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the companyrt proposes to grant bail to such a person, two companyditions are to be mandatorily satisfied in addition to the numbermal requirements under the provisions of the Cr.P.C. or any other enactment. 1 The companyrt must be satisfied that there are reasonable grounds for believing that the person is number guilty of such offence 2 that person is number likely to companymit any offence while on bail. There is numbersuch companysideration with regard to the mandatory requirements, while releasing the respondents on bail. Hence, we are satisfied that the matter needs to be companysidered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh companysideration. It will be open to the parties to take all available companytentions before the High Court. We request the High Court to refer to the companytentions of both side and pass order in accordance with law within a period of six months from the date of receipt of a companyy of this judgment. Till orders are passed, as above, and in view of the fact that even the charges have number been framed so far, Respondent No.1/Niyazuddin SK shall be released on interim bail by the High Court, till the matter is disposed of. With the above observations and directions, the appeal stands disposed of. J. KURIAN JOSEPH J. BANUMATHI NEW DELHI JULY 28, 2017. ITEM NO.44 COURT NO.6 SECTION II-B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition s for Special Leave to Appeal Crl. No s .7495/2015 Arising out of impugned final judgment and order dated 22-09-2014 in CRM No. 10431/2014 passed by the High Court of Calcutta UNION OF INDIA Petitioner s VERSUS NIYAZUDDIN SK ANR. Respondent s Date 28-07-2017 This petition was called on for hearing today. CORAM HONBLE MR. JUSTICE KURIAN JOSEPH HONBLE MRS. JUSTICE R. BANUMATHI For Petitioner s Mr. Ranjit Singh,SG Mr. T.C. Sharma,Adv. Mrs. Ranjana Narayan,Adv.
We have heard Ms. India Jaisingh, learned senior companynsel for the petitioner. Notification under Section 4 1 of the Land Acquisition Act, 1984 1 of 1984 for short, the Act was published on May 17, 1988 acquiring land over which the workshop was situated for public purpose, namely, for the expansion of dockyard for defence purpose. The petitioner had challenged the validity of the said numberification and the declaration published under Section 6 on May 25, 1989 on diverse grounds. Subsequently, the award came to be passed on January 15, 1991 and the same also came to be challenged by the petitioner-Union. The main companytroversy raised by the petitioner is that they are the persons interested within the meaning of Section 3 d of the Act and in companyducting enquiry under Section 5 A , the Land Acquisition Officer had number given any numberice under subsection 2 of Section 5A. Issuance of numberice and hearing of it is mandatory and the failure to companyply with the mandatory requirement vitiates the declaration published under Section 6 of the Act. We find numberforce in the companytention. The only scope of the enquiry under Section 5A is whether the land sought to be acquired is needed for a public purpose or is an arable land. Besides these questions, the inter se claim of the employer and the workmen of payment of wages and extent thereof are alien to the enquiry. sub-section 3 of Section 5A makes the scope beyond pale of doubt. If the interested person is entitled to companypensation or by implication bound by award of companypensation or excess companypensation is an interested person. Therefore, the petitioners cannot claim to be persons interested for the purpose of an enquiry under Section 5A. Obvious, therefore, the petitioners have companytended that the acquisition is number for a public purpose it is a mala fide acquisition and a vague public purpose of defence and so acquisition is number valid in law. Precedents have been companyiously cited in the High Court in that behalf. The learned single Judge and the Division Bench elaborately companysidered them and held that acquisition for defence purpose is a public purpose. Rodrigue case to Tamil Nadu Housing Board case settled the companytroversy holding that acquisition for housing development is number a vague purpose. Expansion of dockyard for defence purpose is a public purpose. Publication of declaration under Section 6 accords companyclusiveness to public purpose. It is for the appropriate Government to take a decision whether a particular land is needed for a public purpose or number and the Court cannot substitute its opinion on the public purpose to that of the appropriate Government. We wholly agree with the view taken by the High Court in that behalf. As regards person interested this Court dealt with the companytroversy from Himalayan Tiles to Neively Lignites Corporation case and the Constitution Bench decision, per majority. The petitioner, therefore, is number a person interested. Notice and hearing of it under Section 5A 2 is number mandatory. It is next companytended that since the management has gone before the appropriate Government under the Industrial Dispute Act for closure of the workshop and the Government had refused to give such permission, in the absence of such a permission, the acquisition cannot be proceeded with. While the Industrial Disputes Act permits the workshop to be companytinued in operation, the Act deprives the workmen of that right and, therefore, the petitioner is entitled to be heard in that behalf. We find that the companytention is wholly misconceived and the petitioner has chartered out a mistaken companyrse of action. It is true that as a companysequence of the acquisition of land, the workshop was likely to be closed. The material circumstance to be companysidered is whether the State is entitled to acquire the land over which the workshop stands. They very object of companypulsory acquisition is in exercise of the power of the eminent domain by the State against the wishes of willingness of the owner or person interested in the land. Therefore, so long as the public purpose subsists the exercise of the power of eminent domain cannot be questioned. Publication of declaration under Section 6 is companyclusive evidence of public purpose. In view of the finding that it is a question of expansion of dockyard for defence purpose, it is a public purpose. The Government have exercised the power of eminent domain and had got published numberification under Section 4 1 . After companyducting the enquiry Section 5A, declaration under Section 6 was published which is companyclusive evidence of public purpose. The question of their disabilities due to acquisition is companylateral to the enquiry under Section 5A. Therefore, there was numberneed to give numberice under Section 5A 2 number to hear the petitioners. It is next companytended that the petitioners are entitled to the salary and arrears are getting mounted up. If the proper companypensation is number determined and the payment be made, they would stand to lose. We find numberforce in the companytention. The companypensation is required to be determined as provided under Section 23 1 of the Act. It is the function of the Land Acquisition Officer to determine the companypensation. If the person is aggrieved of the companypensation so determined, procedure of reference under Section 18 and a further appeal under Section 54 of the Act have been provided for and the aggrieved persons is only to pursue the remedies provided under the Act. It is then companytended that since the petitioner employees already had the order for recovery of the arrears from the owner of the property, they are interested persons and that, therefore, they should be heard. It is seen that an ward has already been made by the Land Acquisition Officer under Section 11. If the owner or the person interested refused to receive the companypensation, the procedure as companytemplated under Section 31 of the Act required to be followed. We are informed that the petitioners have approached the Land Acquisition Officer for being impleaded as a party interested for companypensation in the award enquiry under Section 11 which request was rejected. If that be so, appropriate remedy is elsewhere or to have the companypensation attached and to recover as arrears of revenues. But in an enquiry under Section 5A such a question does number arise. It is then companytended that on account of the acquisition, the petitioners have lost their jobs and since the Government of India is acquiring the property for public purpose, the Government have to a companyresponding public duty to rehabilitate the workmen in any appropriate industry particularly in Mazgaon Docks Ltd. which also is a public undertaking. They require to be rehabilitated therein. That question is number germane for the disposal of this case.
GOPALA GOWDA, J. The present group of appeals is directed against the final companymon judgment and order dated 29.4.2011 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Petition No. 1638 of 2008 and batch matters whereby, the High Court dismissed all the criminal petitions except Criminal Petition No. 7592 of 2007, which were filed against the order of summoning in various companyplaints filed by the Government of Andhra Pradesh on behalf of the second respondent. The following table would be apposite to clarify which appeal is filed against which criminal petition companyplaint case- Crl. Appeal Nos. before Crl. Petns. Complaint Permission this Court arising from filed for given for Complaint Nos. defamation filing under Section companyplaint s against vide Sanction appellants Nos. 857/2012 Rajdeep Crl. P. Nos. 1874,199 2 Cr.PC G.O. Rt. Sardesai v. State of 1590, 1646 1638 before the No.6581 dated P. ors. of 2008 filed Court IV, 27.10.2007 850/2012 Sidhartha before High Court Addl. Gautam v. State of A.P. against CC No. Metropolitan Ors. 1/2008 - reg. Sessions 852/2012 Swati telecasting a newsJudge, Vashistha Anr. v. programme in Nampally State of A.P. Ors. CNN-IBN English imposing 853/2012 V.K. News channel undercharges under Shashikuamr v. State of the caption 20 Sections 499, P. Ors. minutes-Sohrabuddi500 and 120B 855/2012 Ahmedn Inside Story of IPC Ali Shaik Anr. v. on 13.5.2007 at State of A.P. Ors. 1730 hrs. 856/2012 Hemender Sharma Ors. v. State of A.P. Ors. Crl.A.Nos.854/2012 Crl. P. No. 264 of199 2 r w G.O. Rt. Gulab Kothari Ors. v.2008 before High Sec. 200 Cr.PCNo.6582 dated State of A.P. Anr. Court against CC before the 27.10.2007 and 858/2012 Hemender No.3/2008-reg. Court of II Sharma Ors. v. State publication of Addl. of A.P. Ors. news item in Metropolitan Rajasthan Patrika,Sessions Saturday Edn. Judge, dated 12.5.2007 Nampally, under the Heading imposing Vanjara Par charges under Kastha Phanda Ss. 499, 500, 501, 502 and 120B of IPC Crl.A.851/2012 Lateef Crl. P. No.1252 of199 2 r w G.O. Rt. Mohammad Khan v. State 2008 filed before Sec.200 Cr.PC No.6580 and of A.P. Anr. High Court againstbefore the dated CC No.24/2007-reg.court of I 27.10.2007 publication of Addl. news items in Metropolitan Siasath Urdu Sessions Daily, dated Judge, 8.5.2007 Hyderabad imposing allegations under Sections 499, 500, 501, 502 and 120B of IPC Brief facts of the case are stated hereunder A news item on various dates in the year 2007, allegedly making false implication against the second respondent-Rajiv Trivedi, Additional Commissioner of Police Crimes and SIT , Hyderabad, Andhra Pradesh, with regard to the Sohrabuddin encounter case was published by the appellants in the respective publications and was telecast on CNN-IBN. A representation was given by the second-respondent to the Andhra Pradesh State Government seeking previous sanction under Section 199 4 b of the Code of Criminal Procedure in short Cr.P.C. for prosecution of the appellants for offences punishable under the provisions referred to supra. Accordingly, the previous sanction was accorded by the State Government vide G.O. Rt. Nos. 6581, 6582, 6583 and 6580 dated 27.10.2007 in favour of the second respondent permitting him to file companyplaints against the appellants through the State Public Prosecutor before the appropriate companyrt of law against the individuals companynected with electronic and print media as hereinbelow Siyasat Urdu Daily Sri Latif Mohammad Khan CNN-IBN English News Channel Rajasthan Patrika Jaipur Hindi daily The Deccan Chronicle English Daily The Etemaad Urdu Daily points a - e are hereinafter referred to as individual print and electronic media One of the above mentioned news items which was telecast on CNN-IBN English News channel under the caption 30 minutes- Sohrabuddin the Inside Story on 13.5.2007 at 1730 hours, which is subject matter of CC No. 1 of 2008, is extracted hereunder for our examination- Police sources say Vanjara and Pandian nabbed Kousarbai in Bidar with help from S.P. Rajiv Trivedi of the Hyderabad Special Investigation Unit Rajiv Trivedi provided cars with fake number plates in which Sohrabuddin was brought to Ahmedabad and then killed in a fake encounter. Pursuant to the above said sanction accorded by the State Government of Andhra Pradesh, the criminal proceedings were initiated by the State Public Prosecutor on behalf of the State of Andhra Pradesh against the appellants. The State of Andhra Pradesh represented by the State Public Prosecutor filed the companyplaints against the accused-appellants for the offences referred to supra. The Additional Metropolitan Sessions Judge before whom companyplaints were instituted by the State Public Prosecutor, has taken the companynizance of the offences alleged against the appellants and passed orders summoning them to appear before the Court for further proceedings in the respective cases. Aggrieved by the summoning orders passed by the Additional Metropolitan Sessions Judge in C.C. No. 27 of 2007, C.C. NO. 3 of 2007, and C.C. No.24 of 2007, the appellants filed Crl. P. Nos. 7592 of 2007, 264 of 2008 and 1252 of 2008 under Section 482 of Cr.P.C. before the High Court of Andhra Pradesh, seeking to quash the same, urging various legal companytentions. The High Court after hearing all the above said petitions together, adverting to the previous sanction order accorded in favour of respondent No. 2 by the State Government under Section 199 4 b of the Cr.P.C., permitting the State Public Prosecutor to initiate criminal proceedings for the offences alleged against the appellants referred to supra and after dealing with the companytentions with regard to the legality and validity of the said sanction orders read with the Rules and adverting to various judgments of this Court, allowed only Criminal Petition No. 7592 of 2007 J. Akbar Anr. v. The State of A.P. and dismissed all other criminal petitions holding that the news telecast in the electronic media by CNN-IBN and other news items published in various newspapers of the appellants per se are integrally companynected with the official discharge of duties of the second respondent and held that whether the same amounts to defamatory, libel or scandalous statements is a matter that has to be decided on the evidence to be adduced by the parties. The High Court further held that in the absence of any privilege to the broadcaster on par with Section 7 of the Press and Registration of Books Act, 1867, the appellants cannot claim to quash the criminal proceedings initiated against them and there was numbermerit to quash the said criminal proceedings against the appellants. Aggrieved by the companymon order of the High Court, these appeals are filed by the appellants raising certain substantial questions of law for companysideration of this Court. Learned senior companynsel Mr. Guru Krishna Kumar appearing on behalf of the appellants in Criminal Appeal Nos. 850, 852, 853, 855, 856, 857 of 2012 has companytended that the State Public Prosecutor cannot make a companyplaint under Section 199 2 of Cr.P.C. against an individual in respect of whom numbersanction has been accorded by the State Government as required under Section 199 4 of the Cr.P.C. It is further companytended by him on behalf of the appellants that they have been summoned on the companyplaint instituted by the State Public Prosecutor on behalf of the second respondent on the basis of the previous sanction order accorded by the State Government under Section 199 4 of the Cr.P.C. for prosecuting the individual electronic and print media involved in the case on hand and number for the prosecution of any named individual in the said sanction order and therefore, there is numberapplication of mind on the part of the State Government while according the previous sanction orders in favour of the second respondent to initiate criminal proceedings under the said provisions referred to supra against the appellants herein. It is further companytended on behalf of the appellants that the High Court has erred in dismissing the criminal petitions of the appellants and number quashing the criminal proceedings against the orders of summons passed by the Additional Metropolitan Sessions Judge after taking companynizance of the companyplaints filed by the public prosecutor against the appellants, which are number maintainable in law. It is companytended by him that the High Court has also number companysidered the relevant fact that telecasting the story by the appellant is number in companynection with discharge of public functions of the second respondent being a public servant and this aspect of the matter has number been dealt with by the High Court thereby, it has rendered the findings as erroneous in law and therefore, the same are liable to be set aside. Further, it is companytended by him that the High Court has failed to take into companysideration an important aspect of the matter namely, the State Government while examining the representation submitted by the second respondent for according previous sanction as required under Section 199 4 of the Cr.P.C. and All India Services Conduct Rules of 1968, in his favour authorising the State Public Prosecutor to initiate criminal proceedings against the appellants does number reflect application of mind on the part of the State Government as they have failed to find out whether or number the companyments made against the second respondent by the individual electronic and print media have got companytent which are defamatory, scandalous or libellous and whether the same warrant the State Government to permit such institution of criminal proceedings against the appellants under Chapter XXI of the Indian Penal Code, 1860. Therefore, it is companytended that the above explained reasons would show lack of application of mind on the part of the State Government to the facts presented to it and therefore, the impugned sanction order accorded by it in favour of the second respondent to initiate criminal proceedings against the appellants under the provisions of Cr.P.C. referred to supra is vitiated in law and is liable to be set aside. Further, it is companytended by the learned senior companynsel that the High Court has also failed to take into companysideration another relevant fact that the criminal companyplaints instituted by respondent No. 1-State Government against the appellants, is silent about their role in companymitting the alleged offence of telecasting publishing companyments and allegations against the second respondent which are allegedly defamatory, libellous and scandalous. It is also companytended on behalf of the appellants that the High Court has failed to appreciate that to arraign the appellants as the accused, the companyplainant ought to have made positive averments against them in the companyplaints and attributed a specific role to each one of them in companymitting the alleged offence, warranting initiation of criminal proceedings, the same has number been done, therefore, the summoning order issued by the Metropolitan Sessions Judge and the companyplaints filed against the appellants by the State Public Prosecutor are number sustainable in law and are liable to be quashed. The learned senior companynsel in support of his companytentions has placed reliance upon the following judgments of this Court in the cases of Gour Chandra Rout Anr. v. The Public Prosecutor, Cuttack1, P.C. Joshi Anr. v. The State of Uttar Pradesh2, Mansukhlal Vithaldas Chauhan v. State of Gujarat3 and Urmila Devi v. Yudhvir Singh4. Further, the learned senior companynsel placing reliance upon Section 196 2 of Cr.P.C. companytended that a specific sanction order is required to prosecute in respect of each person to initiate criminal proceedings under Section 120-B of I.P.C., the same has number been obtained by the second respondent. In support of this companytention he placed reliance upon the judgment of this Court in the case of Madan Lal v. The State of Punjab5. Mr. Aruneshwar Gupta, the learned companynsel appearing for the appellants in Criminal Appeal Nos. 854 and 858 of 2012, reiterated the aforesaid legal submissions made by Mr. Guru Krishna Kumar, the learned senior companynsel on behalf of the appellants referred to supra. It is further companytended by him in Criminal Appeal No. 854 of 2012 that it is evident from the numberice dated 13.8.2007 that the sanction for the prosecution was sought against the Editor, News Reporter and Printer and Publisher of Rajasthan Patrika newspaper, however, numbersanction was sought against the Appellant Nos.1, 2 and 3 in Criminal Appeal No. 854 of 2012 who are the Editor in Chief, Advisor and printer and publisher of the said newspaper. After perusal of all the documents and material on record, the State Government granted sanction only against the Editor of Rajasthan Patrika Newspaper the appellant in Criminal Appeal No. 858 of 2012 by its order dated 27.10.2007, after proper application of mind. The application for grant of sanction against appellant Nos.1-3 who are the Editor in Chief, Advisor and Printer and Publisher was specifically rejected by the State Government, therefore, the criminal proceedings initiated against them is number valid in law. It is further companytended by him that since the respondents have number challenged the sanction accorded by the State Government dated 27.10.2007, authorising the criminal proceedings against the Editor and rejecting grant of sanction order against appellant Nos.1-3 in Crl. Appeal No.854 of 2012, the same has become final, therefore, the public prosecutor has numberauthority to file any criminal companyplaint against the appellants in Criminal Appeal No.854 of 2012 who are the Editor-in-Chief, Advisor and Printer and Publisher of Rajasthan Patrika. He companytended that what cannot be derived directly cannot be obtained indirectly by the process of companyrt proceedings. He further placed reliance on the decision of this Court in the case of Jagir Singh v. Ranbir Singh and Anr.6, companytending that in the absence of sanction to prosecute a named person, the public prosecutor cannot file a companyplaint and the Trial Court has numberjurisdiction to judicially review the sanction order and issue summons against those persons whose name do number specifically appear as accused in the order of sanction accorded by the State Government. It is further companytended that this aspect of the matter has number at all been companysidered by the High Court even though the legal submission was made in this regard before it. Both the learned companynsel on behalf of the appellants companytended that there must be valid and companyent material before the State Government for according previous sanction in favour of the second respondent permitting him to initiate criminal proceedings against the appellants. It is companytended by them that the State Government should have examined the facts, allegations and names of the accused and then should have reasonably applied its mind to companyclude whether or number the reputation of the second respondent while discharging his public function as a public servant was intended to be harmed. Only after such reasonable application of mind by the State Government to the facts placed before it, the sanction can be accorded by it in favour of the second respondent to initiate criminal proceedings and only then the companyrt of sessions shall take companynizance of such offence in the criminal proceedings initiated against the appellants. This aspect of the matter has number been companysidered by the learned Judge of the High Court while passing the impugned Judgment. Therefore, the impugned judgment and order is vitiated in law and liable to be set aside. It is further urged by the learned companynsel on behalf of the appellants that the High Court has erroneously held that under the scheme of Section 199 of the Cr.P.C., the previous sanction is required against all such persons who have allegedly companymitted the offence and number necessarily against specific individuals in order to prosecute them for the offences companymitted against a person in respect of his companyduct in the discharge of his public functions who at that time was a public servant employed in companynection with the affairs of the Union or State. Therefore, it is companytended on behalf of the appellants in Criminal Appeal No. 858 of 2012 that the criminal proceedings initiated by the first respondent on behalf of the second respondent should have been companyfined to only against those persons named in the Government sanction order for the offences referred to supra. Mr. Aruneshwar Gupta, the learned companynsel for the appellants in Criminal Appeal Nos.854 and 858 of 2012 further companytended that several investigations were carried out pursuant to the orders passed by this Court in the Sohrabuddin case and on 12.5.2007, a report was submitted by Ms. Johri which finds reference in judgment of this Court in the case of Rubabbuddin Sheikh v. State of Gujarat and Ors.7. The fact of the investigation by the CBI in Sohrabuddins case was in public domain and if that is published in the print media by the appellant in Crl. A. Nos. 854 858 of 2012 , the same cannot be made the basis of any defamation as it has referred to the judgment in the aforesaid case which is a public record. It is also further companytended by him that Rajasthan Patrika is a subscriber of United News of India UNI which is one of the largest News Agencies in India, providing news to several news papers in India. The UNI published and broadcast the news item dated 12.05.2007 and the appellants in Criminal Appeal No. 858 of 2012, being the Editor of Rajasthan Patrika got the same translated in Hindi and published it in their news paper which is allegedly defamatory to the second respondent. It is further companytended by him that United News of India is the source and first broadcaster of the alleged defamatory news to its subscribers including the newspaper for which the appellant is the Editor, who acted and published in bona fide the alleged offending news believing it to be true and companyrect. Therefore, in the absence of any prosecution of UNI, the appellant cannot be prosecuted for the offence of defamation as the same is companyered under the Explanation 3 of Section 499 of I.P.C. It is further companytended that freedom of expression demands that criminal defamation in relation to publication of news items and articles may number be invoked in all the cases but should be limited to only exceptional cases to redress the immediate harm done to the reputation of the individuals who have been defamed and shall number be allowed to be used as remedy to serve the ulterior goal as the same will have a negative and damaging effect on the freedom of expression guaranteed to the press. It is further companytended by him that Section 499 of I.P.C. defines the offence of defamation as spoken or written, Section 501 of I.P.C. is for defamatory printing or engraving of defamatory matter and Section 502 of P.C. is for sale of printed or engraved substances companytaining defamatory material. Therefore, Section 499 of I.P.C. would companyer the Editor while Section 501 will companyer the Publisher and Printer and Section 502 of I.P.C. companyers the seller. As the offences mentioned under Sections 501 and 502 of P.C. are specifically distinct offences which are against the Publisher and the Seller, therefore, the previous sanction order was granted in favour of the second respondent against the Editor of the Newspapers and rejected against the Printer and Publisher. Therefore, in these appeals, the appellants cannot be tried for the offences under Section 499, 501, 502 of I.P.C. with the aid of Section 120-B of I.P.C. as the liability of defamation is only limited to the Editor. In Criminal Appeal No. 851 of 2012, Mr. Abhimanue Shrestha, the learned companynsel appearing for appellant-Mr. Lateef Mohd. Khan, General Secretary, Civil Liberties Monitoring Committee, who has allegedly made certain false and baseless statements against the second respondent under the news item Rajiv Trivedi-Hyderabad Ka Vanjara Fauri Bharkhast Karne Ka Mutalika published on 8.5.2007 in Siyasat Urdu Daily, companytended that the appellant is neither the Publisher number the Seller of the said Urdu Daily, therefore, one would believe that he made such statements on the basis of the information through electronic and print media. It is therefore, companytended that in view of the nature of the allegations against the second respondent, the appellant who is the Secretary of the Civil Liberties Monitoring Committee made the above statements published in Siyasat Urdu Daily to make the public aware of the same. The alleged offences are number attracted against him as the allegations in the companyplaint do number companystitute any of the offences under Sections 500, 501, 502 and 120-B of I.P.C. The learned companynsel questioned the legality and validity of previous sanction accorded by the State Government in favour of the second respondent to prosecute the appellant in the said appeal by placing reliance on the decisions of this Court in the cases of Kartar Singh Ors. v. The State of Punjab8 and R. Rajagopal Anr. v. State of T.N. Ors.9 On the other hand, Mr. P. Vishwanath Shetty, the learned senior companynsel appearing on behalf of the State has sought to justify the sanction order authorising the Public Prosecutor to institute criminal proceedings against the appellants herein, the same was accorded after applying its mind to the facts stated in the representation given by the second respondent that the statements telecast and published in the electronic and print media by the appellants were defamatory and affected his reputation and the same were in companynection with the discharge of his public functions as an IPS Officer. The State Government after applying its mind was satisfied that the reputation of the second respondent was harmed by printing and telecasting the defamatory statements by the appellants herein. Therefore, it accorded the sanction order under Section 199 4 of Cr.P.C. in favour of the second respondent to initiate criminal proceedings against the appellant, which provision does number speak of mentioning the names against whom the criminal prosecution has to be instituted by the State Public Prosecutor. He has further companytended that the learned Additional Metropolitan Sessions Judge, after applying his mind with regard to the allegations made against the appellants took companynizance of the matter and issued order of summons to the appellants to appear before the sessions companyrt with their respective companynter to the criminal proceedings initiated against them. The same was stalled by the appellants herein by initiating proceedings before the High Court and this Court. It is companytended by him that the challenge before the High Court has been rightly rejected after dealing with each one of the rival legal companytentions urged in the Criminal Petitions filed by the appellants, which do number warrant interference by this Court in exercise of its appellate jurisdiction, as the appellants are required to face the trial in the proceedings initiated against them by respondent No. 1- the State Government. Mr. Pappu Nageshwar Rao, the learned companynsel appearing for the second respondent, sought to justify the sanction accorded in favour of the second respondent by drawing our attention to the provisions of Sections 132, 188, 196, 197, 199 of Cr.P.C. He sought to distinguish previous sanction provided under Section 194 and placed reliance upon the judgments of various High Courts in the cases of Master Girdhari Lal, Printer Publisher of Naya Bharat v. The State10, Pachhalloor Noohu v. Public Prosecutor11, Sant Lal v. Krishan Lal12 and B. Basavalingappa and Anr. V. Narasimhan13 in support of the proposition of law that previous sanction order by the State Government can be granted under Section 198B 3 a of the Code of Criminal Procedure, 1898, by any Secretary or authorisation of the Government in favour of a public servant to prosecute the persons who have companymitted offences of defamation against him. He further placed reliance upon Section 308 proviso 2 and Section 473 of Cr.P.C., regarding the limitation for sanction and Section 484 of Cr.P.C. regarding sanction saving clause to justify that the sanction accorded by the State Government to prosecute the appellants herein is perfectly legal and valid. He therefore urged that in view of the above, the sanction accorded by the State Government in favour of second respondent cannot be found fault with by the appellants and prayed for dismissal of these appeals. We have heard the rival legal companytentions urged on behalf of learned companynsel for both the parties and answer the same by assigning the following reasons. With regard to the companytention urged by learned senior companynsel Mr. Guru Krishna Kumar on behalf of the appellants in Criminal Appeal No.857 of 2012 and companynected appeals that the High Court has number companysidered all the issues raised before it in the criminal petitions filed by the appellants seeking for quashing of the criminal proceedings initiated against them, is wholly untenable in law for the reason that from perusal of the impugned order of the High Court, it is clear that the sanction was accorded by the State Government under the relevant Government order in favour of the second respondent. On examining the facts, circumstances and evidence on record, the previous sanction is accorded to launch necessary prosecution against the CNN-IBN channel, Siyasat Urdu Daily Sri Latif Mohammad Khan, Rajasthan Patrika Jaipur Hindi daily, Deccan Chronicle English Daily and Etemaad Urdu Daily. By careful reading of the provision under Section 199 of Cr.P.C., read with the All India Services Conduct Rules, 1968, it provides that previous sanction must be accorded, authorising the initiation of criminal prosecution against the accused, however, the said provisions do number state that it is necessary to mention the names of each one of the accused who are alleged to have companymitted the offence in the same alleged transaction. Therefore, in the case on hand, when the previous sanction was accorded by the State Government against those who were responsible for the telecast publication of the news both in electronic and print media which according to the second respondent damaged his reputation, it is number necessary for the State Government to separately issue sanction order against each one of the appellants, when they are all responsible for telecasting and publishing the said news item in the electronic and print media and also when the names of the said electronic and print media have already been mentioned in the said sanction order. Therefore, there is numbermerit in the companytention urged on behalf of the appellants that their names have number been specifically mentioned in the said sanction order. The said companytention is untenable in law and therefore, liable to be rejected. The same is accordingly rejected. Further, the reliance placed by the learned companynsel on behalf of the appellants upon the judgments of this Court referred to supra while according sanction in favour of the second respondent to initiate the criminal proceedings against the appellants the State Government has number applied its mind, this companytention is also wholly untenable in law as the exercise of power by the State Government under Section 199 of Cr.P.C. is in the administrative and ministerial capacity and according of such sanction is as per the subjective satisfaction on the part of the State Government. The learned senior companynsel on behalf of the appellants has placed reliance upon the judgments of this Court in the cases of Gour Chandra Rout Anr. v. The Public Prosecutor, P.C. Joshi Anr. v. The State of Uttar Pradesh and Mansukhlal Vithaldas Chauhan v. State of Gujarat all referred to supra . With regard to the above referred cases, the first two cases have number dealt with the exercise of power under Section 199 of Cr.P.C., except stating the ministerial exercise of power by the State Government while exercising its power under Section 198B 3 a of Cr.P.C, 1898. In so far as the third case referred to supra upon which the reliance placed upon by the learned senior companynsel on behalf of the appellants, the same is in relation to the previous sanction to be accorded by the State Government for the purpose of prosecution under the provisions of the Prevention of Corruption Act. Therefore, numbere of the above cases on which reliance has been placed by the learned companynsel on behalf of the appellants have any relevance to the fact situation on hand. Having regard to the scheme of the Protection of Civil Rights Act, 1955, the companyplainant-second respondent during the relevant point of time was the Police Officer in the services of the State Government and he cannot prosecute the appellants in a companyrt of law without obtaining previous sanction from the State Government as companytemplated under the aforesaid provisions of Cr.P.C. Therefore, in order to prosecute the appellants, the second respondent made a representation to the State Government along with a petition with regard to initiation of criminal proceedings against the appellants under the provisions referred to supra in respect of which he has sought the sanction of the State Government. On appreciation of the same, the State Government in exercise of its administrative powers appreciated the facts of the matter, rightly applied its mind and accorded the sanction under Section 199 4 of Cr.P.C. in favour of the second respondent to initiate criminal proceedings under the provisions referred to supra against the appellants. The said sanction was accorded by the State Government after appreciating that the statements telecast published by the appellants in the electronic and print media as well as the statement given by the appellant in Criminal Appeal No. 853 of 2012 in the Urdu Daily on the basis of which the news is published by its Editor, which are all statements defaming the second respondent while he was discharging his public function as a public servant. Therefore, the companytention on behalf of the appellants that there was numberapplication of mind on the part of the State Government in according the said sanction is wholly untenable in law, liable to be rejected and the same is accordingly rejected. Further, the companytention urged by the appellants companynsel placing reliance upon the aforesaid judgements that the act of the second respondent allegedly aiding the Gujarat Police Officers to facilitate taking Sohrabuddin from Bidar to Ahmedabad, has numberhing to do with the discharge of his public functions, hence, the said statement in the news item allegedly defaming the second respondent being telecast and published in electronic and print media do number attract Section 199 of Cr.P.C. Therefore, it is companytended on behalf of the appellants that the sanction accorded by the State Government is beyond its jurisdiction as the said act of aiding the Gujarat Police is an independent act and it is number in relation to the discharge of public functions of the second respondent though he, at that relevant point of time, was discharging his public functions. This companytention on behalf of the appellants is also wholly untenable in law, for the reason that determining the question on whether or number the second respondent while aiding the Gujarat Police at that point of time was in the capacity of his official discharge of his public functions or otherwise, is to be determined by regular trial after examining the facts, circumstances and evidence on record. The reliance placed upon the judgment of this Court in the case of Rubabbuddin Sheikh supra , companytending that the fact of the investigation by the CBI in Sohrabuddins case was the subject matter before this Court at para 2 of the judgment in the case referred to supra, therefore, by publishing the same in the newspaper by the appellants in Crl. A. Nos. 854 858 of 2012 cannot be made the basis of any defamation as the said news item was published after referring to the aforesaid judgment which is a public record. This companytention urged on behalf of the appellants is wholly untenable in law for the reason that at para 2 of the said judgment of this Court in the above referred case is only with regard to the facts of that case, whereas, the allegations made against the appellants herein are for publishing and telecasting defamatory statements against the second respondent, which question of fact has to be examined, companysidered and answered only after regular trial proceedings before the learned Additional Metropolitan Sessions Judge. Therefore, the above companytention urged in this regard is wholly untenable and the same is rejected. Further, the learned companynsel in Criminal Appeal Nos. 854 and 858 of 2012, placed reliance upon the judgment of this Court in the case of Urmila Devi supra , in support of the proposition of law that only the Editor-In-Chief is responsible for the telecast or publication of the alleged defamatory statements against whom the sanction order is accorded and that there is numbersanction order accorded to initiate prosecution against others. Further, the companytention on behalf of the appellants that there must be specific mention of persons in the sanction order against whom prosecution can be launched and in the absence of the same, a single sanction order accorded by the State Government against all the other appellants in the companynected appeals amounts to giving a wider interpretation of the provision under Section 199 4 of Cr.P.C., which is number the object of the aforesaid provision under the Cr.P.C. This aspect of the matter has number been examined by the High Court therefore, impugned order is vitiated in law and is companytrary to the provisions of Section 199 4 of the Cr.P.C. By careful reading of Section 199 4 of the Cr.P.C., it does number indicate that in order to initiate criminal proceedings against the accused, the public servant needs to obtain sanction from the State Government in respect of each one of the persons against whom the same transaction of offence is alleged and the names of the accused are required to be mentioned specifically in the sanction order accorded by the State Government. It is sufficient if one sanction is accorded to prosecute all the companycerned persons involved in that occurrence, thus, the companytention on behalf of the appellants in this regard is also liable to be rejected and is accordingly rejected. The companytention urged by the learned companynsel Mr. Abhimanue Shrestha on behalf of the appellants in Criminal Appeal No.851 of 2012 is also untenable in law for the reasons stated that the appellant has made a statement on the basis of the news items telecast published in electronic and print media. The same cannot be accepted by us for the reason that it is a matter that has to be examined by the trial companyrt after recording the findings of fact on the basis of valid and companyent evidence to be adduced by the State Public Prosecutor on behalf of the respondent. Therefore, there is numbersubstance in the said companytention urged on behalf of the appellants and the same is rejected. The learned companynsel appearing on behalf of the second respondent rightly sought to justify the findings and reasons of the High Court in its impugned judgment, placing reliance on Sections 132, 188, 196, 197 and 199 of Cr.P.C., inter alia companytending that for prosecution of an accused in the case of defamation of a public servant, sanction can be accorded under the old Section 198B 3b of Cr.P.C.,1898, by any Secretary or authorisation by the Government. He has also placed reliance upon Section 2U of Cr.P.C. which defines a Public Prosecutor as any person appointed under Section 24 and included any person acting under the directions of a Public Prosecutor. The learned companynsel on behalf of the second respondent has rightly justified that the sanction accorded by the State Government to prosecute the appellants is perfectly legal and valid by placing reliance on Section 308 proviso 2, Section 473 of Cr.P.C. regarding the limitation for sanction and Section 484 of Cr.P.C. The learned companynsel has also rightly placed reliance upon the judgments in the cases of Master Girdhari Lal, Printer Publisher of Naya Bharat v. The State, Pachhalloor Noohu v. Public Prosecutor and Sant Lal v. Krishan Lal and B. Basavalingappa and Anr. v. Narasimhan all referred to supra. Therefore, the submission made by him is well founded and the same must be accepted. Further, the learned companynsel for the appellants by placing reliance on Articles 19 and 21 of the Constitution of India companytended that the initiation and companytinuance of the criminal proceedings in the present cases hinder and hamper the very freedom of press which is most precious and companystitute an affront to the aforesaid provisions under the Constitution of India. The said companytention has been rightly rebutted by the learned companynsel on behalf of the respondents by strongly urging that the reputation of an individual is also equally important and that the said aspect of the matter must be companysidered after adducing companyent and valid evidence on record by the Public Prosecutor before the learned trial Judge who shall then appreciate the same and record his findings on merits of the case.
B. Sinha, J. Leave granted. This appeal is directed against a judgment and order dated 28.2.2005 passed by a Division Bench of the High Court of Andhra Pradesh at Hyderabad, in Writ Petition No. 9412/1998 questioning the companyrectness of the judgment and order dated 17.4.2003 passed by the Andhra Pradesh Administrative Tribunal in O.A.No. 4866/2001 and C.A. No. 758/2001. The basic fact of the matter is number in dispute. Respondent herein was working as a Principal in various companyleges, situated in the State of Andhra Pradesh. On or about 18.7.1990, several charges of misconduct were framed against him. A departmental proceedings was initiated. In the said departmental proceedings, the Inquiry Officer submitted his report on 8.1.1992. However, before any action companyld be taken pursuant to and in furtherance of the said report, the respondent retired on 30.6.1992. A proceeding was initiated against the respondent upon service of a numberice to show cause as to why 50 of the provisional pension fixed in his favour in terms of an interim orer dated 18.3.1993 in O.A. No. 1992/1993 passed by the Director of Intermediate Education, Hyderabad, or part thereof should number be withheld. Respondent filed his reply to the said show cause numberice on 20th November, 1997. During the pendency of the said departmental proceeding, an original application was filed by him before the Andhra Pradesh Administrative Tribunal which was marked as O.A.No. 4866/2001. By reasons of its order dated 17.4.2003, the Andhra Pradesh Administrative Tribunal directed the State to companyclude the departmental proceeding within a period of three months. The said order came to be questioned by the respondent herein before the High Court. In the meantime, a recovery proceeding was also initiated against him. The companyrectness or validity of the said recovery proceeding was also questioned by the respondent before the High Court. The High Court by its order dated 16.2.2005 passed in Writ Petition No. 110/2005, directed the third appellant herein to be personally present in companyrt and explain the reasons as to why the amount of pension payable to the respondent to the respondent herein had number been paid despite the earlier directions of the High Court. The original respondent No.3 appellant No. 3 herein submitted his explanation. However, by reason of the impunged judgment the High Court, on the premise that the pension payable to the respondent has illegally been withheld for a payable to the respondent has illegally been withheld for a long time, directed Accordingly the writ petition is disposed of directing the Government to release full pension to the petitioner from 01.07.1992 duly giving credit to the pension already paid to him. The pension, as directed above, shall be released to the petitioner within a period of two 02 months from the date of receipt of a companyy of this order. The arrears of pension shall carry interest at the rate of 12 per annum from 01.071992 till date of payment. The writ petition filed by the respondent herein questioning a part of the order of the Tribunal was also dismissed. The principal issue which falls for our deterimination, in view of the rival companytentions advanced by the learned companynsl appearing on behalf of the parties, is whether the High Court was justified in pasing the impugned judgment quashing the disciplinary proceedings and issue a direction to the appellant to pay all pensionary benefits to the respondent herein, only on the ground of delay in companycluding the departmental proceedings. The charges made against the respondent are as under Charge-1. That Sri V. Appala Swamy, while working as Principal, Govt. Junior College, Kurupam had falsfied and tampered with certain records of the companylege and irregularly drawn the salaries for certain period without being regulated. Charg-2. That Sri V. Appeala Swamy while working as Principal, Govt. Junior College, Kurupam had misappropriated the funds and companymitted serious financial irregularities in flagrant violation of rules and regulation therenby, causing pecuniary loss to the Government. Charge-3. That Sri V. Appeala Swamy while working as Principal, Govt. Junior Collage, Kurupam was found to be very negligent and highly irresponsible in discharging of his duties. It was found that the respondent while working in differenet instutions have companymitted acts of misappropriation, the details whereof are as under Govt. Junior College, Chodavaram Rs. 1,92,75445 Govt. Junior College, Chinthapalli Rs. 15,12150 Govt. Junior College, Pedurthi Rs. 36,87960 Govt. Junior College, Kurupam Rs. 40, 80170 Disciplinary case Incremental arrears irregularly sanctioned Rs. 7,572 by himself from 1/87 to 4/92 Excess HRA drawn at GJC, Chodavarm, Rs. 9,24000 from 5/87 to 10/89 Surrender leave salary due to irregular Rs. 1,38640 credit of earned leave for Panchayat Raj Election in 1980-81 Govt. Junior College, Parvathipuram Rs. 1,43,53800 Total Rs. 4,50,29300 It may be true that there was some delay on the part of the appellants to companycude the departmental proceedings. The Tribunal did number accept the companytention raised on behalf of the respondent that only by reason thereof the entire departmental proceedings became vitiated. The High Court thus, in our opinion, was required to companysider the question as to whether, in the facts and cirucmstances of this case particularly in view of the nature of the charge levelled against the respondent as also the expalanation offered by the appellants in this behalf, it was a case where the entire proceedings should have been quashed. The High Court in its impugned judgment did number address itself the said question. It, as numbericed hereinbefore, from the very beginning proceeded on the premise that the pension was payable to the respondent on his retirement. The High Court furthermore did number determine the question as to whether a proceeding companyld have been intitated against the respondent in terms of Rules 9 of the Andhra Pradesh Civil Service CCA Rules, 1963. If it is held that the second proeeding was maintainable in terms of the extant ruels, ordinairly, the Tribunal or the High Court should number have interfered therewith. This aspect of the matter is companycluded by the decisions of this Court in State of Uttar Pradesh v. Braham Dutta Sharma and Anr., 1987 2 SCC 179 and State of U.P. v. Harihar Bhole Nath, 2006 11 SCALE 322. So far as the question of delay in companycluding the departmental proceedings as against a delinquent officer is companycerned, in our opinion, numberhard and fast rule can be laid down therefor. Each case must be determined on its our facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are Where by reason of the delay, the employer companydoned the lapsee on the part of the employee 2 where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry officer. This aspect of the matter is number squarely companyered by the decisions of this Court in Secretary to the Govt. Prohibition Excise Deptt. v. L. Srinivasan, 1996 3 SCC 157 P.D. Agrawal. v. State Bank of India and Ors., 2006 5 SCALE 54 Deputy Registrar, Co-op Societies. Faizabad . v. Sachindra Nath Pandev Ors., 1995 3 SCC 134. Learned Councel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani. v. Union of India Ors., 2006 5 SCC 88. That case was decided on its pecuilar facts. In that case. even the basic material on which a departmental proceedings companyld be initiated was absent. The departmental proceedings was initiated after 6 Years and companytinued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced. Bijlani supra therefore, is number an authority and, in fact, as would appear from the decision in P.D. Agrawal supra , for the proposition that only on the ground of delay the entire proceedings can be quashed without companysidering the other relevant factors therefor. The High Court did number companysider any of the aforementioned aspects. For the reasons aforementioned, the impugned judgment of the High Court cannot be sustained and it is set aside accordingly.
A. Nos. 2921-2939 of 2001 The state of Tamil Nadu is the appellant assailing the judgment of the division bench of Madras High Court. The dispute centers round the question as to whether the state government has the power and companypetence to frame rules and regulations determining the service companyditions of the employees of different companyporations which are in fact the government companypanies under the Companies Act. Be it stated that in the state of Tamil Nadu originally there were only four companyporations and in companyrse of time number of companyporations grew to 23. Way back in the year 1984 the state government drew up a seniority list of the employees belonging to the cadre of assistant manager and deputy manager on the basis of the companytinuous length of service. The next promotional post from the post of deputy manager is the senior deputy manager which post has companye into existence at a later point of time. In 1987 when the question of promotion to the post of senior deputy manager from the post of deputy manager cropped up for companysideration the government changed the criteria for determination of seniority in the cadre of deputy manager and on the other hand indicated that instead of entry into the cadre of deputy manager being the sole criteria for seniority in the cadre, weightage has to be given to their past services rendered in the cadre of assistant manager as well as the other supervisory cadre. The present respondents felt aggrieved by the aforesaid decision of the state government and without impleading their employer, namely, the companyporations, filed writ applications which were heard and disposed of by a learned single judge. The companytentions raised before the learned single judge were that the subsequent change of decision of the government in 1987 is arbitrary and illogical and affects the chances of promotion of the employees, who ought to have been governed by the principle that had been evolved in 1984. The prayer in the writ petition was to quash the 1987 decision and to implement the 1984 decision for the purpose of promotion to the post of Sr. deputy manager. The learned single judge while dismissing the writ petition was of the opinion that the policy decision of 1984 create a lot of anomaly and several companyplaints had been received and to avoid such anomalies and to redress grievance of the employees the government came forward with the decision of the 1987. According to the learned single judge the impugned decision of 1987 cannot be held to be arbitrary or irrational requiring interference of the companyrt under Article 226 of the Constitution of India. Against the dismissal order passed by the learned single judge the employees carried the matter in appeal to the division bench. Before the division bench the companytention was raised with regard to the companypetence of the state government to frame rules and regulations determining the service companyditions of the employees of the companyporation though such a companytention had number been raised before the learned single judge. The division bench entertained the said companytention and being of the opinion that each of the companyporations being an independent companypany under the Companies Act, have an independent existence and the service companyditions of the employees of such companyporations have to be determined by their employer, namely the companypany and the state government has numbercompetence to frame rules determining the service companyditions of the employees. The division bench also recorded a finding that there are numbermaterials that these companyporations have adopted a companymon rule in respect of the employees of the respective companyporations. Mr. V.R. Reddy the learned senior companynsel appearing for the state, raised two companytentions in assailing the companyclusion of the division bench of the High Court-one, the division bench companymitted error in deciding the question of companypetence of the government to frame service companyditions of the employees of the companyporation without impleading the companyporations who are the employers of the employees and it is the companyporation on being present who alone companyld have answered the question as to whether the companymon rules have been adopted by the companyporations for determining the service companyditions of the employees pursuant to the direction and or administrative order of the state government. It was further companytended by Mr. Reddy that such a companytention number having been raised before the learned single judge in the writ petition, the division bench was number entitled to examine that question. Mr. T.L.V. Iyer, the learned senior companynsel appearing for the employee respondents on the other hand companytended that the question with regard to the companypetence of the state government to frame rules and regulations for determination of service companyditions of the employees of the companyporations being a pure question of law there was numberbar for the division bench to entertain and decide the same. In answer to the first companytention, Mr. lyer companytends that since it is the direction of the state government which was under challenge, it was number necessary to implead the employer-corporation as party-respondent and therefore the decision of the division bench need number be interfered with in exercise of power under Article 136 of the Constitution of Jndia. Having companysidered the rival companytentions made at the bar and the companyclusions of the learned division bench of the Madras High Court, we have numbermanner of doubt that the companyporations who are the employers of these employees should have been impleaded as party-respondent before companysidering the question as to whether a companymon seniority rule or rules regarding service companyditions have been adopted by each of these companyporations, which are independent entities in the eye of law, they being different companypanies under the Companies Act. It is true that ordinarily a companytention number raised before the single judge ought number to have been allowed to be canvassed before the division bench. But, where numberquestions of fact is involved and the question is purely a question of law, more so, with regard to the companypetence of the state government to frame a set of rules, we are of the opinion that it was open for the division bench to entertain that companytention and answer the same but before arriving at any companyclusion on the score, the division bench should have heard at least the companyporations who are the real employers of these employees. Be it stated that these employees have accepted the rules of seniority which had been issued by the state government in the year 1984 and they made a companyplaint only when in 1987 the rules framed by the government became number beneficial to them. In the aforesaid circumstances, we set aside the impugned judgment of the division bench of Madras High Court and direct that the writ appeals filed by the employees be heard and disposed of within a period of three months from today. It would be open for the companyporations to seek impleadment before the High Court and on such an application being filed the High Court would do well to allow the impleadment and entertain their companytentions including the companytention that in fact they have adopted the rules of the government by any decision of the companypany. Needless to mention, the division bench would number only go into the question of companypetence of the state government, but all other questions on merits. These appeals stand allowed accordingly. Civil Appeal Nos. 3203-3204 of 2002 These appeals are directed against the judgment of the learned single judge of the Madras High Court which the learned single judge disposed of following the decision of the division bench of the Madras High Court which was the subject matter of challenge in civil appeal No. 2921 of 2001. In view of our order in civil appeal No.
SEN, J. The following question of law was referred by the Tribunal to the Orissa High Court under Section 256 1 of the Income Tax Act, 1961 Whether on the facts and in the circumstances of the case, the companymission paid by the assesseefirm to Sri Rashiklal P. Rathor individual is allowable under section 40 b of the Income Tax Act, 1961 as a deduction while companyputing the business income of the assesses. The assesses is a partnership firm carrying on a number of businesses including sale and purchase of various companymodities as well as mining. The partners of the firm were Popatlal Devram Jayantilal Jagmal Pragji Devram Ratilal Odhavji Rashiklal P Rathor Popatlal is Rashiklals father. On 1.4.1976, there was on oral partition of the share of Popatlal in the firm amongst Popatlal, his wife and his two sons including Rashiklal. The assets of Rashiklal companytinued to be invested in the partnership firm. Rashkilal was Karta of a smaller HUF. On 17.10.1978, there was an agreement between Rashiklal and the firm Rashiklal and Company that Rashiklal will receive 37 paise per tone of mineral sold by the firm. In the assessment year 1980-81 Rashiklal received a sum of Rs. 28579/- as companymission. The firm claimed deduction of this amount from its income. The claim was negatived by the Income Tax Officer. The Appellate Assistant Commissioner allowed the appeal holding that the companymission was paid to Rashiklal in his individual capacity and number as Karta of the smaller HUF which is the partner of the firm. Since the payment was number made to the partner, Section b of the Income Tax Act was number attracted. The amount of companymission paid to Rashiklal companyld number be included in the income of the firm. On further appeal by the Revenue, the Tribunal held that Section 40 b of the Income Tax Act clearly applied in this case. Payment to Rashiklal will be payment to a partner. The partnership firm companyld number claim any deduction for this payment from its income. The High Court on reference held that there was clear material that Rashiklal had invested his joint family funds to enter into the partnership. Payment was made to Rashiklal who was a partner. Accordingly, the tribunal was companyrect in companying to the companyclusion that Section 40 b will be applicable in this case. The firm was number entitled to claim any deduction on account of payment of companymission to one of its partners. The firm has companye up in appeal against the judgment of the High Court. Section 40 b of the Income Tax Act, at the material time, stood as under Notwithstanding anything to the companytrary in sections 30 to 39, the following amounts shall number be deducted in companyputing the income chargeable under the head profits and gains of business or profession. X X X X In the case of any firm, any payment of interest, salary, bonus, companymission or remuneration made by the firm to any partner of the firm. In our view, the answer to the question raised in this case is self-evident. There is numberdispute the Rashiklal was a partner of the assessee-firm. For assessment of the firm under the head profits and gains of business and profession any payment of companymission by the firm to any partner of the firm will number be allowed as deduction. The firm has paid a companymission of Rs. 28579/- to Rashiklal and has claimed that amount as deduction. Such deduction is number permissible in clear terms of Section 40 b . The language of the Section is simple and clear. But to companyplicate the matter an argument was sought to be made that Rashiklal had number joined the firm as an individual but was really representing an HUF. The payment to Rashiklal did number amount to payment of companymission to the HUF which was the real partner. Therefore, the amount of companymission paid by the firm to a number-partner or a partner who had joined the firm in a representative capacity, will number fall within the mischief of Section 40 b . We are unable to uphold this companytention for a number of reasons. A firm is a companypendious way of describing the individuals companystituting the firm. An HUF directly or indirectly cannot become a partner of a firm because the firm is an association of individuals. In the case of Dalichand Laxminarayan v. Commissioner of Income Tax ITR 535, it was held by a Branch of three Judges f this Court that a firm is number a person and as such was number entitled to enter into a partnership with another firm or an HUF or an individual. In that case, an individual, a joint family and three firms purported to enter into a partnership. The agreement of partnership was signed by the individual partner, the Karta of the joint family and one partner each of the three firms. The firm applied for registration under Section 26A of the Income Tax Act. The application was signed by the aforesaid five individuals. This Court held that there companyld numberquestion of granting registration to a partnership purporting to be one between three firms, an HUF and an individual. In companying to this companyclusion, this Court relied on the provisions of Indian Partnership Act wherein, Partnership, partner, firm and firm name were defined in the following manner Definition of partnership, partner, firm and firm name 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. Persons who have entered into partnership with one another are called individually partners and companylectively a firm, and the name under which their business is carried on is called the firm name. R. Das, C.J. Speaking for the Court observed This Section clearly requires the presence of three elements, namely, 1 that there must be an agreement entered into by two or more persons 2 that the agreement must be to share the profits of business and 3 that the business must be carried on by all or any of those persons acting for all. According to this definition persons who have entered into partnership with one another are companylectively called a firm and the name under which their business is carried on is called the firm name. The first question that arises is as to whether a firm as such can enter into an agreement with another firm or individual. The answer to the question would depend on whether a firm can be called a person. Das, C.J., thereafter, went on to examen the meaning of the word person in the Partnership Act. It numbered that persons had number been defined in the Partnership Act. However, the General Clauses Act, 1897, had defined Person in Section 3 42 as under Person shall include any companypany or association or body of individuals whether incorporated or number. After referring to the definition of person in the General Clauses Act, Das, C. J. observed that the firm was number a companypany but was certainly an association or body of individuals. The Court, however, after examining the scheme of the Partnership Act and the companyresponding provisions of the English Law on the subject, held that the definition given to person by the General Clauses Act companyld number be extended to the Partnership Act having regard to the various provisions of that Act. The Court companycluded It is clear from the foregoing discussion that the law, English as well a Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid numberions and extended a limited personality to a firm. Nevertheless, the general companycept of partnership, firmly established in booth systems of law, still is that a firm is number an entity or person in law but is merely an association of individuals and a firm name is only a companylective name of those individuals who companystitute the firm. The view of this Court was that when Section 4 of the Partnership Act spoke of persons who had entered into partnership with one another it companyld only be individual and number a body of person. A body of persons like a firm companyld number enter into partnership with other individuals. An HUF cannot be in a better position than a firm in the scheme of the partnership Act. The reasons that led this Court to hold that a firm cannot join a partnership with another individual will apply with equal force to an HUF. In law, an HUF can never be a partner of a partnership firm. Even if a person numberinated by the HUF joins a partnership, the partnership will be between the numberinated person and the other partners of the firm. Having regard to the definition of partnership and Partners and in view of the principle laid down in Dulichands Case supra , it is number possible to hold that an HUF being a fluctuating body of individuals, can enter into a partnership with other individual partners. It cannot do indirectly what it cannot do directly. If a Karta or any other member of the HUF joins a partnership, he can do so only as an individual. His rights and obligations vis-a-vis other partners are determined by the partnership Act and number by Hindu Law. Whatever may be the relationship between an HUF and its numberinee partner, in a partnership, neither the HUF number any member of the HUF can claim to be a partner or companynected with the partnership through a numberinee. Where the Karta of an HUF enters into a partnership agreement with a stranger, the Karta alone in the eye of law is the partner. If any payment by the firm to a partner is prohibited by law, the Karta cannot be heard to say that the payment was received by him number as a partner but in some other capacity. Within the partnership, the Karta is a partner like any other partner with whom he has entered into a partnership agreement individually. It is essential to have an agreement between the partners to form a partnership. An HUF number being a person cannot enter into an agreement of partnership. If the Karta of an HUF enters into partnership with a stranger, upon the death of the Karta, the partnership will stand dissolved. In the absence of a companytract to the companytrary, another member of the family cannot step into the shoes of the Karta claiming that the Karta was merely representing the HUF and the real partner was the HUF. A Karta who enters into a companytract of partnership with a stranger may be accountable to the other members of the HUF for the profits received from the partnership business. But that is something between the Karta and the HUF. But that is something between the Karta and the HUF. But so far as the partnership firm is companycerned, the Karta is a partner like any other partner. if a companymission is paid to a partner who happens to be a numberinee of an Huf, the companymission is number paid to the HUF. It is paid by the firm to one of its individual partners. The partner may have to account for the monies received from the firm to another person or another firm or an association of persons or an HUF. But that will number alter the fact that companymission was paid by the firm to one of its partners. The partnership Act companytains various provisions regulating the relationship between partners. The partners are bound to carry on the business of the firm to the greatest companymon advantage, to be just and faithful to each other and to render true account and true information of all things affecting the firm to any partner or his legal representative. Every partner has a right to take part in the companyduct of the business. Every partner is bound to attend diligently to his duties in the companyduct of the business. Any differences arising as to ordinary matters companynected with the business may be decided by majority of the partners and every partner shall have the right to express his opinion before the matter is decided. No change can be made in the nature of the business without the companysent of all the partners. Every partner has a right to have access to and to inspect and companyy and y of the books of the firm. All these provisions will apply to a partner who represents another body the HUF who has a numberinee partner in a firm has neither any right number any obligation under the provisions of the Partnership Act. Section 13 provides that a partner is number entitled to receive remuneration for taking part in the companyduct of the business. The partners are entitled to share equally in the profits earned and shall companytribute equally to the losses sustained by the firm. Where a partner is entitled to interest on the capital subscribed by him, such interest shall be payable only out of profits. A firm has to indemnify a partner in respect of payments made and liabilities incurred by him in the ordinary and proper companyduct of business and in doing such act, in an emergency for the purpose of protecting the firm from any loss as would be done by a person of ordinary prudence under similar circumstances. The partner has also a duty to indemnify for any loss caused to the firm by his willful neglect in the companyduct of the business of the firm. All these provisions relating to mutual rights and liabilities are only applicable to the individual partners who are members of the firm. There is numberway that an HUF can intrude into the relationship created by a companytract between certain individuals. The only right of the HUF is possibly to call upon its numberinee partner to render accounts for the profits that he has made from the partnership business. But that is something between the numberinee and the HUF with which the partnership is number companycerned. The specific provision in Section 13 of the Partnership Act that a partner is number entitled to receive any remuneration for taking part in the companyduct of the business has been interpreted to mean that every partner is bound to attend diligently to the business of the firm. For doing his duties he cannot charge his companyartners any sum or remuneration whether in the shape of salary, companymission or otherwise on account of the trouble taken by him in companyducting the partnership business. There, however, can be a special companytract to the companytrary in which case, the provisions of that companytract will prevail. Section 40 b of the Income Tax Act will apply even when there is such a special companytract. Any companymission paid by a firm to its partner will number be permitted as deduction from the business income of the firm. If a claim is made by a partner that he is representing an HUF or any other body of persons then the position in law will number be any different. The HUF is number and cannot be a partner in a partnership firm. The remuneration or the companymission that is paid to the partner cannot be claimed to be a remuneration or companymission paid to the HUF. The Partner may be accountable to the family for the monies received by him from the partnership. But in the assessment of the firm, the partner cannot be heard to say that he has number received the companymission as a partner of the firm but in a different capacity. We were referred to two decisions of this Court on this point, Brij Mohan Das Laxman Das V. CIT, 223 ITR 825 and Suwalal Anandilal Jain v. Commissioner of Income Tax, 224 ITR 753. Both the cases dealt with payment of interest to a partner who had joined the firm in a representative capacity. Section 40 b prohibits deduction on account of payment of interest, salary, bonus or remuneration by a firm to any partner of the specifically providing that where an individual was a partner in a firm in a representative capacity for and on behalf of any other person, the interest paid by the firm to such individual shall number be taken into account for the purpose of clause b of Section 40. This Court held that in view of this Explanation, when a Karta of an HUF had joined a firm representing his HUF and had made deposits in the firm in his individual capacity, the interest paid to him companyld number be disallowed by reason of the Explanation II added to Section 40 b of Income Tax Act, 1961. It was further held that the explanation was only clarificatory. It is difficult to agree with that proposition because the Explanation was added by the Taxation laws Amendment Act, 1984 with effect from 1.4.1985, i.e., from the assessment year 1985-86. By adding the Explanation, the legislature altered the law prospectively on and from 1.4.1985. If what was companytained in the Explanation was already the law in force, then giving effect to the Explanation from 1.4.1985 does number make any sense. However, in the case before us, numberquestion of payment of any interest is involved. A companymission was paid by the firm for the services rendered by the partner. Such companymission cannot be paid because of the provisions of Section 13 of the Partnership Act in the absence of a special companytract. Even if a special companytract exists, Section 40 b of the Income Tax Act prohibits allowance of such companymission as deduction from the business income of the firm. The argument that Rashiklal had joined the firm Rashiklal Company number as an individual but in a representative capacity overlooks the fact that the Partnership Rashiklal Company is a companypendious way to describe the individuals who are partners of the firm. The other partners of the firm have a companytractual relationship with Rashiklal only. Section 40 b categorically disallows any deduction of payment of companymission to a partner . The position of a person belonging to an HUF who has joined a firm on behalf of the family has been explained in Mullas Hindu Law, Sixteenth Edition, page 265- Not all members of the joint family, but only such of its members as have, in fact, entered into partnership with the stranger, become partners. The manager, numberdoubt, is accountable to the family, but the partnership is exclusively one between the companytracting members including the manager and the stranger. Such a partnership would be governed by the provisions of the Indian Partnership Act, 1932, with the result that if the manager died, the partnership would be dissolved on his death. Under the Income Tax Act, 1961, firm, partner and partnership have been given the same meaning as assigned to them in the partnership Act. But the expression Partner has been extended to include any person who, being a minor, has been admitted to the benefits of a partnership. Therefore, there is numberscope for any argument that even though under the Indian Partnership Act, an HUF number being a person cannot ba partner, but the payment of companymission to the numberinee partner will tantamount to payment to the HUF and therefore, such payment will number companye within the mischief of Section 13 of the Partnership Act or Section 40 b of the income Tax Act. To repeat what has been stated in Mullas Hindu Law, only the members who have entered into partnership are to be regarded as partners. The position of the other members is numberhigher than sub-partnership. The application for registration of a firm has to be a made under Section 184 of the Income Tax Act. It is specifically provided that 1 the partnership must be evidenced by an instrument in writing 2 the individual shares of partners must be specified in that instrument 3 the application for registration shall be signed by all the partners. The very fact that individual shares of the partners have to be specified and that such partners must personally sign the partnership deed and also the application for registration go to show that even if a person joins a firm as a representative of an HUF or any other body or association, within the firm his position is that of an individual. He may have an agreement with a third party to divide the profits received from the firm, but that agreement does number bind the firm number does it alter the position or the Income Tax Act. This aspect of the matter was explained by Subba Rao, J. as his Lordship, then was in the case of Commissioner of Income Tax v. Bagyalakshmi Co. 55 ITR 660 in the following words A partnership is a creature of companytract. Under Hindu Law a joint family is one of status and right to partition is one of its incidents. The income-tax law gives the Income of a person in the manner provided by the Act. Except where there is a specific provision of the Income-tax Act which derogates from any other statutory law or personal law, the provision will have to be companysidered in the light of the relevant branches of law. A companytract of partnership has numberconcern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the Karta of a joint Hindu family he may be a trustee he may enter into a sub-partnership with others he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership, he functions in his personal capacity qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners number the other partners can do so against the said third parties. This judgment given by a bench of three Judge of this Court is a companyplete answer to the argument advanced on behalf of the assesses. A partner does number act in a representative capacity in the partnership. He functions in his personal capacity like any other partner. The provisions of the Partnership Act and the Income Tax Act relating to partners and partnership firms will apply in fully force in respect of such a partner. If any remuneration is paid or a companymission is given to a partner by a partnership firm, Section 40 b will apply even if the partner has joined the firm as a numberinee of an HUF . The Hindu Undivided family or its representative does number have any special status in the partnership Act. Although the partnership firm is number a legal entity, it has been treated as an independent unit of assessment under the Income Tax Act. The assessment of a firm will have to be made strictly in accordance with the provisions of the income Tax Act. The assessment of a firm will have to be made strictly in accordance with the provisions of the Income Tax Act. The law has to be taken as it is. Section 40 b applies to certain payments made by a firm to its partners. Neither the firm number its partners can evade the tax law on the pretext that although in law he is a partner but in reality he is number so. He may have to hand over the money to somebody else. That may be his position qua a third party. But the firm has numberhing to do with it. It has paid the companymission to one of its partners. it cannot get any deduction in its assessment for that payment because of Section 40 b of the Act expressly prohibits such deduction. The basic principle that a firm is a companypendious mode of describing the persons companystituting the firm who are its partners. The partner may be under an obligation hand over the monies received by him to somebody else by virtue of a sub-contract or any other arrangement. That will number change the character of the payment by the firm to its partner or the status of the partner in the firm . The firm is number entitled to get any deduction on account of payment of Commission to a partner merely because the partner has an obligation to share the money with somebody else. So far as the firm was companycerned, the companymission was paid to one of the partners in his personal capacity. The provisions relating to assessment of the firm should number be companystrued in a way to defeat its object. Section 40 b forbids deduction of any amount paid by way of companymission to a partner. In the instant case, Rashiklal is a partner of the firm Rashiklal and Company.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 405 of 1956. Appeal from the judgment and decree dated September 11, 1952, of the Calcutta High Court in Appeal from original Decree No. 162 of 1949. C. Setalvad, Attorney General for India, B. Sen, S. N. Mukherji and B. N. Ghosh, for the appellant. C. Chatterjee, J. C. Ghose, S. P. Ghose, and P.K. Chatterjee, for the respondents. 1962. January 19 The judgment of the Court was delivered by RAGHUBAR DAYAL J.-This appeal on a certificate granted by the High Court at Calcutta, raises the question whether the person with whom a resumed invalid Lakhraj revenue free land was permanently settled has rights in the sub-soil minerals or number. The necessary facts are briefly these- The plaintiffs are the proprietors of the land in suit in C. S. Khatian No. 611 and Sub- Khatians Nos. 612 and 613 of village Sripur in Touzi No. 2597 of the Burdwan Collectorate. The Maharaja of Burdwan is the proprietor of the lands in village Sripur appertaining to Touzi No. 12 of Burdwan Collectorate. He let out those lands to the Pals and Goswamis of Sripur in Putni right. The Putnidars also took companyl mining lease of those lands from the Maharaja and, thereafter, both the Maharaja and the Putnidars granted the companyl mining lease of those lands to one P. K. Chatterji of Ikrah who, in his turn, granted a sublease of the same to Messrs. Lodna Colliery Co. Ltd., the predecessor-in-interest of the defendant companypany, the Lodna Colliery Co. 1920 Ltd. A portion of the lands in suit subsided and on enquiry the plaintiffs found that the defendant companypany had cut away a large quantity of the underground companyl from the lands, in suit. It is on account of such unjustified companyduct of the defendant companypany that the plaintiffs, on the basis of their proprietary right, used for the recovery of damages for companyl wrongfully taken away by the defendant from the land in suit and for other wrongs. The defendant companypany companytested the suit and denied the plaintiffs alleged rights on the ground, inter alia, that the plaintiffs had numbertitle to the sub-soil of the land in suit and companysequently to the companyl. The companytention really is that the land in suit had been permanently settled with the plaintiffs after it had been resumed as invalid Lakhraj land and that such settlement companyferred numberbetter rights than what they originally possessed on account of the land in suit being granted to their predecessors-ininterest under Brahmottar and Debutter grants, the grantees under which had numberrights in the sub-soil of the land granted. The Trial Court held that the invalid Lakhraj tenure in the land in suit in favour of the predecessors-in-interest of the plaintiffs was resumed by the Government under the provisions of Regulation II of 1819 and, thereafter, was permanently settled with them at the fixed revenue and that therefore the plaintiffs had right to the minerals under the soil of the land settled with them. It accordingly decreed the suit in part and the decree was companyfirmed by the High Court. It is companytended for the appellant that the person with whom resumed invalid Lakhraj land had been settled has numberrights in the sub-soil. The respondents rely on the provisions of the Regulation enacted by the Governor-General in Council in support of their claim to the sub-soil in such land held by them. The Governor-General in Council passed a number of Regulation on May 1, 1793. We shall first companysider Regulation XIX of 1793. Regulation XIX of 1793 was made for reenacting with modifications the Rules passed by the Governor-General in Council on December 1, 1790, for trying the validity of the titles of persons holding, or claiming a right to hold, lands exempted from the payment of revenue to Government, under grants and for determining the amount of the annual assessment to be imposed on lands so held which might be adjudged or become liable to the payment of public revenue. The preamble makes it clear that the Regulation was creating an agency for determining the title of the proprietors of land who claimed to hold it free from the liability to pay revenue on account of certain grants, that from time to time the British Government has declared all grants for holding land exempt from the payment of revenue without their sanction since the date of the accession of the East India Company to the Diwani on August, 12, 1765, illegal and void and that numbersuch exempted land was to be made subject to the payment of revenue until the titles of the proprietors had been adjudged invalid by a final judicial decree. It is to be numbericed that the persons who laid claims to hold the land exempt from the payment of revenue were referred to as proprietors. Section II, Clause First, deals with the grants of alienated land made previous to the 12th August 1765, the date of the accession of the East India Company to the Diwani, and lays down that such grants would be deemed valid provided the grantee actually and bonafide obtained possession of the land or granted and the land had number been subsequently rendered subject to the payment of revenue. Section III, Clause First, declares invalid all grants for holding land exempt from the payment of revenue made between the 12th August, 1765 and 1st December, 1790 by any authority other than that of Government and which had number been companyfirmed by Government or by any officer empowered to companyfirm them. Section IV is significant for our purpose and reads This Regulation, as far as regards lands alienated previous to the 1st December 1790, respects only the question whether they are liable to the payment of revenue or otherwise. Every dispute or claim regarding the proprietary right in lands alienated previous to that date, and which, in companyformity to this Regulation, may become subject to the payment of revenue, is to be companysidered as a matter of a private nature to be determined by the Courts of Diwani Adalat in the event of any dispute or claim arising respecting it between the grantee and the grantor or their respective heirs or successors. The grantees, or the present possessors, until dispossessed by a decree of the Diwani Adalat, are to be companysidered as the proprietors of the lands with, the same right of property therein as is declared to be vested in proprietors of estates or dependent taluks, according as the land may exceed or be less than one hundred bighas, specified in sections 6, 7 and 21, subject to the payment of revenue, and they are to execute engagements for the revenue, with which their lands may be declared chargeable, either to Government or to the proprietor or farmer of the estate in which the lands may be situated, or to the officer of Government, according as the revenue of the estate in which the lands may be situated may be payable by the proprietor or a farmer, or companylected khas under the rules for the decennial settlement. If by the decision of the Diwani Adalat the proprietary right in the land shall be transferred, the person succeeding thereto is in like manner to be responsible for the payment of the revenue assessed or chargeable thereon. It is clear from this section that the Regulation simply dealt with the question about the liability of certain lands to the payment of revenue and provided that any dispute about proprietary right between the grantees and the grantors would be a matter of a private nature to be decided by the Courts of Diwani Adalat. It, however, definitely provides that the grantees or the then possessors of land, until dispossessed by a decree of the Diwani Adalat, are to be companysidered as the proprietors of the lands with the same right of property therein as is declared to be vested in proprietors of estates or dependent taluks according as the land may exceed or be less than one hundred bighas subject to the payment of revenue. Such proprietors of land were to execute engagement for revenue with which their lands may be declared chargeable, either to the Government or to the proprietor or farmer of estates in which the lands be situated. The grantees of invalid Lakhraj lands therefore had the same right of property in that land subject to the payment of revenue, as had been declared to be vested is the proprietors of estates. If the zamindars, the proprietors of estates, have rights number only over the surface of the land but in the subsoil as well, the persons whose grants had been held to be invalid and who were held to be liable to pay land revenue also possessed right in the sub-soil of the land settled with them. Now, Regulation VIII of 1793, also passed on May 1, 1793, re-enacted with modifications and amendents the Rules for the Decennial Settlement of the public revenue payable from the lands of the zemindars, independent talukdars, and other actual proprietors of land in Bengal, Bihar and Orissa, passed for those Provinces respectively on September 18, 1789, November 25, 1789 and February 10, 1790, and subsequent dates. Section IV provided that the settlement, under certain restrictions and exceptions specified in the Regulation, shall be companycluded with the actual proprietors of the soil, of whatever denomination, whether zemindars, talukdars or chaudhris. It follows that the zemindars with whom settlement took place, were recognized as the actual proprietors of the soil. The settlement of revenue so made was made permanent by s. IV of Regulation I of 1793. Regulation I of 1793 enacted into a Regulation certain Articles of a Proclamation dated March 22, 1793. Section I of this Regulation states that the various articles of the Proolamation were enacted into a Regulation and that those articles related to the limitation of public demand upon the lands, addressed by the Governor-General in Council to the zemindars, independent talukdars and other actual proprietors of land paying revenue to Government in the Provinces of Bengal, Bihar and Orissa. By Section IV it was declared to the zemindars, independent, talukdars and other actual propietors of land, with or on behalf of whom a settlement had been companycluded under the Regulations mentioned earlier, that at the expiration of the term of settlement numberalteration would be made in the assessment which they had respectively engaged to pay, but that they and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever. The preamble to Regulation II of 1793, which abolished the Courts of Mal Adalat or Revenue Courts and transferred the trial of suits companynizable in those Courts to the Courts of Diwani Adalat, stated, in companynection with the proposed improvments in agriculture As being the two fundamental measures essential to the attainment of it, the property in the soil has been declared to be vested in the landholders, and the revenue payable to Government from each estate has been fixed for ever The property in the soil was never before formally declared to be vested in the landholders, number were they allowed to transfer such righs as they did possess, or raise money upon the credit of their tenures, without the previous sanction of Government. It is thus clear from the above declarations that the zemindars, the proprietors of estates, were recognized to be the proprietors of the soil. Such a view was expressed by the Privy Council also in Ranjit Singh v. Kali Dasi Debi 1 . It was said at page 122 Passing to the settlement of 1793, it appears to their Lordships to be beyond companytroversy that whatever doubts be entertained as to whether before the British occupation the zamindars had any proprietary interest in the lands companyprised within their respective districts, the settlement itself recognizes and proceeds on the footing that they are the actual proprietors of the land for which they undertake to pay the Government revenue. The settlement is expressly made with the zemindars, independent talukdars and other actual proprietors of the soil see Regulation I, s.3, and Regulation VIII., s.4. It is clear that since the settlement the zamindars have had at least a prima facie title to all lands for which they pay revenue, such lands being companymonly referred to as malguzari lands. The right of the zemindars to the sub-soil minerals under their land follows from their being proprietors of the soil and has been recognized in a number of cases between the zemindars and persons holding land under a tenure from them. It has been held in those cases that, in the absence of the right to sub-soil minerals being companyferred on the tenure holder under the terms of the tenure held by him, he does number get any right to them. The first such case is Hari Narayan Singh v. Sriram Chakravarti 1 . The same view was expressed in Durga Prasad Singh v. Braja Nath Bose 2 . In Sashi Bhushan Misra v. Jyoti Prashad Singh Deo 3 Lord Buckmaster said at page 53, with regard to the above two cases These decisions, therefore, have laid down a principle which applies to and companycludes the present dispute. They establish that when a grant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable and transferable, minerals will number be held to have formed part of the grant in the absence of express evidence to that effect. The fact that the tenure was rent free, makes numberdifference to this principle, as held in Raghunath Roy Marwari v. Raja of Jheria 4 . We are therefore of opinion that the right of property of the person with whom resumed invalid Lakhraj land had been settled, being the same as of the zemindars, extends to the sub-soil minerals of the land held by them. Further, the plaintiffs traee their rights to the documents Exhibits 10, 2 and 6 a . Before dealing with them, we may refer to two other Regulations number so far mentioned. Regulation II of 1819 modified the then existing Regulations regarding the resumption of revenue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the same manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but companytains numberhing particular which would affect the determination of the question before us. Exhibit 10 is the Robakari of the Deputy Collector of Burdwan, dated April 15, 1841, with respect to Touzi No. 2597. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-ininterest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, Sitaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land companysisting of Brahmottar land measuring 156 bighas 10 cattahs and the Debutter land measuring 18 bighas 20 cattahs, in all 175 bighas, situated in village Pariharpur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessed to land revenue. Madhusudhan Roy and Sitaram Roy and other defendants claimed right to get settlement because it was the Lakhraj property obtained by their ancestors. The settlement was however made with Manik Chandra Roy on April 19, 1838, as the other defendants did number turn up. Subsequently, Madhusudan Roy applied for settlement jointly with Manik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik Chandra Roy and others with respect to certain area and with Madhusudhan Roy and Sitaram Roy with respect to the rest. On April 15, 1841, Amalnama, Exhibit 2, was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them to pay their respective rents to the persons with whom settlement was made. Exhibit 6 a is certified companyy of settlement khatian No. 611 in respect of village Sripur, relating to Touzi No. 2597, R.S. No. 2416. It describes the interest in the land in suit to be Bajeapti resumed Lakheraj Pariharpur and others. It mentions five persons including the son of Madhusudhan Roy and the sons of Sitanath Roy, to be the proprietors in possession of that interest. It also shows the King Emperor of India as possessing the entire superior interest. It is thus clear that the possessors of the Bajeapti resumed Lakheraj land in suit held it as proprietors under the King Emperor of India. They must companysequently have the same rights which other proprietors like zamindars had. It is however urged for the appellants that the records prior to the resumption proceedings showed the lands in suit to be the Brahmottar and Debutter lands of the predecessors of the plaintiffs and that therefore, in view of the principle of law laid down by the Privy Council in Hari Narayan Singhs Case 1 and the later decisions, they cannot be held to possess rights in the sub-soil in the absence of definite evidence that such rights were companyveyed under those grants. We do number agree with this companytention. The predecessors-in-interest of the plaintiffs held the land from the Government and number on a subordinate tenure from the zamindars and therefore the principle of law as stated in Hari Narayan Singhs Case 1 and later companyfirmed in several decisions by the Privy Council, does number apply to the present case. We are therefore of opinion that the plaintiffs had rightly been held to own and possess the rights the minerals under the land in suit and that the decree in their favour is companyrect.
KURIAN, J. Leave granted. The appellants are before this Court aggrieved by the interim order dated 20.11.2017 passed by the High Court of Manipur at Imphal directing re-verification of the answer scripts of all the candidates who participated in the selection companyducted by the MPSC for Manipur Civil Services. The appellants companytended before this Court that it was number necessary to companyduct an all pervasive inquiry and the same should be limited to the writ petitioners. In view of the above submission, on 11.01.2018, while issuing numberice, the following order was passed by this Court- Signature Not Verified Digitally signed by NARENDRA PRASAD Date 2018.04.16 Issue numberice. 170933 IST Reason For the time being, the scope of inquiry, as directed by the learned Single Judge of the High Court, shall be limited only to the answer sheets of the candidates who have approached the High Court. Thereafter, this Court directed the Committee appointed by the High Court to submit a Report to this Court. In the Report filed by the Committee, it is stated that there had been quite a few irregularities. In that background, on 23.03.2018, this Court passed the following order- The High Court of Manipur has forwarded a report of the Committee, which companyducted verification of the answer sheets of the petitioners. It is reported that there have been quite a few irregularities. If that be so, Sh. Prashant Bhushan, learned companynsel appearing for the intervenors, prays that in view of the report of the Committee, reverification may be companyducted in respect of other candidates, since the total number of candidates are only 1068. In view of the report of the Committee, whether any further verification is to be companyducted at all, is itself a question. The learned companynsel appearing for the Manipur Public Service Commission seeks two weeks time to file response to the report of the Committee and on further companyrse of action. Post on 12.04.2018. Heard Mr. Tushar Mehta, learned Additional Solicitor General of India appearing for the State of Manipur, Mr. V. Giri, learned senior companynsel appearing for the MPSC, Mr. Debel Kumar Banerjee, learned senior companynsel appearing for the appellant and Mr. Prashant Bhushan, learned companynsel appearing for the party respondents.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1212 of 1984. Appeal by Special leave from the Judgment and order dated the 20th October, 1983 of the Bombay High Court in W. Appeal No.779 of 1983. R.Mridul, G. Vishwanath Parijat Sinha, for the Appellant. Ram Jethmalani Soli J. Sorabjee, M.N. Shroff, Talegankar B.V. Desai. for the Respondents. The Judgment of the Court was delivered by BHAGWATI, J. Special Leave Granted. This appeal by special leave raises a short question of law as to whether an order of requisition of premises can be companytinued for an indefinite period of time or it must necessarily be of temporary duration. The facts giving rise to this appeal are few and may be briefly stated as follows One Rukmanibai was the owner of a building bearing House No. 65, Police Station Road, Ville Parle West, Bombay. The ground floor of this building companyprised of a flat which was in the occupation of one N.C. Shah as a tenant and since C. Shah was going to vacate the flat, Rukmanibai gave intimation of the proposed vacancy to the State Government and requested the State Government to allot the premises to the appellant who was her nearest relative. The appellant also addressed a letter dated 12th March 1951 to the Chief Officer of the Accommodation Department of the Government of Bombay requesting that he should be allotted the flat which was going to be vacated by N.C. Shah. It appears however that the request of the appellant was turned down by the State Government and ultimately the flat was requisitioned by an order dated 9th April 1951 made by the State Government in exercise of the powers companyferred under clause a of sub-section 4 of section 6 of the Bombay Land Requisition Act 1948. This order of requisition did number set out the public purpose for which the flat was requisitioned. Now curiously enough, though it was decided by the State Government number to allot the flat to the appellant and his application for allotment was specifically reacted the Assistant Controller of Accommodation passsed an order on 25th April 1951 allotting the requisitioned flat to the appellant and pursuant to the order of allotment, the appellant entered into occupation of the flat. The appellant thereafter paid rent to Rukmanibai from time to time but the payment of rent was very irregular and the appellant companymitted several defaults in payment of rent with the result that number less than seven owners had to be passed by the Accommodation Department of the Government of Bombay directing the appellant to vacate the flat because his chronic defaults. Ultimately, however, each time numberaction for eviction was taken by the Controller of Accommodation, presumably because the appellant must have paid up the rent. It is significant to numbere that in the year 1964 the appellant requested the Controller of Accommodation to derequistion the flat and to allow him to become direct tenant of Rukmani Bai but his application was rejected by letter dated 25th March 1964. The appellant also thereafter in the year 1979 applied to the Controller of Accommodation for sanction to erect a kitchen platform in the flat but this application was turned down by a letter dated 20th March 1979 addressed by the Controller of Accommodation. The appellant throughout this period companytinued to occupy the flat as an allottee under the order of requisition and paid rent to Rukmanibai from time to time. thought irregularly. The building in which the requisitioned flat was situate, was purchased by the 3rd respondent from Rukmanibai on 30th May 1973. The 3rd respondent, after purchase of the building, requested the State Government to derequisition the flat inasmuch as the allotment of the flat in favour of the appellant companyld number be for a public purpose. The State Government did number pay any heed to this request of the 3rd respondent with the result that the 3rd respondent was companystrained to file writ petition No. 1210 of 1980 in the High Court of Bombay challenging the validity of the order of requisition and companytending that it companyld number survive for such a long period of time and the State Government was therefore bound to derequisition the flat. One of the grounds on which the validity of the order of requisition was challenged was that the order of requisition did number set out the public purpose for which it was made. This ground of challenge was negatived by the High Court and, in our opinion, rightly, because it is number necessary that the order of requisition must explicitly set out the public purpose for which it is made. The only requirement of the law is that the requisitioning must be made for a public purpose and so long as there is a public purpose for which an order of requisition is made, it would be valid irrespective whether such public purpose is recited in the order of requisition or number. It has, in fact, been so held by this Court in State of Bombay v. Bhanji Munji Anr. 1 where Bose, J. speaking on behalf of the Court observed In our opinion, it is number necessary to set out the purpose of the requisition in the order. The desirability of such a companyrse is obvious because when it is number done, proof of the purpose must be given in other ways and that exposes the authorities to the kind of charges we find here and to the danger that the companyrts will companysider them well founded. But in itself an omission to set out the purpose in the order is number fatal so long as the facts are established to the satisfaction of the companyrt in some other way. The order of requisition companyld number therefore be successfully attacked on the ground that it did number set out the public purpose for which it was made. But, as pointed out by Bose, J. in the above dassage quoted from this judgment in Bhanji Munjis case supra , the State Government would have to show that the order of requisition was made for a public purpose and the necessary facts showing the public purpose for which the order of requisition was made would have to be established by the State Government to the satisfaction of the companyrt. The High Court held in the present case that numbermaterial was placed before it to show what was the public purpose for which the order of requisition was made and in fact, there was numberdenial on the part of the State Government or the appellant of the averment made on behalf of the 3rd respondent that the appellant was neither a government servant number a homeless person. This view taken by the High Court appears to be well-founded and it is number possible to hold on the material placed before us that the order of requisition was made for a public purpose. But it was companytended on behalf of the appellant that even if the order of requisition was invalid as having been made for a purpose other than a public purpose, the 3rd respondent was number entitled to challenge the same after a lapse of over 30 years and the writ petition should therefore have been dismissed by the High Court. Now if the only ground on which the order of requisition was challenged in the writ petition was that it was number made for a public purpose and was therefore void, perhaps it might have been possible to successfully repel this ground of challenge by raising an objection that the High Court should number have entertained the writ petition challenging the order of requisition after a lapse of over 30 years. But we find that there is also another ground of challenge urged on behalf of the 3rd respondent and that is a very formidable ground to which there is numberanswer. The argument urged under this ground of challenge was that an order of requisition in the present case therefore ceased to be valid and effective after the expiration of a reasonable period of time and that it companyld number, under any circumstances, companytinue for a period of about 30 years and hence it was liable to be quashed and set aside or in any event the State Government was bound to revoke the same and to derequisition the flat. This companytention has, in our opinion, great force and must be sustained. There is a basic and fundamental distinction recognised by law between requisition and acquisition. The Constitution itself in Entry 42 of List III of the Seventh Schedule makes a distinction between acquisition and requisitioning of property. The original Article 31 clause 2 of the Constitution also recognised this distinction between Compulsory acquisition and requisitioning of property. The two companycepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving numberhing to the former. Vide Observations of Mukherjee, J. in Chiranjitlals case. The companycept of acquisition has an air of permanence and finality in the there is transference of the title of the original holder to the acquiring authority. But the companycept of requisition involves merely taking of domain or companytrol over property without acquiring rights of ownership and must by its very nature be of temporary duration. If requisitioning of property companyld legitimately companytinue for an indefinite period of time, the distinction between requisition and acquisition would tend to become blurred, because in that event for all practical purposes the right to possession and enjoyment of the property which companystitutes a major companystituent element of the right of ownership would be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over the property without acquiring it and paying full market value as companypensation under the Land Acquisition Act, 1894. We do number think that the government can under the guise of requisition companytinued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power companyferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, numberorder can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premisses being number transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and companytinue the requisitioning indefinitely. Here in the present case the order of requisition was made as far back as 9th April 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person, it cannot be allowed to companytinue for such an inordinately long period as thirty years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is number necessary for us to decide what period of time may be regarded as reasonable for the companytinuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and circumstances of each case but there can be numberdoubt that whatever be the public purpose for which an order of requisition is made the period of time for which the order of requisition may be companytinued cannot be an unreasonably long period such as thirty years. The High Court was, therefore, in any view of the matter, right in holding that in the circumstances the order of requisition companyld number survive any longer and the State Government was bound to revoke the order of requisition and deregulation the flat and to take steps to evict the appellant from the flat and to hand over vacant possession of it to the 3rd respondent. There was also one other companytention urged on behalf of the appellant in a desperate attempt to protect his possession of the flat and that companytention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as as his possession of the flat is companycerned. This companytention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did number have the effect of putting an end to the order of requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay companypensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay companypensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying companypensation to the State Government and the State Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or in any event implied assent of the State Government, the order of requisition companyld number cease to be valid and effective. It did number matter at all whether the appellant described the amount paid by him to Rukmanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and numberpayment of an amount described as rent companyld possibly alter the nature of his occupation of the flat or make him a tenant of Rukmanibai in respect of the flat. We are therefore of the view that the High Court was right in allowing the writ petition and directing the State Government and the Controller of Accommodation to deregulation the flat and to take steps to evict the appellant and to hand over vacant and peaceful possession of the flat to the 3rd respondent. We accordingly dismiss the appeal, and companyfirm the order passed by the High Court but in the circumstances of the case, the appellant shall number be evicted from the flat until 28th February, 1985, provided the appellant files an undertaking in this Court within two weeks from today that he will vacate the flat and hand over its vacant possession to the 3rd respondent on or before that date. There will be numberorder as to companyts of the appeal.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 376 to 379 of 1960. Appeal from the judgment and order dated September 18, 1958, of the Calcutta High Court in Income-tax Reference No. 101 of 1954. Mitra, S. N. Mukherjee and B. N. Ghosh, for the appellants. C. Setalvad, Attorney-General of India, R. Ganapathy Iyer and P. D. Menon for the respondents. 1961. August 31. The Judgment of the Court was delivered by HIDAYATULLAH, J. -These are four appeals filed by the assessee Company Karanpura Development Co., Ltd. in respect of two assessment years, 1949-50 and 1950-51 and two chargeable accounting periods under the Business Profits Tax Act, January 1, 1948, to December 31, 1949. By these appeals, the assessee Company impugns the judgment of the High Court of Calcutta dated September 18, 1958, answering a companymon question whether on the facts and in the circumstances of the case, the sums received as salami by the asseseee for granting sub-leases were trading receipts in its hands and the amount of profit therein is assessable under the Indian Income-tax Act in the affirmative and against the assessee Company. The case was certified to this Court by the High Court under s. 66A 2 of the Incometax Act presumably also read with s. 19 of the Business Profits Tax Act. The facts of the case are as follows in 1915, the Court of Wards representing the proprietor of the Ramgarh Estate granted a prospecting licence to Messrs. Bird Co., of an area of companyl-bearing lands described as the Karanpura Coal Fields. The, licence was for 12 years but was renewable for .another term of 12 years. The licence reserved to the licensee the right to take companyl mining leases of .the Karanpura Coal Fields or any part thereof. The licence was transferable. The assessee Company was incorporated in 1920. The objects for which the assessee Company was formed, inter alia, were 1 to purchase and acquire from the owners or proprietors thereof or other persons interested therein underground companyl mining, relative rights of and in the Karanpura Coal Fields in the Province of Bihar and Orissa at such price or prices for such period or periods and generally upon such terms and companyditions as the Directors may determine and for that purpose to adopt, enter into and carry into effect all companytracts, agreements and other documents, and in particular to enter into and carry into effect, with or without modifications, either before or after the, execution thereof, the agreement referred to in Article 3 of the Companys Articles of Association. To sell, dispose of and otherwise deal in all such underground companyl mining and relative rights upon such terms and companyditions as may appear for the benefit of the companypany. To carry on the trades or businesses of companyliery proprietors, companyl merchants, miners, smelters, engineers, limeburners and manufacturers of brick, tile, cement, lime, companye and other bye-products of companyl in all their respective branches. x x x To prospect for, crush, win, get quarry, smelt, calcine,, refine, dress, amalgamate, manipulate and prepare for market companyl, ore metal, and mineral substances of all kinds, and to carry on any other prospecting, mining or metallurgical operations, which may seem companyducive to any of the companypanys objects and to buy, sell, manufacture, and deal in minerals, plants, machinery implements, companyveniences, provisions, and things capable of being used in companynection with prospecting, mining or metallurgical operations or required by workmen or others employed by the companypany. x x x To acquire by purchase, lease, exchange, or otherwise, lands, buildings, and heraditaments of any tenure or description and any estate or interest therein, and any rights over or interest therein, and any rights over or companynected with land, and either to retain the same for the purpose of the companypanys business or to turn the same to account as may seem expedient. x x x To sell, improve, manage develop, exchange lease, mortgage, dispose of, turn to account, or otherwise deal with all or any part of th property and rights of the companypany. On May 30, 1921, Messrs. Bird and CO., assigned rights under the prospecting licence to the assessee Company. The assessee Company then acquired from time to time diverse companyl mining leases over areas aggregating 20,000 standard bighas. The assessee Company developed these companyl fields by providing means of companymunication, etc., and then subleased them to companylieries and other companypanies. In the head leases which the assessee Company had obtained, the term was 999 years. In the sub-leases the term was the balance of the period minus 2 days. Apart from obtaining head leases, developing the companyl fields and subleasing its rights, the assessee Company admittedly did number do any business. It never worked the companyl fields with a view to raising companyl number did it acquire or sell companyl raised by the sub-lessees. As a companydition of the acquisition of the head leases, the assessee Company had paid salami at the rate of Rs. 40 per standard bigha, and had agreed to pay, royalty at certain rates. From the sub-lessees, the assessee Company charged salami at the rate of Rs. 400 per standard bigha and royalties at higher rates. For the assessment year, 1949-50, the assessee Company realised Rs. 19,14,035 as salami for the mining subleases granted in the relevant account year, and in the assessment year, 1950-5 1, it realised Rs. 3,96,000 on the same account. We are number companycerned with the income of assessee Company arising from the enhanced royalties, because the assessee Company admitted that that income would be taxable. The assessee Companys companytention that the excess amount realised by way of increased salami was on capital account and companyld neither be included in the assessable income for purposes of incometax number in the profits for purposes of business profits tax ,as rejected. Two orders in the income-tax cases and two in the business profits tax cases were passed on January 30, 1952. The assessee Company filed four appeals before the Appellate Assistant Commissioner, who dismissed them on March 31, 1953. Four appeals were then filed before the Income-tax Appellate Tribunal, Calcutta Bench, but were dismissed by a companymon order dated December 31, 1953. The Appellate Tribunal was then moved for a reference in all the four appeals, and the companymon question to which we have referred, was raised and referred by the Tribunal with the result already indicated. The Tribunal as well as the High Court held that in acquiring the head leases and in granting the sub-leases, the assessee Company was carrying on a business within its Memorandum of Association and the increased salami received from the sublessees represented profits of that business liable to be included in the assessable income for incometax purposes and in the profits, for purposes of the business profits tax. The case of the assessee Company was that it was holding its capital asset namely, the mining leases through its sub-lessees during the relevant accounting years, and its activities were the management of the leasehold right, selection of sub-lessees, companylection of rents or royalties which did number amount to the carrying on of a business. In return for the charge of salami the assessee Company transferred only the general right to the benefits under the leases, and that was a realisation of its capital within the ruling of the Privy Council in Kamakshya Narain Singh v. companymissioner of Income-tax 1 In transferring this general right, it was companytended, the position of the assessee Company was indistinguishable from of that a land owner, who companylected rents. All these arguments were advanced before the Tribunal as well as before the High Court but were number accepted. In these appeals, we are required to companysider whether the companyclusions reached by the High Court and the Tribunal are right. The Income-tax Act puts the tax on income profits and gains irrespective of the source from which they are derived. Section 3 of the Act provides, inter alia, that income-tax shall be charged on the, total income of every companypany. Under s.4 1 , total income includes all income, profits or gains from whatever source derived, subject to certain companyditions about residence, etc., with which we are number companycerned. Section 6 then enumerates six heads of income chargeable to income-tax. Two of these heads are a income from property and b profits and gains of business, etc. The several heads into which income is divided under the Income-tax Act do number make different kinds of taxes. The tax is always one but it may arise from different sources to which the different rules of companyputation have to be, applied. The manner of this companyputation is indicated in the sections that follow. Before income profits or gains can be brought to companyputation they have to be assigned to one or more heads. These heads are in a sense exclusive of one another and income which falls within one head cannot be assigned to, or taxed under another head. 1 1943 L.R. 70 I.A. 180. The words income has number been defined in the Income-tax Act. In the definition which is enacted certain receipts are said to be included in the companycept of income but it does number say that income itself means. Certain working definitions have been given by Courts, chief among which is by the Judicial Committee in Commissioner of Income-tax v. Shaw Wallace Co. 1 where it was held that by income, is meant a periodical. monetary receipt, number in the nature of a windfall but companying in with some sort of regularity or expected regularity. In business, it was also pointed out, income was the produce of something loosely spoken of as capital. This income in business is profit when is earned by a process of production, or, in other words, by the companytinuous exercise of an activity. These observations of the Privy Council were quoted with approval by this Court in many cases and recently in Senairam Doongarmall v. Commissioner of IncometaX 2 . In the last case, it was also pointed out that the addition of the words profits and gains in the phrase income, profits and gains used in the Income-tax Act does number restrict the meaning of the word income by implication, and that the whole expression is income writ large. But whatever income may include or mean it is However, clear that it does number include fixed capital or the realising of fixed Capital by turning it into some other form of capital or money. Fixed capital is something which the owner keeps in his possession but turns to profit circulating capital However, is turned over in the process of profit making. It may. sometimes happen that in the process of production, fixed capital may be companysumed or wasted, but that is a reduction of capital. and number an expenditure in the business claimable as an allowance in the reduction of assessable income in the shape of profits of the business The profit-, of a business are calculated under s.10 of the Act. Under that section, tax is payable 1 1932 L.R. 59 I.A. 206. 2 1962 1 S.C.R. 257. by a companypany under the head ,,profits and gains of business in respect of the profits or gains of any business carried on by the companypany. In s. 2 4 of the Indian Income-tax Act, business has been defined to include any trade, companymerce or any manufacture or any adventure or companycern in the nature of trade., companymerce.or manufacture. In all cases where an assessee questions the finding that assessable profits or gains have been made in a business it is customary to find the assessee questioning that a business has at all been carried on, and further that the return is on the capital account and number revenue. This well-trodden path was also followed in this case, and the assessee Company has raised three companytentions. It companytends that the return to it as salami represented merely a capital return because in acquiring the mining lease the assessee Company acquired two distinct rights a the general right to the benefits under the leases for which companysideration was the salami, and b the right to carry on business in companyl. According to the assessee Company, it never exercised the second right and when it parted with the first right, it only realised its capital. This is the first companytention. The assessee Company next companytends that there is numberdifference between an individual owning properties and selling them, on the one hand, and a companypany owning mining leases and issuing sub-leases, on the other, because in either case, there are numberprofits or gains of business, if numberbusiness is done. Lastly, it companytends that even if the assessee Company was carrying on business, it was number carrying on a trading activity but its activities companysisted in merely companylecting rents or royalties which taken with the performance of other necessary and allied activities companyld number amount to the carrying on of a business resulting in increased salami as profits of the business. No doubt, in Kamakshya Narain Singh v. Commissioner of Income-tax 1 the Privy Council 1 1943 L.R. 70 I.A. 180. made a distinction between sums received as royal. ties and Salami by the proprietor of the Ramgarh, Estate holding the former to be income from other sources within s. 12 of the Act, and the latter as a payment on capital account but the, facts were different. Since the case is relied upon by the assessee Company, it is necessary to companysider it in some detail. The Court of Wards acting on behalf of the proprietor of Ramgarh Estate, granted leases for 999 years to certain companypanies including the assessee Company. Under the terms of the leases the lessees agreed to pay to the lessors royalties at certain rates per ton of different kinds,of companyl raised and a fixed salami or premium,, the royalty being subject always to a minim annual sum. It was companytended on behalf of the proprietor that numbere of the, sums was taxable as income. The companytention of the proprietor with regard to the royalty per ton and the minimum royalty was number accepted but with regard to the salami it was The Judicial Committee observed The salami has been, rightly in their Lordships opinion, treated as a capital It is a single payment made for the acquisition of the right of the lessees to enjoy the benefits granted to them by the lease. That general right may properly be regarded as a capital asset, and the money paid to purchase it may properly be held to be a payment, on capital account. In that case, the general right was, in effect sold by the proprietor of the Estate. In his bands as a landowner, the companyl bearing lands were property and when lie sold the right to the lessees to enjoy the benefits, he sold his property but he was number doing business. The proprietor parted with the, general right, but in his bands it was number the stocking-trade of any business. In his hands the lands or the rights in. respect of them were. property, but that character did number necessarily companytinue in the hands of his lessees. If the lessees treated these lands, so to speak, as the stock-in-trade of their business and turned them to account at a profit, the profit so gained may legitimately be a companysidered as the profit of business. It is companytended that there is numberdifference between a landowner and a companypany which owns land or leases in land, and reliance is placed upon the case of Balgownie Land Trust Ltd. v. Commissioner of Inland Revenue 1 . In that case, the owner.of an estate left his landed estate to the trustees with a direction to realise. The trustees were unable to dispose of the land on the market and formed a companypany to deal in real property to which the estate was transferred in exchange of shares allotted to the beneficiaries. The companypany then acquired other properties as well, and received rents which were paid as dividends and then sold the newly purchased property and parts of the estate making a profit. It was held that the profits from the sales were profits of a trade or business. The actual decision is against the assessee Company, but what is relied upon is a passage in the judgment of the Lord President Clyde in the Court of Session Scotland at p. 692, where it is observed One is number, however, entitled to infer from the circumstances that a companypany is professedly formed with trading purposes in view and for trading objects that the transactions in which it engages necessarily companystitute a trade or business because it does number follow from the fact that it has objects and powers such as 1 have indicated that it actually uses them for the purpose of companyducting the usual business of a companypany trading in real estate. 1 1929 14 T. C. 684. If the assessee Company was number doing business but was merely realising the property which it had acquired, this passage might have been of some use but, as will be shown later, there was more than mere realising of its property in the present case, and the further observations of the Lord President apply, which run But the professed objects of a companypany are number for that reason, to be left out of account on the companytrary, they must be kept in view when companysidering the transactions in which the companypany is proved to have been engaged. Reliance is also placed upon certain observations of Lord Warrington of Clyffe in Fry v. Salisbury House Estates, Ltd. 1 , where it was said Assuming the memorandum of association allows it, and in this case it unquestionably does, a companypany is just as capable as an individual of being a landowner and as such deriving rents and profits from its land, without thereby becoming a trader, and in my opinion it is the nature of its operations, and number its own capacity, which must determine whether it is carrying on a trade or number. We need number pause to companysider the, facts in that case, because we shall deal with it in detail presently but it is clear even from this passage that the deciding factor is number ownership of land or leases but the nature of the activity of the assessee and the nature of the operations in relation to them. The objects of the companypany must also be kept in view to interpret the activity. As was observed by Lord Sterndale, M. R. in The Commissioners of Inland Revenue The Korean Syndicate Ltd. If you once get the individual and the companypany spending exactly on the same basis, 1 1930 A. C. 432. 2 1921 12 T. C. 18 1. then there would be numberdifference between them at all. But the fact that the limited companypany companyes into existence in a different way is a matter to be companysidered. An individual companyes into existence for many purposes, or perhaps sometimes for numbere, whereas a limited companypany companyes into existence for some particular purpose, and if it companyes into existence for the particular purpose of carrying out a transaction by getting possession of companycession and turning them to account, then that is a matter to be companysidered when you companye to decide whether doing that is carrying on a business or number. The decision in this case must, therefore, turn upon the objects for which the Company was formed, and whether one of the objects of the Company was to develop and sell leases and leaseholds with an eye to making profit and what its activity was, in relation to its objects. Before, however, we analyse the objects for which the assessee Company was formed and scan its activities, it is instructive to refer to two cases to which the learned Attorney-General for the Department called our attention and which have also formed the basis of the decision of the High Court and the Tribunal. The first is the well-known case of Californian Copper Syndicate Limited and Reduced v. Harris 1 . There, the assessee companypany was formed, inter alia, with the following objects To acquire companyper and other mines, mining rights, metalliferous and auriferous land, in California or elsewhere in the United States of America, and any interest therein, and in particular to acquire the mines known as here follow some names situate in the companynty of 1 1904 5 T. C. 159. To sell, lease, charter or otherwise dispose of absolutely or companyditionally, or for any limited interest, the whole or any part of the undertaking, property, rights, companycessions or privileges of the Company for such companysideration in cash, shares or otherwise as the Company may think fit The Company acquired 480 acres of companyper-bearing land for E. 24,000 and spent money on development. Later, 80 acres of this land Were sold to Fresno, Copper Company, Ltd., for E. 105,000 payable wholly in fully paid shares of the Fresno Copper Company. the Company sold the remaining 400 acres for E. 195,000 payable wholly in fully paid shares of Fresno Copper Company. The Fresno Company had 400,000 shares of E. I each, and of these, 300,000 were allotted to the Company. The Company made numberprofits assessable to incometax, and the question was whether the net gain derived from the sale of the property companyld be deemed to be profit. The Company companytended that this was only a companyversion of one kind of capital into one of another kind. In the Court of Exchequer Scotland Lord Justice Clerk distinguished between two kinds of casesa where the owner of an ordinary investment chooses to realise it, and obtains a greater price for it than he originally acquired it at and b where the act is done number merely as a realisation but in what is truly the carrying on or carrying out, of a business. He, observed There are many companypanies which in their very inception are formed for such a purpose, and in these cases, it is number doubtful that, when they make a gain by a realisation, the gain they make is liable to be assessed for Income Tax. The learned Lord Justice observed that the line might be difficult to draw and each case must be decided on its own facts and posed, the question, which is the question to ask here Is the sum of gain that has been made a mere enhancement of value by realising a security, or it is a gain made in an operation of business in carrying out a scheme for profitmaking ? The facts in the case were held to indicate a highly speculative business, and it was said that the mode of the actual procedure employed also indicated a trading venture. Lord Trayner also agreed, observing that it was a proper trading transaction and one which was number only within the power of the companypany but also authorised by the Article. The next case is British South Africa Co. v. Commissioner of Income-tax 1 . In that case, the assessee was the British South Africa Co., which was incorporated, inter alia, for carrying into effect companycessions and agreements which had been made by certain chiefs of South Africa and such other companycessions which the Company might acquire. After acquiring such companycessions and mining rights, the Company gave special grants to other companypanies in return for fully paid shares and annual payments over a fixed number of years. The Income-tax authorities in Rhodesia treated these sums as profits, and assessed to income-tax the full par value of the shares. It was held that the sums were number capital receipts but income from business. The High Court of Rhodesia and the Rhodesian Court of Appeal affirmed the view of the Income-tax authorities. On appeal, the Privy Council did number endorse the view of the Rhodesian Courts on certain aspects of the case, with which we are number here companycerned, but went on to enquire into the nature of the receipts in question. Their Lordships in this companynection endorsed the view of Hudson, P. that the payments were income derived from the business of turning to account 1 1946 4 I. T. R. Supp. 17. the Companys rights under the companycessions of winning and disposing of minerals by participating in the proceeds of the exploitation of such rights by its licensees and the income was, therefore taxable as being the profits or gains of a trade or business. Their lordships also held that it was number material that in dealing with its mineral rights the Company has retained an interest either by way of a possible reverser of the property or by a shareholding in a companypany to which it made a special grant. The case, of companyrse, is one to which the warning often given that it is number desirable to rely upon decisions under different taxing statutes would seem applicable but in the judgment of the Privy. Council, it is made clear that the Rhodesian Act was number different from the British law. The decision also rests, number upon the provisions of any special enactment but upon the more general companysideration whether such receipts can be companysidered in a business sense as belonging to capital account or revenue and in what circumstances. These two cases and particularly the Californian Copper Syndicate case 1 cited by the learned Attorney-General do establish that if a companypany sold its assets as a part of its business with the objects for which the companypany was formed, the excess receipts over the expenses of acquisition can be regarded as profits or gains of the business. The case of the Californian Copper Syndicate Ltd. 1 is so similar in facts as to be almost decisive but the assessee Company relies upon Tebrau Johore Rubber Syndicate Ltd. v. Farmer 2 as laying down the principle which should govern this case. In that case, a companypany was formed with the object of acquiring estates in the Malay Peninsula and developing them by planting and cultivating rubber trees. The Memorandum of 1 1904 5 T.C. 159. 2 1910 3 T.C. 658. Association companytained a power to sell the property in the following terms To sell, or otherwise dispose of, as a going companycern or otherwise, the whole or any part of the business undertaking and property of the Company for such companysideration as the Company shall think fit. Two estates were purchased, but for want of adequate capital were sold to another companypany for companysideration in the shape mainly of shares in the second companypany. The return thus exceeded the amount of capital expended in making the acquisitions. Before the sale, however, a companysiderable part of the estates had been planted with rubber trees but numberrubber had been produced and the first companypany bad number reached the production stage. The Company had thus number earned any income except what it got by the sale. This was claimed to be an increase of capital. The Surveyor of Taxes relied, inter alia, upon the Californian Copper Syndicate case 1 . It was held by the Court of Exchequer Scotland that the profit on sale was merely an appreciation of capital and number profit assessable to income-tax. Lord Salvesan observed that he was unable to distinguish the position of the companypany from that of a person who acquired property by way of investment and who realised it afterwards at a profit. He, however, observed No doubt if it is a part of his business to deal in land or investments, any profits which in the companyrse of that business he realises form part of his income but the mere fact that a person or companypany has invested funds in the purchase of an estate which has subsequently appreciated And so has realised a profit on his purchase does number make that ,Profit liable to assessment. The Californian Copper Syndicate case 1 was 1 1904 5 T.C. 159. distinguished, because in that case, Lord Trayner bad found that business was being done, and the following observation, from Lord Trayners Judgment were emphasized I am satisfied that the Appellant companypany was formed in order to acquire certain mineral fields or workings-not to work the same themselves, for the benefit of the Company, but solely with the view and purpose of reselling the same at a profit. Lord Salvesen pointed out that such an inference companyld number be drawn about the case before him. These two sets of cases illustrate forcefully the changing circumstances in which an excess return may be treated as an appreciation of capital or as profit. If the sale is after a companypany is wound up and business has stopped, it may subject to special statutory provisions be said that any excess amount received over and above the capital of the companypany is merely an appreciation of capital but the same cannot be said if business is being done in lands, mineral companycessions, mining rights with a view to making profits. In the latter case, a sale at an enhanced price is number appreciation of capital but profit in the way of business, and the sale is so to speak, of stock-in-trade. Mr. Mitra relies upon three cases to establish that numberbusiness at all was being done. He companytends that the assessee Company was merely granting sub-leases of property of which they had the reverter and all that the assessee Company did was to companylect rent and royalties. Before dealing with the cases, it is necessary to point out that the ultimate reverter has numbersignificance. The term is 999 years less a few days. Even if it was shorter a possible reverter is number material. The observations of the Judicial Committee in the case from Rhodesia quoted earlier have our assent. The first case relied upon is East India Prospecting Syndicate v. Commissioner of Excess Profit .Tax 1 . In that case, the facts were very different. In 1919, V.C., a limited Company, obtained a prospecting licence from the Raja of Talchar in respect of some 8 sq. miles of companylbearing lands. On August 5, 1920 a partnership was formed which was named the East India Prospecting Syndicate. The objects of the partnership were 1 to purchase from the Company their rights under the prospecting licence 2 to give effect to the companyditions of the said licence and 3 to promote a companypany or companypanies with limited liability for the purpose of acquiring at a profit to the Syndicate all or any of the properties including the benefit of the prospecting licence. The Syndicate acquired the prospecting licence from the Company, V.C. In 1921, the Syndicate obtained a mining lease from the Raja of Talchar over about 500 acres for 30 years with option to renew. The Syndicate then promoted a Company called the Talchar Caulfield Ltd., shortly T.C . and sublet the mining property to it. They received payment in cash, in the shape of shares in T.C. and certain amounts periodically which were in excess of the amounts payable for alike period to the Raja of Talchar. The companytention of the Syndicate was that they were number carrying on any business. It was held that the activities of the Syndicate did number amount to a business and their receipts companyld number be regarded as, profits of business and were number chargeable to excess profits tax. It was companyceded by the Department in that case that the functions of the Syndicate, which was a partnership, and neither a limited Company number an incorporated society, companysisted 1 195119 I.T.R. 571. wholly in the holding of property, and that they had numberother functions whatsoever. It was, therefore, held that the proviso to s. 2 5 of the Excess Profits Tax Act, which defined business in certain circumstances, was number applicable, that proviso read Provided that where the functions of a companypany or of a society incorporated by or under any enactment companysist wholly or mainly in the holding of investments or other property, the holding of the investments or property shall be deemed for the purpose of this definition to be a business carried on by such companypany or society. Harries, C.J., and Chatterjee, J., held that, on the principle expressio unius exclusio alterius, the fiction in the proviso was number applicable to individuals and other bodies. It was, however, pointed out that If this sub-lease had been granted by a limited companypany or by an incorporated society the net profit companyld be regarded as profits for the purposes of Excess Profits Tax Act by reason of the proviso to Section 2 5 of the Act. The case was thus decided on the words of s. 2 5 . of the Excess Profits Tax Act and the fact that the Syndicate was a partnership. The High Court then went on to companysider the nature of rents and royalties received by the Syndicate, and held on the authority of In re Commercial Properties Ltd. 1 that for income-tax purposes the income would fall to be companysidered under s. 9 and number s. 10. It will be numbericed that there was but one property which the Syndicate held and the whole of that property was sub-let to C. Before it was, so sub-let, it was number being used for any business and all that the Syndicate did with it was to lease 1 1928 I.L.R. 55 Cal. 1057. it out. It was, in these Circumstances, that it was held to yield income from property and number profits or gains from business. The case is analogous to In re Commercial Properties Ltd. 1 , which is also cited by the assessee Company. There, the object of the registered companypany was to acquire land, build houses and let premises to tenants in Calcutta and elsewhere. The sole assets were three properties which were let out and all that the registered companypany did was the management and companylection of rents. Rankin, C. J., held that the receipts were income from property within s. 9 of the Income-Tax Act, that letting out such property and companylecting rents was number doing business, and that profits, and gains from business were very different from income from property. These two cases were decided on their very special facts. The first was a case of excess profits tax, and the fiction created by s. 2 5 of the Excess Profits Tax Act number being applicable, the nature of the business, if any, was examined, and it was held that there was numbermore than companylection of rents from property. The second case was also one of rents from property and number of profits from business. The last case relied upon is Fry v. Salisbury House Estate Ltd. 2 already mentioned. in this Judgment. Salisbury House was a building with 800 rooms. A companypany was formed for the express purpose of acquiring it and utilising it. The rooms were let unfurnished to tenants, but there was some slight service in the shape of heating and cleaning. The companypany also retained some rooms as its offices. The companypany was first assessed under r.8 c i of Sch.A VII of the English Incometax Act of 1918., which provided for assessment of landlords instead of tenants in the case of any house or building let in apartments or tenements. The companypany paid the tax assessed on it. Then a numberice was sent under Sch. D. The companypany admitted 1 1928 I.L.R. 55 Cal. 1057. 2 1930 A.C. 432, that it had to pay tax under Sch. D on profit it might have made from the services it rendered, but companytended that income which had. been taxed under Sch. A companyld number be taxed under Sch. D. The companypany demanded a case. Rowlatt, J., held against the companypany but his decision was reversed by the Court of appeal On further appeal to the House of Lords, it was held that the rents were profits from ownership of land and assessment under Sch, A was the proper mode and they companyld number be treated as trade receipts of the companypany for purposes of Sch. D. The assessee Company has relied upon certain passages in the speeches of the learned and numberle Law Lords, one of which from speech of Lord Warrington of Clyffe has already been quoted. It is number necessary to quote the other passages except one from the speech of Lord Tomlin because the purport is the same. Says Lord Tomlin Further in my view the perception of rents as landowner is number an operation of trade within the meaning of the Act. If this be so, I am unable to appreciate how the existence o ancillary activities which produce profits taxable under Schedule D can affect the nature of the operation or how the legal significance of the perception is altered for the purpose of income-tax if the recipient is a limited companypany rather than an individual. As has been already pointed out in companynection With the other two cases where there is a letting out of premises and companylection of rents the assessment on property basis may be companyrect but number so, where the letting or sub letting is part of a trading operation The dividing line is difficult to, find but in the case of a companypany with its professed objects and the manner of its activities and the nature of its dealings I with, its property, it is possible to say on which side the operations fall, and to what head the income is to be assigned. Ownership of property and leasing it out may be done as a part of business, or it may be done as land owner. Whether it is the one or the other must necessarily depend upon the object with which the Act is done. It is number that numbercompany can own property and enjoy it as property, whether by itself or by giving the use of it to another on rent. Where this happens, the Appropriate head to apply is income from property s. 9 , even though the companypany may be doing extensive business otherwise. But a companypany formed with the specific object of acquiring properties number with the view to leasing them as property but to selling them or turning them to account even by way of leasing them out as an integral part of its business cannot be said to treat them as landowner but as trader The cases which have been cited in this case both for and against the assessee Company must be applied with this distinction properly borne in mind. In deciding whether a companypany dealt with its properties as owner,, one must see number to the form which it gave to the transaction but to the substance of the matter. The Californian Copper Syndicate case 1 illustrates vividly dealings with mineral rights and companycessions by a companypany as part of the objects of its business, or, in other words, in the doing of the business. The Calcutta cases and the case of Fry v. Salisbury House Estate Ltd. , illustrate the companytrary Proposition. There, the property, though dealt with by a companypany intending to do business, was dealt with as landowner. The intention in those cases was number to derive profit by business done with those properties but to derive .income by renting them out Where a Company acquires properties which it sells or leases out with a view to acquiring other properties to be dealt with in the same manner, the companypany is number treating them as properties to be enjoyed in the shape of rents which they yield but as a kind of circulating capital leading to profits of business, which profits 1 1904 5 T. C. 159. 2 1930 A. C. 432. may be either enjoyedor put back into the business to acquire more properties for further profitable exploitation. We shall number turn to the present case, because it remains to companysider what the assessee Company was doing with the head leases. The relevant clauses of the Memorandum of Association of the assessee Company have already been quoted. They show the various objects for which the assessee Company was incorporated. Though power was taken under ClS. 2 , 3 , 6 and 34 to do business of companylraising, etc, the assessee Company did number do the sort of business authorised there. It restricted its business to ClS. 1 and 52 . Under el. 1 , power was taken to purchase and acquire underground companyl-mining and relative rights. Under el. 52 , power was taken to sell, improve, manage, develop, exchange, lease, mortgage, disposeof, turn to account or otherwise deal with all or any part of the property and rights of the Company. Business was done extensively within these two clauses. Annexure F shows the areas which were sub-leased. A glance, ,at the chart shows the large number of sub-leases and the different companypanies to which the subleases were granted. These sub-leases were granted, because the assessee Company wanted,, was a matter of business, to turn its rights to account. The assessee Company opened out, and developed the areas, and then granted these sub leases with an eye to profit. It is clear from these operations that the assessee Company having secured a large tract of companyl-bearing land parcelled and developed it into kind of stock-in-trade to be profitably dealt with. The assessee Company extended its business along these lines acquiring fresh fields. In the circumstances, the nature of the business was trading within the objects of the Company and number enjoyment of property as land owner. There was also numbersale of its fixed, capital at a profit. In our opinion, the High Court rightly answered the question against the assessee Company.
What has been urged in these writ petitions is that rule 8-C, as amended by G.O.M.No.214 issued by the Government of Tamil Nadu on 10th June, 1992, and rule 38 of the Tamil Nadu Minor Mineral Concession Rules, 1959, are bad in law. The challenge is grounded on the provisions of subsection 2 of section 17-A of the Mines Minerals Regulation Development Act, 1957, which was inserted in the statute by Amending Act 3 7 of 1986. Rule 8-C is in Section 11 of the Said Rules, which deals with Government lands in which minerals belong to the Government. The relevant portion of rule 8-C, as amended, reads thus 8-C. Lease of quarries in respect of black, red, pink, grey, green, white or other companyoured or multi-coloured granites or any rock suitable for use as ornamental and decorative stones to a State Government Company or Corporation owned. or companytrolled by the State Government 1 a Notwithstanding anything companytained in these rules but subject to rule 8-A and clause b of this sub rule, on and from the 10th June 1992, numberlease for quarrying black, red,pink, grey, green, white or other companyoured or multi-coloured granites or any rock suitable for use as ornamental and decorative stones shall be granted to any person. The State Government themselves nay engage in quarrying black, red, pink, grey green, white or other companyoured or multicompanyoured granites or any rock suitable for use as ornamental and decorative stones or may grant or renew leases for we above minerals to a State Government Company or Corporation owned or companytrolled by the State Government. Rule 39 in Section V, dealing with miscellaneous matters. It reads thus Reservation of area for exploitation in the public sector, etc.- The State Government may, by numberification in the Official Gazette, reserve any area for the exploitation by the Government, a Corporation established by any Central , State or Provincial Act or a Government Company within the meaning of section 617 of the Companies Act, 1956 Central Act 1 of 1956 . Section 17-A of the Act reads thus 17-A. Reservation of area for purposes of companyservation 1 . The Central Government, with a view to companyserving any mineral and after companysultation with the State Government, may reserve any area number already held under any prospecting licence or mining lease and, where it proposes to do so, it shall, by numberification in the official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such area will be reserved. The State Government may, with the approval of the Central Government, reserve any area number already held under any prospecting licence or mining lease, for undertaking prospecting or mining operations through a Government Company or Corporation owned or companytrolled by it or by the Central Government and where it proposes to do so, it shall, by numberification in the official Gazette, specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. Where jin exercise of the powers companyferred by sub-section 2 the State Government undertakes prospecting or mining operations in any area in which the minerals vest in a private person, it shall be liable to pay prospecting. fee royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at while it would have been payable under this Act if such prospecting or mining Operations had been undertaken by a private person under prospecting licence or mining lease. It is an admitted position that the approval of the Central Government was number obtained to rule 8-C as amended on 10th June, 1992, either before or after that date. Section 17A 2 empowers the State Government to reserve any area number already held under a mining lease for undertaking mining operations through a Government Company or companyporation owned or companytrolled by it may do so only with the approval of the Central Government. When it purposes to do so it must, by numberification in the Official Gazette, specify the boundaries of that area and the mineral or minerals in respect of which that area is to be reserved. Rule 8-C, as amended on 10th June 1992, states that numberlease for quarrying the granites therein specified and any rock suitable for use for ornamental or decorative stones shall be granted to any person. It is also states that the State Government itself may engage in quarrying such granites or rock or may grant or renew leases to quarry the same to a State Government companypany or companyporation. This Court in Amritlal Nathubhai Shah ors. v. Union Government of India and anr. 1977 1 S.C.R.372, companysidered the provisions of section 17 of the said Act, it was argued on behalf of the appellants that they were only provisions for specifying the boundaries of the reserved areas and, as they related to prospecting or mining operations to be undertaken by the Central Government, they showed that the said Act did number companytemplate or provide for reservation by any other authority or for any other purpose. The argument was repelled by this Court in these words The argument is however untenable because the aforesaid sub-sections of section 17 do number companyer the entire field of the authority of refusing to grant a prospecting licence or a mining lease to any one else, and do number deal with the State Governments authority to reserve any area for itself. As has been stated, the authority to order reservation flows from the fact that the State is the owner of the ?nines and the minerals within its territory, which vest in it. Emphasis supplied . Mr. Sanghi, learned companynsel for the respondent State, was, therefore, justified in asserting that rule 8-C, as amended, did number, in any event, debar the State Government from making a rule that numberlease to quarry the said granites and rock would be granted to any person and that the State Government itself companyld engage in such quarrying. As the owner of the said granites and rock the State Government may decline to give to anyone a lease to quarry the same and engage in such quarrying operations in itself The real question is whether the State Government is entitled to go further and state that it would be free to grant or renew leases to quarry the said granites and rock to a State Government companypany or companyporation. Mr. Sanghi argued that the provisions of Rule 8-C, as amended, were number intended to make a reservation of such granites and rock in favour of the State Government or its companypanies or companyporations but to preserve the same and, therefore, the State Government was number obliged to obtain the approval of the Central Government thereto under the provisions of Section 17A- 2 . We cannot agree. Clearly, rule 8-C, as amended, is intended to reserve the quarrying of be said granites and rock for the State Government and for a State Government companypanies and companyporations. Insofar as the reservation is for State Government companypanies and companyporations, it is hit by the provisions of Section 17-A 2 because, for such reservation, the approval of the Central Government is required and has number been obtained. Rule 38 purports to permit the State Government to reserve any area for exploitation by the Government or Central or State Government companyporations companypanies.
GOPALA GOWDA, J. The appellant-employer has questioned the companyrectness of the impugned judgment and order dated 29.1.2010 passed by the Division Bench of the High Court in Letters Patent Appeal No.28316 of 2009 in affirming the judgment and order dated 15.6.2009 passed by the learned single Judge in Writ Petition C No.3135 of 2009 whereby the learned single Judge dismissed the Writ Petition. The writ petition was filed by the appellant-employer herein against the order dated 16.4.2007 passed by the Industrial Court, Mumbai in companyplaint ULP No.588 of 1996 filed by the respondent-workman. The brief facts of the case in nutshell are stated as under - The respondent-workman filed the companyplaint ULP No. 339 of 1987 before the Labour Court, Mumbai under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 the Act in short questioning the legality of the order of his termination from service and alleging that it amounts to an unfair labour practice by the appellant and prayed for setting aside the same and passing an award of reinstatement and companytinuity of service with full back wages. The Labour Court vide its award dated 25.3.1996 found the appellant guilty of unfair labour practice under Items 1 a , b , d and f of Schedule IV of the Act, and allowed the said companyplaint directing the appellant to reinstate the respondent with full back wages and companytinuity of service. Against the said award, the appellant filed Revision Application No. 72 of 1996 before the Industrial Court which was rejected vide order dated 8.10.1996 Being aggrieved of the said award, the appellant filed Writ Petition No. 6064 of 1996 before the High Court and the same was dismissed by the High Court on 2.4.2004 for default. For restoration of the Writ Petition C No.6064 of 1996 the appellant filed Civil Application NO. 1104 of 2009 and the same was also dismissed vide order dated 23.6.2010. The said order number being challenged by the appellant the award dated 25.3.1996 passed by the Labour Court in companyplaint ULP No. 339 of 1987 has attained finality. The said award passed in the companyplaint having number been implemented, the second inning was initiated by the respondent-workman by filing a Complaint No. ULP 588 of 1996 before the Industrial Court seeking for implementation of the award dated 25.3.1996 passed by the Labour Court in the Complaint ULP No. 339 of 1987. The Industrial Court vide order dated 16.4.2007 allowed the Complaint ULP No. 588 of 1996 and directed the appellant to companyply with award dated 25.3.1996 of the Labour Court. The appellant being aggrieved by the said order, filed Writ Petition No. 3135 of 2009 against the said order before the High Court urging various grounds. The learned single Judge vide order dated 15.6.2009 dismissed Writ Petition C No. 3135 of 2009 after adverting to the factual aspects and legal companytentions urged on behalf of the parties and rightly rejected the plea of alleged closure of appellants Bombay Office by recording its reasons which order was affirmed by the High Court in the earlier writ petition proceedings, thereby the plea that Bombay Office of the appellant was closed was number accepted and the same was companycluded in the earlier round of litigation between the parties. Being aggrieved by the order dated 15.6.2009, the appellant filed Letters Patent Appeal No.28316 of 2009 before the Division Bench of High Court. The Division Bench dismissed the said appeal vide its order dated 29.1.2010, after giving valid and companyent reasons at paragraph No. 4, of the impugned judgment. The relevant portion of paragraph No. 4 is extracted hereunder - 4The learned single Judge while dismissing the petition has found that the Industrial Court has given companyent and sound reasons for rejecting the application for amendment of written statement. It is companycurrently found that though an opportunity was available for raising the plea at earlier stage, the application for amendment was sought to be made at the fag end of the companyplaint filed by the respondent for implementation of the order passed in the earlier companyplaint. In any case, the issue before the learned Industrial Court in companyplaint ULP No. 588 of 1996 was only with regard to the implementation of the order dated 25.3.1996 in Complaint ULP No. 339 of 1987 passed by the Labour Court. Aggrieved by the order dated 29.1.2010 passed in the Letters Patent Appeal, this appeal is filed by the appellant urging various legal grounds. Having heard the learned companynsel on behalf of both the parties, we are of the view that the companycluded lis between the parties with regard to the wrongful termination of the respondent from services in the earlier round of litigation and passing of an award of reinstatement with full back wages and companytinuity of service from the date of termination till the date of reinstatement since the said award was number deliberately implemented by the appellant, therefore, the respondent-workman rightly approached the Industrial Court by filing a companyplaint in the second round of litigation seeking for implementation of the same. The award passed in favour of the respondent by the Labour Court has attained finality, hence, the judgment and orders passed by the learned single Judge and the Division Bench of the High Court in number interfering with the order passed by the Industrial Court dated 16.4.2007 in the companyplaint filed by the respondent for implementation of the award by way of execution of the award do number call for interference by this Court in exercise of its appellate jurisdiction. This Court while granting leave in the said appeal passed the following order on 6.12.2010 - Hearing expedited. We have been informed that the respondent has since been reinstated. In that view of the matter only direction with regard to the payment of back wages shall remain stayed, subject to appellants depositing in this Court the balance amount of back wages within two months. As and when, the said deposit is made, the same be put in a fixed deposit, initially, for a period of one year. In pursuant to the said interim order, it is stated on behalf of the appellant that the amount is deposited in this Court and the same is kept in fixed deposit initially for a period of one year and that came to be extended from time to time. The respondent is at liberty to withdraw the said amount including the interest earned thereon. The receipt of the said back wages deposited shall be adjusted towards the back wages awarded by the Industrial Court in its award and order dated 16.4.2007 passed in Complaint ULP No. 588/1996 wherein the appellant was directed to pay deposit back wages with all attendant benefits up to date upon deducting Rs.2,98,213/-, and to pay interest at the rate of 12 per annum in case of number companypliance of the order within one month. The appellant-employer has filed this appeal questioning the companyrectness of the order dated 16.4.2007 passed in Complaint ULP No. 588 of 1996. The award passed by the Labour Court in the Complaint ULP No. 339 of 1987 has attained finality as the writ petition filed came to be dismissed on 2.4.2004 for default and restoration of the aforesaid writ petition also came to be dismissed vide order dated 23.6.2010 thereby the award has attained finality. The appellant-employer has been litigating and dragging the workman from one companyrt to another from 1987 till date which is nearly about 27 years. In this process the legitimate right of receiving the monetary benefits awarded in favour of the respondent is being denied by the appellant by taking untenable companytentions thereby the respondent and her family members have been put to great hardship and mental agony. Therefore, it is a fit case for awarding the companyts towards engaging the lawyers and hardship which has been facing by the workman from 1987. In view of the aforesaid reasons, we pass the following order The appeal is devoid of merit as numbere of the grounds, urged are tenable in law hence the same is dismissed with companyts of Rs.50,000/- payable to the workman The appellant is directed to companyply with the terms and companyditions of the order dated 16.4.2007 passed by the Industrial Court in Complaint ULP No. 588 of 1996 within four weeks from the date of receipt of the companyy of this order. Interlocutory Application No. 1 filed in this appeal is disposed of. . V. GOPALA GOWDA J. NAGAPPAN New Delhi, November 27, 2014 ITEM NO.1A-For Judgment COURT NO.9 SECTION XV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No s . 10856/2010 CIMCO BIRLA LTD. Appellant s VERSUS ROWENA LEWIS Respondent s Date 27/11/2014 This appeal was called on for JUDGMENT today. For Appellant s Mr. Shiv Khorana,Adv.
Dr. ARIJIT PASAYAT, J. Challenge in the present appeals is to the judgment of a Division Bench of the Allahabad High Court allowing the appeal filed by the respondents. The respondents were found guilty of offence punishable under Sections 302, 307 read with Section 149 of the Indian Penal Code, 1860 in short the IPC by the trial Court. It is to be numbered that two appeals were filed before the High Court by the companyvicted accused persons. Criminal Appeal No.2007/1997 was preferred by Gajadhar Singh respondent No.1 and Criminal Appeal No.1963/1997 was preferred by Janardan Singh, Sarvajit Singh, Suresh Singh, Umesh Singh, Mritunjai Singh and Haribhan Chaudhury. The High Court dismissed the appeal of respondent No.1-Gajadhar but set aside the companyviction so far as appellants in the other appeal before it. However, so far as Gajadhar is companycerned his companyviction in terms of Section 307 read with Section 149 IPC was altered and he was companyvicted under Section 323 read with Section 149 IPC. So far as other appellants are companycerned their companyvictions under Section 302 and 307 both read with Section 149 IPC were set aside and instead they were companyvicted under Section 323 read with Section 149 IPC. The companyviction under Section 147 IPC was affirmed. Background facts in a nutshell are as follows The accused Gajadhar Singh and Umesh Singh are real brothers being sons of Ram Vichar Singh while Sarvajit Singh accused is son of Janardan Singh. Janardan Singh is the first companysin of Ram Vichar Singh as their fathers were real brothers. The remaining two accused, namely, Mritunjai Singh and Haribhan Chaudhury belonged to their group. Janardan Singh was earlier the Pradhan of Gaon Sabha Bankara Saiyed Bukhara. In the election scheduled to be held in April, 1995, the office of Pradhan of the said Gaon Sabha was reserved for a person belonging to backward caste. Janardan Singh then set up Haribhan Yadav Chaudhary while Chandra Bhan Singh hereinafter referred to as deceased set up Ramakant Yadav as candidate for the office of Pradhan. Janardan Singh himself filed his numberination papers for the membership of Block Development Committee while deceased Chandra Bhan Singh proposed the name of Shri Ram Bhar for the said office. The election for the office of Pradhan companymenced in the morning of 7.4.1995 and the polling station was in the primary school of the village. Chandra Bhan Singh was also the polling agent of Ramakant Yadav. Shortly after companymencement of the polling, Janardan Singh and some persons of his group started creating disturbance and resorted to rowdism. Chandra Bhan Singh asked them number to create any disturbance and to allow the poll to be companyducted in a peaceful manner. Janardan Singh then exhorted his companypanions that he should be beaten. Thereafter Janardan Singh and Sarvajit Singh each caught one hand of Chandra Bhan Singh and Gajadhar Singh fired from a companyntry made pistol upon him and the shot him upon his chest. Shivji Yadav, Deedan Singh and Keshav rushed forward to save him but the accused Suresh Singh Umesh Singh, Mritunjai Singh and Haribhan assaulted them with lathis. Chandra Bhan Singh fell clown and died on the spot. The injured Keshav Singh Shivji and Deedan Singh thereafter went to the PHC Siyar where medical aid was given to them and they were also medically examined. Keshav Singh got the FIR of the incident scribed by Raghav Singh and lodged the same at 12.40 p.m. at Police Station, Ubhav which is at a distance of 4 miles from the place of occurrence. Udai Bhan Singh PW-6 , clerk-constable, registered a case in the general diary on the basis of the FIR lodged by Keshav Singh. Subhash Chandra Sonkar CW-2 , SI Commended investigation of the case and immediately proceeded for the spot. The dead body of Chandra Bhan Singh was lying in front of the building of primary school in village Bankara Saiyed Bukhara. He found blood on the spot and companylected plain and bloodstained earth from there and prepared its recovery memo. He also prepared a site-plan with the assistance of Keshav Singh and his statement under section 161 of the Code of Criminal Procedure, 1973 in short the Code was also recorded by him. After companypleting other formalities, the body was sealed and was sent for Post-mortem examination. Subsequently, the investigation was handed over to T.P. Nanda P.W.7 , who recorded statements of some others witnesses. After companypletion of investigation charge sheet was filed. As the accused persons pleaded innocence, trial was held. Prosecution examined seven witnesses including the three eye witnesses. The accused examined one witness in support of their plea of innocence. As per the directions of the Court three persons were examined as companyrt witnesses. The learned Sessions Judge believed the case of the prosecution and companyvicted and sentenced the accused as numbered above. Before the High Court in the appeals, the primary stand was that the prosecution evidence was number reliable. The High Court did number accept the stand. The High Court held that it was established beyond any shadow of doubt that Gajadhar had fired upon the deceased Chandra Bhan at 7.45 a.m. on 7.4.1995 in front of the building of the primary school which resulted in his death. So far as other accused persons are companycerned the High Court numbericed that the evidence was insufficient. The High Court, therefore, was number inclined to believe that part of the prosecution case wherein the role of catching hands of the deceased was assigned to the accused Janardan and Sarvajit Singh. So far as remaining four accused persons are companycerned the High Court numbered that they allegedly did number cause any injury to the deceased. They were armed with lathis but they did number assault the deceased. They were alleged to have caused injuries to three persons, but all the injuries caused by them were found to be simple in nature. In that view of the matter the High Court found that the companymon object of the assembly was number to companymit the murder of the deceased and it was the solitary act of Gajadhar Singh which resulted in his death. So far as companyviction under Section 307 read with Section 149 IPC is companycerned after referring to the nature of injuries sustained by three injured it was held that Section 307 read with Section 149 IPC had numberapplication and instead appropriate companyviction would be under Section 323 read with Section 149 IPC. Accordingly, it altered the companyviction. In support of the appeals, learned companynsel for the appellant submitted that the accused persons had caused injuries. The evidence of PWs had clearly established the accusations and, therefore, the High Court should number have altered the companyviction as was done by the trial Court. Learned companynsel for the respondents on the other hand supported the judgment. It is to be numbered that companyviction of Gajadhar for offence punishable under Section 302 read with Section 149 IPC has been affirmed and the companyviction for offence in terms of Section 307 read with Section 149 IPC has been altered. The appeal filed by the State of U.P. so far as accused Gajadhar-respondent No.1 is companycerned appears to be without any substance. So far as other accused persons are companycerned, the High Court has in great detail referred to the evidence and directed acquittal of the other accused persons. The evidence on record clearly established that the pistol was companycealed and was number visible to anyone. The High Court rightly numbered that the evidence adduced by the prosecution did number establish that remaining accused persons had any knowledge that Gajadhar was carrying a companyntry made pistol or that he would go to shoot the deceased. The testimony of PW-2 shows that Janardan was initially asking the voters number to caste vote for Ramakant Yadav but to vote for his candidate and subsequently he had resorted to rowdism in order to disturb the voting process so that Ramakant Yadav may number win the election and that simple injuries were caused by blunt weapon to three persons.
2004 Supp 3 SCR 590 The Judgment of the Court was delivered by THAKKER, J. Leave granted. This appeal is directed against the Judgment and order dated December 18, 2003 passed by the High Court of Judicature at Bombay Aurangabad Bench in Appeal from Order No. 78 of 1999. The High Court, by the impugned order, dismissed the appeal filed by the appellant herein companyfirming the order passed by the Extra joint District judge, Jalgaon on October 13, 1999. The plaintiff-respondent No. llandlord filed a suit being Regular Civil Suit No. 121 of 1991 in the Court of Civil Judge J.D. , Bhusawal against defendant Nos. l and 2 Ganesh Prasad and Bhushan Bajan for recovery of possession of property bearing Municipal House No. 764 in CTS No. 1309, Gandhi Square, Bhusawal suit property for short on the grounds that the landlord required the premises for his bona fide use, change of user of the property as also, number user of premises by the tenant and unlawful subletting by defendant No. l to defendant No. 2. The trial companyrt, by judgment and decree dated February 14, 1995, decreed the suit on the ground that defendant No. l had unlawfully sub-let the property to defendant No. 2 without the permission of landlord. Being aggrieved by the decree passed by the trial companyrt, defendant No. l tenant preferred regular Civil Appeal No. 51 of 1995 in the Court of District Judge, Jalgaon. The appeal was admitted and interim stay was granted. Ganesh Prasad, however, died of heart attack on June 04, 1997. On or about July 16, 1999, when the advocate representing the defendant No. l addressed a letter to the first defendant that the appeal had been placed for hearing, the appellants who are the heirs and legal representatives of deceased Ganesh Prasad came to know that the appeal had been instituted by deceased Ganesh Prasad against the decree passed by the trial companyrt and it was pending. They, therefore, immediately companytracted the advocate at Jalgaon, sought the information regarding the pending appeal and informed him about the death of Ganesh Prasad. Immediately, therefore, an application Exh. 22 was filed on July 27, 1999 in Civil Appeal No. 51 of 1995 under Order XXII, Rule 11 of the Code of Civil Procedure, 1908 hereinafter referred to as the Code praying for substitution of legal representatives of deceased-defendant No. l . A companyy of the said application was served upon the respondent-landlord. The respondent filed a reply to the application companytending that the appeal stood abated in view of death of original defendant Ganesh Prasad and failure to bring heirs on record within ninety days. It was also submitted that since numberprayer for setting aside abatement had been made by the applicants, the application Exh. 22 was number maintainable. The learned Extra Joint District Judge, by an order below Exh. 22 on August 26, 1999 rejected the application for substitution of heirs, inter alia on the ground that numberseparate applications were filed for substitution, setting aside abatement of appeal and companydonation of delay. After the rejection of application Exh. 22 on technical ground, the appellants filed three applications i Exh. 29 for setting aside abatement and for substituting them as parties ii Exh. 31 for companydonation of delay and iii Exh. 33 for interim relief. The appellate companyrt, however, rejected those applications observing that numbersufficient cause had been made out for companydonation of delay. It was also observed that earlier application Exh. 22 was dismissed and hence the applications filed by the appellants were barred by res judicata. Aggrieved by the said order, the appellants approached the High Court by filing Civil Revision Application No. 1207 of 1999. The learned single Judge of the High Court also dismissed the same observing that after the abatement of appeal, applications were filed after two years and there was numberreasonable explanation for companydonation of delay. The High Court also observed that when an application was made earlier and was dismissed, it was number proper on the part of the appellants to raise the same issue again and hence the applications were number maintainable. It is that order which he challenged before us. We nave heard companynsel for the parties. The learned companynsel for the appellants companytended that after the decree was passed against the tenant, he had approached the appellate forum by instituting an appeal in the District Court, Jalgaon. It is thus clear that the tenant had number accepted the decree passed by the trial companyrt. The appellate companyrt had admitted the appeal and had also granted interim relief. The appellants herein were number aware of the appeal filed by their father and, hence they companyld number bring the said fact to the numberice of the advocate appearing for deceased Ganesh Prasad. It was when the advocate at Jalgaon addressed a letter to the deceased defendant in July, 1999 that the matter had companye up for hearing that the appellants came to know about the pendency of appeal before the District Court. They, therefore, immediately approached the advocate, informed him regarding the death of Ganesh Prasad and filed an application Exh. 22. The lower appellate companyrt unfortunately adopted a technical approach and dismissed the application on the ground that only one application was made. The companyrt was also number right in observing that there was numberreasonable explanation for delay. When the appellants were number aware of pending proceedings at Jalgaon, they companyld number make application immediately after the death of deceased Ganesh Prasad. For the first time, they came to know about the pendency of appeal when they received a letter from the advocate through whom the appeal was filed by the deceaseddefendant in the District Court, Jalgaon. Thereafter, there was numberdelay on the part of the appellants. The lower appellate companyrt, therefore, ought to have granted the application. It was also stated that after the dismissal of application Exh. 22, there different applications were made praying for different reliefs. So far as delay is companycerned, as already stated, the appellants had explained the circumstances in which the applications companyld number be made immediately after the death of deceased Ganesh Prasad. Thus, there was sufficient ground for companydonation of delay and to grant prayer for substitution of parties. The companynsel further submitted that the companyrt was also number right in observing that the applications were barred by res judicata. The doctrine of res judicata would number apply to such a situation. It was urged that the High Court had also companymitted the same error in dismissing the Appeal from Order. A prayer was, therefore, made to set aside the orders passed by the appellate companyrt as well as the High Court by allowing applications Exhs. 29, 31 and 33 and to issue appropriate directions to the appellate companyrt to decide the appeal in accordance with law. The learned companynsel for the respondents, on the other hand, supported the order passed by the lower appellate companyrt and companyfirmed by the High Court. It was submitted that numberhing Was shown to the lower appellate companyrt as to want of knowledge on the part of the appellants regarding pendency of appeal before the District Court and hence the companyrt held that there was numberreasonable explanation for companydonation of delay. As to applications Exh. 29, Exh. 31 and Exh. 33, the companynsel submitted that the companyrt was right in dismissing those applications on merits as also on the ground of res judicata, the reason being that earlier application Exh. 22 was dismissed on merits. The companynsel also submitted that the High Court has again companysidered the companytentions raised by the appellants and dismissed the appeal on the ground of maintainability as also on merits. No case is thus made out for interference by this Court in discretionary jurisdiction under Article 136 of the companystitution. The companynsel also submitted that even on merits, the appeal does number deserve to be allowed as the decree was passed by the trial companyrt on the ground of sub-letting. The tenant had sub-let the suit premises without the permission of the landlord and thus had entered into profiteering business. Having heard the learned companynsel for the parties, in our opinion, the appeal deserves to be allowed. So far as the ground for passing of decree against the defendant, we may clarify that we are number expressing any opinion on that issue and as and when the matter will companye up for hearing, the companyrt will pass an appropriate order on merits. But, in our opinion, in the facts and circumstances of the case, when the original defendant had number accepted the decree passed by the trial companyrt and had preferred an appeal before the District Court which was pending and as soon as the appeal was placed for hearing and the advocate had addressed a letter to the appellants, prompt actions were taken by them, the lower appellate companyrt ought to have granted the prayer for substitution. We are also of the view that after dismissal of application Exh. 22 the appellants had filed three applications Exh. 29, Exh. 31 and Exh. 33 which ought to have been allowed companysidering overall and attenuating circumstances of the case. The doctrine of res judicata companyld number be applied when the Court felt that the applications were number maintainable. In our companysidered view, this is number a case of inaction or negligence on the part of the appellants. For the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The order passed by the Extra District Judge, Jalgaon on October 13, 1999 and companyfirmed by the High Court on December 18, 2003, are set aside and the applications stand allowed. In the facts and circumstances, however, the appellants will pay an amount of Rs. 10,000 Rupees ten thousand only to the plaintiff-respondent No. l by way of companyts. Let the amount be paid within a period of three months from today.
N. Grover, J. This is an appeal by certificate from a judgment of the Madras High Court answering the following question which had been referred to it under Section 66 1 of the Indian Income-tax Act, 1922, hereinafter called the Act in the affirmative and against the assessee. Whether on the facts and In the circumstances of the case, the sum of Rs. 54,479 is assessable in the year 1957-58 under the provisions of Section 10 2A of the Income-tax Act of 1922? The assessee is a private limited companypany, it runs a fleet of buses. For the assessment year 1950-51 the assessee returned an income of Rupees 14,555/-. The Income-tax Officer required the assessee to furnish various particulars and documents under Section 22 4 of the Act. These were number furnished. Apart from companymitting a default under Section 22 4 it companymitted a default under Section 23 2 . The Income-tax Officer made an assessment under Section 23 4 estimating the assessees Income at Rs. 1,80,000/-. On appeal to the Appellate Assistant Commissioner it was reduced to Rs. 1,30,000/-. In the accounts relating to the assessment year 1950-51 the assessee had claimed a sum of Rs. 4,09786/- as establishment charges which included a sum of Rs. 71,949/- representing the annual bonus payable to the employees. This amount had actually number been paid but had been shown on the debit side. The assessee ran into financial difficulties and the bonus remained unpaid for some years. In the accounting year relevant to the assessment year 1957-58 with which we are number companycerned a sum of Rs. 17,470/-was paid to the employees as bonus in full settlement and the balance of Rs. 54,479/- was credited to the profit and loss account. The Income-tax Officer treated the credit of Rs. 54,479 so made as income accruing in the year of account. The Appellate Tribunal while dealing with the appeal observed Regarding the second companytention, In the return made by the assessee for 1950-51, the assessee claimed bonus to employees and thereafter arrived at the business income at Rs. 14,555. The assessment, however, was companypleted under Section 23 4 having as a guide the earlier years assessment or a total income of about Rs. 130,000/-. No doubt in the assessment of 1949-50, there was a bonus claim too. From this feature alone, it is difficult to companyclude that the Income-tax Officer had scrutinised the companyputation and has companysidered the bonus too in his estimate. Actually, in the manner the estimate has been made, it would appear that the book position had beer given the go-by. Unless the department is able to identify any particular Item of expense as having been already allowed as a deduction in an earlier assessment companyclusively Section 10 2A is number available for recoupment. This companytention too is accordingly accepted. The High Court did number agree with the above view of the Tribunal although It appears that it did number disagree with the companyclusion of the Tribunal that the record did number companytain any indication that the Income tax Officer had made any allowance in respect of bonus for which provision had been made while making the assessment for the assessment year 1950-51. On that finding of the Tribunal it companyld hardly be regarded as established that either, any allowance or deduction had been granted in respect of a trading liability of the assessment year 1950-51 or it had been proved that the assessee had obtained any benefit relating to such trading liability in the assessment year 1957-58 which would attract the provisions of Section 10 2A of the Act. That provision only applies when an allowance for deduction has been made in the assessment of any year in respect of any loss, expenditure or trading liability incurred by the assessee and subsequently during any previous year the assessee receives any amount in respect of such loss or expenditure or has obtained some benefit in respect of such trading liability by way of remission or cessation thereof in which event the amount received by him has to be deemed to be profits and gains. On the finding of the Tribunal the companydition of Section 10 2A companyld number be said to have been satisfied and the addition of Rs. 54,479 made by the Income-tax Officer in the assessment for the year 1957-58 was number justified. It is apparent that the question whether an allowance had been granted or a deduction made in respect of a trading liability had to be decided by referring to the Order relating to the assessment year 1950-51 and it companyld number be determined by drawing inferences from what was done in respect of the assessment of an earlier year. In our judgment the finding of fact of the Appellate Tribunal did number warrant the answer returned by the High Court which is hereby discharged.
ORIGINAL JURISDICTION Petition No. XVI of 1950. Application under article 32 of the Constitution for a writ of prohibition and certiorari. The facts are set out in the judgment. R.Pattabhi Raman, for the petitioner. Rajah Ayyar, Advocate-General of MadraS, Ganapathi Ayyar, with him for the opposite party. 1950. May 26. The Judgment of Kania C.J., Mehr Chand Mahajan, Mukherjea and Das JJ. was delivered by Patanjali Sastri J. Fazl Ali J. delivered a separate judgment. PATANJALI SASTRI J.--The petitioner is the printer, publisher and editor of a recently started weekly journal in English called Cross Roads printed and published in Bombay. The Government of Madras, the respondents herein, in exercise of their powers under section 9 1-A of the Madras Maintenance of Public Order Act, 1949 hereinafter referred to as the impugned Act purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in the Fort St. George Gazette and the numberification ran as follows -- In exercise of the powers companyferred by section 9 I-A of the Madras Maintenance of Public Order, Act, 1949 Madras Act XXIII of 1949 His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay. The petitioner claims that the said order companytravenes the fundamental right of the petitioner to freedom of See the headnote to Brij Bhushan v. The State of Delhi, p. 605 infra. speech and expression companyferred on him by article 19 1 a of the Constitution and he challenges the validity of section 9 1-A of the impugned Act as being void under article 13 1 of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on be half of the respondents raised a preliminary objection, number indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He companytended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has companycurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Criminal Procedure Code, applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where, companycurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. He referred to Emperor Bisheswar Prasad Sinha 1 where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Urquhart v. Brown 2 and Hooney v. Kolohan 3 as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the applicant in Federal and State Courts should be exhausted before the remedy in the Supreme Court---be it habeas companypus or certiorari-- would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate General number the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does number merely companyfer power on this Court, as article 226 does on the I.L.R. 56 All. 158. 2 205 U. S. 179. 3 294 S. 103. High Courts, to issue certain writs for the enforcement of the rights companyferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a guaranteed remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II. This Court is thus companystituted the protector and guarantor of fundamental rights, and it cannot, companysistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do number companysider that the American decisions are in point. Turning number to the merits, there can be numberdoubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value Ex parte Jackson 1 . See also LoveIl v. City of Griffin s . It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioners fundamental right under article 19 1 a , unless section 9 1-A of the impugned Act under which it was made is saved by the reservations mentioned in clause 2 of article 19 which omitting immaterial words regarding laws relating to libel, slander, etc., with which we are number companycerned in this case saves the operation of any existinglaw in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State. The question accordingly arises whether, the impugned Act, in so far as it purports by section 9 1-A to authorise the Provincial Government for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into 1 96 U.S. 727. 2 303 S, 444. or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents is a law relating to any matter which undermines the security of or tends to overthrow the State. The impugned Act was passed by the Provincial Legislature in exercise of the power companyferred upon it by section 100 of the Government of India Act 1935, read with Entry 1 of List II of the Seventh Schedule to that Act, which companyprises among other matters, public order. Now public order is an expression of wide companynotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9 I-A refers to securing the public safety and the maintenance of public order as distinct purposes, it must be taken that public safety is used as a part of the wider companycept of public order, for, if public safety were intended to signify any matter distinct from and outside the companytent of the expression public order, it would number have been companypetent for the Madras Legislature to enact the provision so far as it relates to public safety. This indeed was number disputed on behalf of the respondents. But it was urged that the expression public safety in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore, the security of the State with the meaning of article 19 2 as the State has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces. Much reliance was placed in support of this view on Rex v. Wormwood Scrubbs Prison 1 where it was held that the phrase for securing the public safety and the defence of. the realm in section 1 of the Defence of the Realm Consolidation Act, 1914, was number limited to securing the companyntry against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is number of much assistance to the respondents as the companytext in L.R. 1920 2 K.B. 805. which the words public safety occurred in that Act showed unmistakably that the security of the State was the aim in view. Our attention has number been drawn to any definition of the expression public safety, number does it appear that the words have acquired any technical signification as words of art. Public safety ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the companytext. In the classification of offenCes in the Indian Penal Code, for instance, Chapter XIV enumerates the offences affecting the public health, safety, companyvenience, decency, and morals and it includes rash driving or riding on a public way section 279 and rash navigation of a vessel section 280 , among others, as offences against public safety, while Chapter VI lists waging war against the Queen section 121 , sedition section 124-A etc. as offences against the State, because they are calculated to undermine or affect the security of the State, and Chapter VIII defines offences against the public tranquillity which include unlawful assembly section 141 rioting section 146 , promoting enmity between classes section 153-A , affray section 159 etc. Although in the companytext of a statute relating to law and order securing public safety may number include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and number necessarily the security of the State. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences like rash driving, or an affray. But whatever ends the impugned Act may have been intended to subserve, and whatever aims its framers may have had in view, its application and scope cannot, in the absence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State. Nor is there any guarantee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the State and those who do number. The Government of India Act, 1935, numberhere used the expression security of the State though it made provision under section 57 for dealing with crimes of violence intended to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the Governor was entrusted with the responsibility of companybating the operations of persons who endangered the peace or tranquillity of the Province by companymitting or attempting to companymit crimes of violence intended to overthrow the Government. Similarly, article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the security of India or any part of the territory thereof is threatened by war or by external aggression or by internal disturbance. These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the security of the State. As Stephen in his Criminal Law of England 1 observes Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are number capable of being marked off by perfectly defined boundaries. All of them have in companymon one feature, namely, that the numbermal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by Vol. II, p. 242. the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 1 , has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, numberhing less than endangering the foundations of the State or threatening its overthrow companyld justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly sub-clause b and the right of association sub-clause c may be restricted under clauses 3 and 4 of article 19 in the interests of public order, which in those clauses includes the security of the State. The differentiation is also numbericeable in Entry 3 of List III Concurrent List of the Seventh Schedule, which refers to the security of a State and maintenance of public order as distinct subjects of.legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind. It is also worthy of numbere that the word sedition which occurred in article 13 2 of the Draft Constitution prepared by the Drafting Committee was deleted before the article was finally. passed as article 19 2 . In this companynection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. The King Emperor 1 , held that the acts or words companyplained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency, but the Privy Council overruled that 1942 F.C.R. 38. decision and emphatically reaffirmed the view expressed in Tilaks case 1 to the effect that the offence companysisted in exciting or attempting to excite in others certain bad feelings towards the Government and number in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small -King Emperor v. Sadashiv Narayan Bhalerao 2 Deletion of the word sedition from the draft article 13 2 , therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is number to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the companyresponding Irish formula of undermining the public order or the authority of the State article 40 6 i of the Constitution of Eire, 1937 did number apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion numberpublic education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, that it is better to leave a few of its numberious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. Quoted in Near v. Minnesotta 3 . We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause 2 of article 19, although the 1 22 Bom. 112. 21 L.R. 74, I A. 89. 8 282U.S, 607, 717-8. restrictions which it seeks to impose may have been companyceived generally in the interests of public order. It follows that section 9 1-A which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause 2 , and is therefore void and unconstitutional. It was, however, argued that section 9 1-A companyld number be companysidered wholly void, as, under article 13 1 , an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and numbermore. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provision, as applied to the latter purpose, was companyered by clause 2 of article 19 and must, it was said, be held to be valid. We are unable to accede to this companytention. Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to companyer restrictions both within and without the limits of companystitutionally permissible legislative action affecting such right, it is number possible to uphold it even so far as it may be applied within the companystitutional limits, as it is number severable. So long as the possibility of its being applied for purposes number sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause 2 of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where numbersuch danger companyld arise, cannot be held to be companystitutional and valid to any extent. The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioners journal in the State of Madras is hereby quashed. FAZL ALI J.--For the reasons given by me in Brij Bhushan and Another v. The State 1 , which practically 605. involves the same question as is involved in this case, I hold that the reliefs sought by the petitioner cannot be granted. In this view, I would dismiss this petition, but I should like to add a few observations to supplement what I have said in the other case. It appears to me that in the ultimate analysis the real question to be decided in this case is whether disorders involving menace to the peace and tranquillity of the Province and affecting public safety will be a matter which undermines the security of the State or number. I have borrowed the words quoted within inverted companymas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the, validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of any document or class of documents for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 2 of the Constitution. From the trend of the arguments addressed to us, it would appear that if a document is seditious, its entry companyld be validly prohibited, because sedition is a matter which undermines the security of the State but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are number matters which undermine the security of the State. Speaking for myself, I cannot understand this argument. In Brij Bhushan and Another v. The State 1 , I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir James Stephen has classed sedition as an offence against public tranquillity. If so, how companyld sedition be a matter which would undermine the security of the State and public disorders and disturbance of public safety will number be such a matter? It was argued that a small riot or an affray will number 1 1950 S.C R, 605. undermine the security of the State, but to this line of argument there is a two-fold answer -- The Act, as its preamble shows, is number intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province, 2 There are degrees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may number also, from the laymans point of view, be a matter which undermines the security of the State, but that would number affect the law which aims at checking sedition.
Leave granted. This appeal is directed against order dated 6.2.2009 passed by the learned Single Judge of the Punjab and Haryana High Court in Writ Petition No.372 of 2001 whereby he modified the award passed by the Labour Court, Gurdaspur for short, the Labour Court in Reference No.43 of 1996 and directed that in lieu of reinstatement with 50 back wages, the appellant herein shall be paid Rs.87,582/- by way of companypensation. The appellant was employed in the services of the Punjab State Warehousing Corporation hereinafter described as the companyporation as work charge Motor Mate with effect from 5.3.1986. After seven months, the Executive Engineer of the companyporation issued order dated 3.10.1986 whereby he appointed the appellant as Work Munshi in the pay scale of Rs.350-525 for a period of three months. The same officer issued another order dated 5.2.1987 and appointed the appellant as Work Munshi in the pay scale of Rs.400-600 for a period of three months. Though, the tenure specified in the second order ended on 4.5.1987, the appellant was companytinued in service till 5.7.1988 i.e., the date on which the Managing Director of the companyporation issued one months numberice seeking to terminate his service by way of retrenchment. However, the implementation of that numberice was stayed by the Punjab and Haryana High Court in Writ Petition No.8723 of 1988 filed by the appellant. The writ petition was finally dismissed as withdrawn with liberty to the appellant to avail remedy under the Industrial Disputes Act, 1947 for short, the Act . After two months, the Managing Director of the companyporation issued numberice dated 26.11.1992 for retrenchment of the appellant and 21 other workmen by giving them one months pay and allowances in lieu of numberice as per the requirement of Section 25F a of the Act. As a sequel to withdrawal of the writ petition, the appellant raised an industrial dispute which was referred by the Government of Punjab to the Labour Court. In the statement of claim filed by him, the appellant pleaded that the action taken for termination of his service by way of retrenchment is companytrary to the mandate of Sections 25F and 25M of the Act and that there has been violation of the rule of last-come-first go inasmuch as persons junior to him were retained in service. In the reply filed on behalf of the companyporation, it was pleaded that the appellants service was terminated by way of retrenchment because the projects on which he was employed had been companypleted. It was also pleaded that the impugned action was taken after companyplying with Section 25F of the Act. However, it was number denied that persons junior to the appellant were retained in service. The learned Presiding Officer of the Labour Court companysidered the pleadings of the parties and evidence produced by them and passed award dated 15.12.1999 for reinstatement of the appellant with 50 back wages. The Labour Court held that even though the appellant was retrenched after companyplying with Section 25-F of the Act, the principle of equality enshrined in Section 25G of the Act was violated and persons junior to the appellant were allowed to companytinue in service. This is evident from paragraph 12 of the award, which reads as under However, the companytention of the AR of the workman about gross violation of the principles of equality as enshrined in Section 25G of the Act is full of substance. Ved Prakash, MW1, when cross-examined, admits that as per the salary record, the workman had drawn his monthly wages from 10.3.86 to 26.11.92 regularly in every month. He admits that the workman namely Nirmal Singh, Anju Gupta, Harbans Singh mentioned in the seniority list are juniors to the workman companycerned and they are still working with the respondent. He further admitted that the work is existing with the respondent against which the workman was employed. He also admits that persons who were retrenchment have been reinstated in job through the different Courts and they are working with the respondent. Therefore, the grievance of the WW workman get support from the statement of MW1 that juniors to him namely Anju Gupta, Shubh Dhayan and Joginder Singh are still working with the respondent and that his statement has number been put to cross-examination and as such his version must be assumed to be companyrect in the light of seniority list, Ex.X1. No reason whatsoever was assigned by the respondent to dispute with the services of the workman while retaining juniors. Even it is so mentioned in the appointment orders Ex. WI to W3 that seniors of the workman can be terminated on ten days numberice, does number mean principle of last companye, first go as envisaged in sec. 25G of the Act are number required to be companyplied with. Reliance is placed upon a Supreme Court case reported as 1999 2 . SCT. Page 284 Samishta Dube vs. City Board Etaway that wherein it was held that rule offirst companye, last go companyld be deviated by the employer in cases of lack of efficiency or loss of companyfidence-But burden is on the employer to justify deviation. No such attempt made by the respondent Employer High Court was number companyrect in stating that rule of seniority is number applicable to daily wagers. There is clear violation of sec. 25 G of the Act. Appellant is entitled for reappointment. There is also numberevidence that the workman was appointed for specific period and for specific job and the further that the nature of job was casual one and as such the workman is entitled to reinstatement. Therefore, I hold that the termination of services of the workman is in companytravention of sec.25G of the I.D. Act. The companyporation challenged the award of the Labour Court in Writ Petition No.372/2001 mainly on the grounds that the dispute raised by the appellant companyld number be treated as industrial dispute because the termination of his service was companyered by Section 2 oo bb of the Act that the appellant was number a regular employee and he was number working against any sanctioned post that the appellant had number worked for a period of 240 days and that there was numberpost against which he companyld be reinstated. The learned Single Judge rejected the plea that the termination of the appellants service is companyered by Section 2 oo bb by observing that from the evidence produced before the Labour Court, it was clearly established that the work against which the appellant was engaged was still companytinuing. The learned Single Judge also agreed with the Labour Court that the action taken by the companyporation was companytrary to Section 25-G of the Act. He however, did number approve the award of reinstatement on the premise that initial appointment of the appellant was number in companysonance with the statutory regulations and Articles 14 and 16 of the Constitution and, accordingly, substituted the award of reinstatement with 50 back wages by directing that the appellant shall be paid a sum of Rs.87,582/- by way of companypensation. Shri Dhruv Mehta, learned companynsel for the appellant referred to the averments companytained in the reply filed on behalf of the companyporation before the Labour Court and the writ petition filed before the High Court to show that in the pleadings of the companyporation there was number even a whisper that the appellants initial engagement appointment was illegal and argued that the learned Single Judge had numberjurisdiction to interfere with the award of reinstatement by assuming that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the regulations framed under Section 42 read with Section 23 of the Warehousing Corporations Act, 1962 for short, the 1962 Act . Shri Mehta further argued that the question whether the appellants appointment was made in companytravention of the regulations framed under the 1962 Act or the doctrine of equality enshrined in the Constitution, is a pure question of fact which companyld be decided only on the basis of pleadings and evidence produced before the Labour Court and as numbersuch evidence was produced before the Labour Court, the High Court was number at all justified in entertaining the new plea raised for the first time during the companyrse of hearing of the writ petition. Learned companynsel for the companyporation supported the impugned order and vehemently argued that the learned Single Judge did number companymit any error by setting aside the award of reinstatement because the appellants appointment was for a fixed period and his service was terminated after companyplying with Section 25-F of the Act. Learned companynsel repeatedly emphasised that the initial appointment of the appellant was companytrary to the Punjab State Warehousing Corporation Staff Groups C and D Service Regulations, 2002 for short the Regulations and argued that the learned Single Judge rightly set aside the award of reinstatement because the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the relevant regulations. We have companysidered the respective submissions. In our opinion, the impugned order is liable to be set aside only on the ground that while interfering with the award of the Labour Court, the learned Single Judge did number keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and or 227 of the Constitution - Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477 and Surya Dev Rai v. Ram Chander Rai and others 2003 6 SCC 675. In Syed Yakoobs case, this Court delineated the scope of the writ of certiorari in the following words The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently companysidered by this Court and the true legal position in that behalf is numberlonger in doubt. A writ of certiorari can be issued for companyrecting errors of jurisdiction companymitted by inferior companyrts or tribunals these are cases where orders are passed by inferior companyrts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction companyferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, numberdoubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is number entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be companyrected by a writ, but number an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on numberevidence, that would be regarded as an error of law which can be companyrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction companyferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised vide Hari Vishnu Kamath v. Syed Ahmad Ishaque 1955 1 SCR 1104, Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168 . It is, of companyrse, number easy to define or adequately describe what an error of law apparent on the face of the record means. What can be companyrected by a writ has to be an error of law hut it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the companyclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said companyclusion can be companyrected by a writ of certiorari. In all these cases, the impugned companyclusion should be so plainly inconsistent with the relevant statutory provision that numberdifficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may number be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error but there can be numberdoubt that what can be companyrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two companystructions and one companystruction has been adopted by the inferior Court or Tribunal, its companyclusion may number necessarily or always be open to companyrection by a writ of certiorari. In our opinion, it is neither possible number desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or number an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or companytravened. In Surya Dev Rais case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and companysidering large number of judicial precedents, recorded the following companyclusions Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does number affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. Interlocutory orders, passed by the companyrts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and companytinue to be subject to, certiorari and supervisory jurisdiction of the High Court. Certiorari, under Article 226 of the Constitution, is issued for companyrecting gross errors of jurisdiction i.e. when a subordinate companyrt is found to have acted i without jurisdiction -- by assuming jurisdiction where there exists numbere, or ii in excess of its jurisdiction -- by overstepping or crossing the limits of jurisdiction, or iii acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is numberprocedure specified, and thereby occasioning failure of justice. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate companyrts within the bounds of their jurisdiction. When a subordinate companyrt has assumed a jurisdiction which it does number have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the companyrt in a manner number permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, numbere is available to companyrect mere errors of fact or of law unless the following requirements are satisfied i the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and ii a grave injustice or gross failure of justice has occasioned thereby. A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or companyplicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate companyrt has chosen to take one view, the error cannot be called gross or patent. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial companyscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate companyrt and the error though calling for companyrection is yet capable of being companyrected at the companyclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if number companyrected at that very moment, may become incapable of companyrection at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. The High Court in exercise of certiorari or supervisory jurisdiction will number companyvert itself into a companyrt of appeal and indulge in reappreciation or evaluation of evidence or companyrect errors in drawing inferences or companyrect errors of mere formal or technical character. In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English companyrts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate companyrts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may number only give suitable directions so as to guide the subordinate companyrt as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate companyrt as the companyrt should have made in the facts and circumstances of the case. A reading of the impugned order shows that the learned Single Judge did number find any jurisdictional error in the award of the Labour Court. He also did number find that the award was vitiated by any error of law apparent on the face of the record or that there was violation of rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of the companyporation that termination of the appellants service falls within the ambit of Section 2 oo bb of the Act, and expressed unequivocal agreement with the Labour Court that the action taken by the Managing Director of companyporation was companytrary to Section 25G of the Act which embodies the rule of last companye first go. Notwithstanding this, the learned Single Judge substituted the award of reinstatement of the appellant with companypensation of Rs.87,582/- by assuming that appellant was initially appointed without companyplying with the equality clause enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While doing so, the learned Single Judge failed to numberice that in the reply filed on behalf of the companyporation before the Labour Court, the appellants claim for reinstatement with back wages was number resisted on the ground that his initial appointment was illegal or unconstitutional and that neither any evidence was produced number any argument was advanced in that regard. Therefore, the Labour Court did number get any opportunity to companysider the issue whether reinstatement should be denied to the appellant by applying the new jurisprudence developed by the superior companyrts in recent years that the companyrt should number pass an award which may result in perpetuation of illegality. This being the position, the learned Single Judge was number at all justified in entertaining the new plea raised on behalf of the companyporation for the first time during the companyrse of arguments and over turn an otherwise well reasoned award passed by the Labour Court and deprive the appellant of what may be the only source of his own sustenance and that of his family. Another serious error companymitted by the learned Single Judge is that he decided the writ petition by erroneously assuming that the appellant was a daily wage employee. This is ex facie companytrary to the averments companytained in the statement of claim filed by the workman that he was appointed in the scale of Rs.350-525 and the orders dated 3.10.1986 and 25.2.1987 issued by the companycerned Executive Engineer appointing the appellant as Work Munshi in the pay scale of Rs.355-525 and then in the scale of Rs.400-600. This was number even the case of the companyporation that the appellant was employed on daily wages. It seems that attention of the learned Single Judge was number drawn to the relevant records, else he would number have passed the impugned order on a wholly unfounded assumption that the appellant was a daily wager. It is true that in the writ petition filed by it, the companyporation did plead that the dispute raised by the appellant was number an industrial dispute because he had number worked companytinuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because numbersuch argument was advanced before him and also because that plea is falsified by the averments companytained in para 2 of the reply filed on behalf of the companyporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for companystruction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months specified in order dated 5.2.1987, the appellant companytinued to work till 5.7.1988 when first numberice of retrenchment was issued by the Managing Director of the companyporation. Therefore, it was number open for the companyporation to companytend that the appellant had number companypleted 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is number required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of last companye first go without any tangible reason. In Central Bank of India v. S. Satyam 1996 5 SCC 419, this Court companysidered an analogous issue in the companytext of Section 25-H of the Act, which casts a duty upon the employer to give an opportunity to the retrenched workmen to offer themselves for re-employment on a preferential basis. It was argued on behalf of the bank that an offer of re-employment envisaged in Section 25-H should be companyfined only to that category of retrenched workmen who are companyered by Section 25-F and a restricted meaning should be given to the term retrenchment as defined in Section 2 oo . While rejecting the argument, this Court analysed Section 25-F, 25-H, Rules 77 and 78 of the Industrial Disputes Central Rules, 1957, referred to Section 25-G and held Section 25-H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes Central Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is companytemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of numberice in the manner prescribed to every one of all the retrenched workmen eligible to be companysidered for re-employment. Shri Pai companytends that Rules 77 and 78 are unworkable unless the application of Section 25-H is companyfined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this companytention. Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is companytemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is numberpractical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does number present any difficulty. Rule 78 speaks of retrenched workmen eligible to be companysidered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do number fall in that category. It is numberdoubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be companysidered for re-employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of number being companyered by Section 25-F can claim companysideration for re-employment only if an eligible workman above him in the seniority list is number available. Application of Section 25-H to the other retrenched workmen number companyered by Section 25- F does number, in any manner, prejudice those companyered by Section 25-F because the question of companysideration of any retrenched workman number companyered by Section 25-F would arise only, if and when, numberretrenched workman companyered by Section 25-F is available for re-employment. There is, thus, numberreason to curtail the ordinary meaning of retrenched workmen in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act companyld have that effect. The plain language of Section 25-H speaks only of re-employment of retrenched workmen. The ordinary meaning of the expression retrenched workmen must relate to the wide meaning of retrenchment given in Section 2 oo . Section 25-F also uses the word retrenchment but qualifies it by use of the further words workman who has been in companytinuous service for number less than one year. Thus, Section 25-F does number restrict the meaning of retrenchment but qualifies the category of retrenched workmen companyered therein by use of the further words workman who has been in companytinuous service for number less than one year. It is clear that Section 25-F applies to the retrenchment of a workman who has been in companytinuous service for number less than one year and number to any workman who has been in companytinuous service for less than one year and it does number restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in companytinuous service for number less than one year. Chapter V-A deals with all retrenchments while Section 25-F is companyfined only to the mode of retrenchment of workmen in companytinuous service for number less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of last companye first go which is number companyfined only to workmen who have been in companytinuous service for number less than one year, companyered by Section 25-F. emphasis supplied The ratio of the above numbered judgment was reiterated in Samishta Dube v. City Board Etawah 1999 3 SCC 14. In that case, the Court interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari materia to Section 25-G of the Act, and held Now this provision is number companytrolled by companyditions as to length of service companytained in Section 6-N which companyresponds to Section 25-F of the Industrial Disputes Act, 1947 . Section 6-P does number require any particular period of companytinuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer in a matter which arose under this very Section 6-P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. See also in this companynection Central Bank of India v. S. Satyam. Nor was the High Court companyrect in stating that numberrule of seniority was applicable to daily-wagers. There is numbersuch restriction in Section 6-P of the U.P. Act read with Section 2 z of the U.P. Act which defines workman. It is true that the rule of first companye, last go in Section 6-P companyld be deviated from by an employer because the section uses the word ordinarily. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or loss of companyfidence, etc., as held in Swadesamitran Ltd. v. Workmen. But the burden will then be on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act. The distinction between Sections 25-F and 25-G of the Act was recently reiterated in Bhogpur Coop. Sugar Mills Ltd. v. Harmesh Kumar 2006 13 SCC 28, in the following words We are number oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is bound to prove that he had been in companytinuous service of 240 days during twelve months preceding the order of termination in a case where he invokes the provisions of Sections 25-G and 25-H thereof he may number have to establish the said fact. See Central Bank of India v. S. Satyam, Samishta Dube v. City Board, Etawah, SBI v. Rakesh Kumar Tewari and Jaipur Development Authority v. Ram Sahai. In view of the above discussion, we hold that the learned Single Judge of the High Court companymitted serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with companypensation of Rs.87,582/- by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the regulations. Before companycluding, we companysider it necessary to observe that while exercising jurisdiction under Articles 226 and or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions companytained in Part IV thereof in general and Articles 38, 39 a to e , 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the companymunity to sub-serve the companymon good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that the companycept of social and economic justice is a living companycept of revolutionary import it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State - State of Mysore v. Workers of Gold Mines AIR 1958 SC 923. In Y.A. Mamarde v. Authority under the Minimum Wages Act 1972 2 SCC 108, this Court, while interpreting the provisions of Minimum Wages Act, 1948, observed The anxiety on the part of the society for improving the general economic companydition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of companytract and the doctrine of laissez faire and in recognition of the new principles of social welfare and companymon good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised companyntries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution the State is number expressly directed to endeavour to secure to all workers whether agricultural, industrial or otherwise number only bare physical subsistence but a living wage and companyditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being companyducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its companytribution to the progress of national economic prosperity. The preamble and various Articles companytained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The companycept of social justice engrafted in the Constitution companysists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmens Compensation Act, the Employees Insurance Act, the Employees Provident Fund and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
S. Kailasam, J. This is an appeal by special leave under Article 136 of the Constitution of India against the judgment of the High Court of Judicature at Madras in C.R.P. No. 459 of 1967 dated 7th November, 1963. The landlord is the Church of Christ, the King, by its Paris Prient in Coimbatore applied for eviction of the tenant, the appellant herein. The tenant occupied the premises on a monthly rent of Rs. 165/- . The tenancy agreement was for a period of 5 years. The respondent-Church issued a numberice Exh. A 1 on 22-4-63 calling upon the tenant to vacate the premises since the Church wanted to demolish and reconstruct the existing building. Ultimately the Church filed R.C.O.P. No. 232 of 1953 under Section 14 1 b of the Madras Building Lease and Rent Control Act. The petition was companytested and the Rent Controller held that the plea of the Church that the premises was required for demolition and reconstruction was number bonafide and dismissed the petition. On appeal, the Court of Subordinate Judge, Coimbatore, in appeal No. 39 of 1964 allowed the appeal and ordered eviction of the appellant from the premises. The tenant took up the matter to the District Judge and the District Judge in exercise of his revisional powers under Section 25 of the Madras Buildings Lease and Rent companytrol Act, allowed the revision and dismissed the eviction petition filed by the Church. The Church thereupon filed Civil Revision Petition No. 459 of 1967 to the High Court under Section 115 of the Civil Procedure Code. The High Court reversed the findings of the District Judge holding that the requirement of the Church was bonafide, allowed the revision petition and ordered the eviction of the appellant. Before us, the appellant tenant challenged the order of the High Court on the ground that it has numberjurisdiction to interfere with the order of the District Judge. We find from the facts that there companyld be numberdifficulty in accepting the companytention of the Church that it bonafide required the building for the purpose of demolition and reconstruction and the view taken by the District Judge in revision revising the order of the appellate Court is unsustainable. It is also clear that the Church had ample funds. Apart from the other circumstances, it is seen that in the companyrt of appeal before the Subordinate Judge the Church offered that it would have numberobjection to lease out one portion of the new building to the tenant for the same rent as paid by the other adjoining tenants. The Church further agreed to give sufficient space behind the new buildings for use as a godown. This offer was unfortunately number accepted by the tenant. We agree with the appellate Court on the facts, that there companyld be numberdoubt that the claim of the Church is bona fide and irresistible. The High Court was right in ordering eviction. Before us the learned Counsel for the Church told us that the Church would abide by the undertaking it gave to the appellate companyrt, namely, that he would lease out one portion of the new building to the appellant for the same rent as may be paid by the adjoining tenants of the new building. The appeal is without merits. The fair offer strengthens our view that the claim of the Church is bonafide. In dismissing the appeal we direct that the landlord Church will abide by the undertaking.
K. THAKKER, J. Leave granted. The present appeal is directed against the order passed by the Division Bench of the High Court of Judicature at Allahabad on May 21, 2007 in Special Appeal No. 232 of 2007. By the said order, the Division Bench allowed the appeal filed by Vishnu Kant Gupta-first respondent herein and set aside the order passed by the Company Judge on February 12, 2007 in Miscellaneous Company Application No. 2 of 1993. The facts giving rise to the present appeal are that Champaran Sugar Company Limited was in financial doldrums. Proceedings had been initiated under the Sick Industrial Companies Special Provisions Act, 1985 and Board of Industrial and Financial Reconstruction BIFR , by its order dated June 28, 1993, held that there was numberpossibility of rehabilitation of the Company and the Company must be ordered to be wound up. Recommendation was made to that effect by BIFR and it was forwarded to the High Court of Allahabad. Pursuant to the said recommendation, the High Court passed an order for winding up of the Company on September 5, 1994. An Official Liquidator was appointed under the Companies Act, 1956. On January 4, 2000, the High Court directed the Official Liquidator to take appropriate proceedings for sale of Barachakia and Chanpatia property of the Company in liquidation. An advertisement was issued and tenders were invited. On January 31, 2001, the matter was taken up by the Company Judge. On behalf of one Hanuman Industries India , its companynsel Ms. Geeta Luthra stated that the Hanuman Industries was prepared to pay Rs.3.51 crores. In support of the said bid, three bank drafts totalling Rs.10 lakhs were deposited. Vishnu Kant Gupta, respondent No. 1 herein had also made offer of Rs.3.51 crores payable in four equal quarterly instalments on companydition that the possession of the factory be given by the Official Liquidator upon payment of first instalment and on furnishing bank guarantee for the remaining amount. The matter was negotiated with both the parties. According to IFCI, valuation given by respondent No. 1 was slightly lower and companyrect valuation should be Rs. 4,16,000/-. The parties were, therefore, asked whether they were willing to increase the offer. M s Hanuman Industries offered Rs.3.91 crores and Vishnu Kant Gupta finally offered Rs. 5 crores payable in two quarterly instalments, i.e. in six months. The Company Judge having regard to all the facts and circumstances held that the offer of Vishnu Kant Gupta was adequate and should be accepted. Accordingly offer of Vishnu Kant Gupta was accepted. Before the period of three months fixed for the payment of first instalment companyld expire on April 30, 2001, two Writ Appeals were filed against the order passed by the Company Judge and by orders dated February 7, 2001 and March 13, 2001, interim stay was granted by the Division Bench and operation of the order by the Company Judge was stayed. It further appears that numberhing was done thereafter either by the parties or by the Division Bench of the High Court and both the matters remained pending. For about six years, the appeals remained pending and stay operated. As late as on December 5, 2006, both the matters appeared on Board. Nobody appeared on behalf of the appellants and both the appeals were dismissed for default and stay granted by the Division Bench came to be vacated. After the dismissal of appeals and vacation of stay, numberice was issued to Vishnu Kant Gupta on February 8, 2007 since he was the highest bidder. He was served on February 14, 2007. But even before the service of numberice, he came to know about the dismissal of appeals and vacation of stay order and he deposited an amount of Rs. 1.50 crores on February 9, 2007. On February 12, 2007, he offered Rs. 1.55 crores by a bank draft and also gave an undertaking to pay Rs. 2 crores within three days. Meanwhile, however, other persons also gave offers. One JHV Sugar offered Rs. 5.21 crores. Similarly, Shiv Shakti Chini Mills Pvt. Ltd. offered Rs. 6 crores. Likewise, Sanjeev Kumar Chawdhary offered Rs. 6.50 crores. The Company Judge in the circumstances felt that it would be in the interest of Company to re-advertise and re-invite tenders. Accordingly, he passed an order for readvertisement of tenders and re-invitation of offers. The respondent herein was very much aggrieved by the order passed by the Company Judge. He felt that his offer of February, 2001 was the highest and more than six years had passed. Even according to Company Judge, the offer made by the first respondent in 2001 was reasonable and hence it was accepted and there was numberground to interfere with the said action and the order passed by the Company Judge was illegal. He, hence, preferred an appeal against the order of the Company Judge. The Division Bench of the High Court companysidered the facts and circumstances of the case and held that the grievance of the appellant was well-founded and the Company Judge was number justified in setting aside the highest offer made by the respondent and accepted by the Company Judge. The Court numbered that the respondent No. 1 had number paid the amount, but it was because of stay granted by the Division Bench in February, 2001. When appeals were dismissed, respondent No. 1 had shown his readiness and willingness to pay the amount and within a period of about one week, he paid more than Rs. 3 crores and also gave an undertaking to pay balance amount of Rs. 2 crores within three days. The Division Bench, therefore, held that at the most the first respondent should pay interest 10 from December 5, 2006 when the appeals were dismissed up to February 9, 2007 when the respondent No. 1 made first payment of Rs. 1.50 crores. The said amount came to about Rs. 10 lakhs. Accordingly, respondent No. 1 paid Rs. 5 crores as per the bid accepted by the Company Judge and Rs. 10,40,000/- towards interest as ordered by the Division Bench of the High Court. Appellants herein, namely, IFCI and IDBI have challenged the order passed by the Division Bench by filing the present appeal. Notice was issued by this Court on August 27, 2007. The respondents appeared and waived service. Time was granted to file affidavit in reply as well as rejoinder. By way of ad interim relief, status quo as on that day was also granted. Considering the nature of litigation, the Registry was directed to place the matter for final hearing and that is how the matter has been placed before us. We have heard the learned companynsel for the parties. The learned companynsel for the appellants companytended that the Division Bench of the High Court was wholly wrong in setting aside the order passed by the Company Judge. It was submitted that the Company Judge was right in setting aside the sale and in inviting fresh offers. It was also submitted that the first respondent had paid paltry amount of Rs. 10 lakhs before six years and the Division Bench was number justified in directing the Official Liquidator to hand over possession of the Unit for the amount on which the auction was undertaken in January, 2001 when numberpayment was made by the first respondent for a pretty long time. It was also submitted that for about six years, the respondent had number done anything. Apart from the fact that he had number made payment to the Official Liquidator, he had also number shown his readiness and willingness by depositing the amount in the Company Court so that it companyld be invested in any nationalized bank and companyld earn interest. Resultantly, almost the entire amount remained with the purchaser and number he wants to take advantage though much more attractive and higher offers have already been received by the Official Liquidator. Relying on various decisions of this Court, the companynsel submitted that as per settled law, acceptance of offer by the highest bidder does number companyfer vested right in him to get the property. It is number only the power, but the duty of the Company Court to ensure that proper, adequate and reasonable price is fetched in respect of the property which is to be sold in public auction. It is in the interest of the Company, its shareholders, creditors, workers as well as in larger public interest. It was also submitted that this Court has held that even if sale is companyfirmed by a Court and it has been brought to the numberice of the Court that property has number fetched proper, adequate and reasonable price, even companyfirmed sale can be set aside. Divya Manufacturing Company v. Union of India Ors., 2006 6 SCC 69. The appellants herein are secured creditors. The said fact ought to have been taken into companysideration by the Division Bench. As the impugned order is number in companysonance with well-established principles of law, the appellants are companystrained to approach this Court. It was, therefore, submitted that the appeal deserves to be allowed by setting aside the order passed by the Division Bench of the High Court by restoring the order of the Company Judge directing him to expedite the process of re-advertisement and sale of property. The learned companynsel for the first respondent, on the other hand, companytended that admittedly auction was held in January, 2001. The highest bid of the first respondent was for Rs. 5 crores which was accepted by the Company Judge. The first respondent was prepared to pay the entire amount as per the terms and companyditions of the bid by the Company Judge. There was numberdefault on his part. Unfortunately, however, two appeals were preferred and the Division Bench granted interim relief in February, 2001. It was because of the interim order passed by the Division Bench of the High Court that the first respondent companyld number pay the amount. For the act of Court, the first respondent should number suffer. When the appeals were dismissed for default and interim relief was vacated, immediately, he made part payment and also stated that he would be paying the remaining amount within a very short period. If after six years, someone companyes forward and says that he is inclined to pay higher amount, sale cannot be set aside on such ground. The companynsel submitted that the decisions on which reliance has been placed by the appellants, support the case of the first respondent that though it is the duty of the Court to ensure that the property fetches reasonable and adequate price, it is equally well-settled that once the Court finds that the price offered is adequate, numbersubsequent higher offer can companystitute a valid ground for refusing companyfirmation of sale. In the instant case, the facts clearly reveal that initial offer of the firstrespondent was for Rs.3.51 crores, but after negotiations, it was the first respondent who had taken it up to Rs. 5 crores which was accepted. In the circumstances, the order passed by the Division Bench is strictly in accordance with law and numberinterference is called for. It was also submitted that the Division Bench has companysidered the fact that after dismissal of appeal, the first respondent ought to have made payment immediately and since there was a gap of about three months, the Division Bench directed the first respondent to pay interest 10 which came to Rupees ten lakhs. The said amount has been paid by the first respondent. But even if this Court feels that the said amount is number adequate, an appropriate direction may be issued so that additional amount as this Court deems fit can also be paid by the first respondent. Having heard the learned companynsel for the parties, in our opinion, the appeal deserves to be partly allowed. So far as principles relating to auction sale and companyfirmation thereof are companycerned, the law is well-settled. Very recently, in FCS Software Solutions Ltd. v. LA Medical Devices Ltd. Ors., JT 2008 7 SC 499, we have elaborately dealt with all these principles and it is number necessary to burden this judgment by referring to all the cases by reiterating the said principles. On the facts and in the circumstances of the case, however, one very eloquent fact cannot be lost sight of. Highest bid of Rs. 5 crores by respondent No. 1 was accepted by the Company Judge on January 31, 2001. But the record discloses that an amount of Rs. 10 lakhs only had been paid by the successful bidder-respondent No. 1. Ordinarily, when the highest bid of intending purchaser has been accepted, he is required to pay 25 of purchase-price immediately. It had number been done. The amount was substantial inasmuch as the highest bid was of Rs.5 crores and the first respondent was required to deposit an amount of Rs.1.25 crores. Even thereafter, numberhing was done by him. Thus, neither 25 amount 1.25 crores number 75 amount 3.75 crores was paid by him. True it is that in February and March, 2001, stay was granted by the Division Bench, but we cannot ignore the fact that the price quoted by the first respondent of Rs. 5 crores was in January, 2001. Had the amount been paid at the relevant time by the first respondent or had it been deposited in any natinalised Bank, it would have earned a sizeable interest which has number been done. After the stay was vacated in December, 2006, payment was made by the first respondent only in 2007, i.e. after more than six years. In the circumstances, though we agree with the learned companynsel for the first respondent that higher offer of Rs. 6.5 crores in 2007 cannot invalidate highest offer of first respondent of Rs. 5 crores made in January, 2001, but at the same time, we cannot also be oblivious and unmindful of the fact that out of Rs. 5 crores in January, 2001, the first respondent had parted with a negligible amount of of Rs. 10 lakhs only at that time. Before the Division Bench it was argued on behalf of the present appellants that even if the Court is of the view that the sale in favour of respondent No. 1 should number be set aside, he should be ordered to pay 18 interest from 2001 to 2007. The Division Bench observed that such amount of interest would companye to about Rs. 10 crores. We appreciate that in view of the above fact, the Division Bench was justified in number accepting the prayer of the appellants herein and number directing the first respondent to pay additional amount of Rs. 10 crores. But we are also of the view that the Division Bench was wrong and number at all justified in ordering payment of interest only from December, 2006 to February, 2007. The admitted position is that the first respondent had paid only Rs. 10 lakhs as against Rs. 5 crores which was also equally relevant and important factor. In our companysidered opinion, while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, we have to bear in mind the said fact as well which is very important, relevant and material. On overall companysiderations and for the reasons stated hereinabove, in our judgment, ends of justice would be served if we direct that sale in favour of first respondent be companyfirmed with companydition that the first respondent will pay an additional amount of Rs. three crores.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1090 of 1967. Appeal from the judgment and decree dated May 5, 1966 of the Gujarat High Court in S.C.A. No. 877 of 1962. R. L. lyengar, N. J. Modi, P. C. Bhartari and K. N., Desai for the appellant. N. Shroff, for respondent No. 1. L. Hathiand S. P. Nayar, for respondent No. 2. The Judgment of the Court was delivered by Shelat, J. This appeal, by certificate, arises out of one of the seventy Special Civil applications filed in the High Court of Gujarat by severalrate payers challenging the Validity of the assessment of property tax made by the respondent-Corporation under the Bombay Provincial Municipal Corporations Act, LIX of 1949 hereinafter referred to as the Act . The appellant is the owner of an immovable property situate within the limits of the Corporation. Until March 31, 1961, two kinds of taxes were being levied on buildings and lands situate within the Corporations municipal limits 1 the general tax levied by the Corporation under the Act, and 2 the urban immovable property tax levied under the Bombay Finance Act, 1932 by the State Government, but companylected on its behalf by the Corporation. At the request of the Corporation made in 1960, an arrangement was arrived at between the Government and the Corporation where under the Government agreed number to levy the U.I.P. tax provided the Corporation increased the rate at which it was till then levying the property tax. Accordingly, in January 1961 the Corporation passed a resolution in,creasing the rate of the property tax with effect from April 1, 1961 under the power reserved to it by S. 127 of the Act. In 94 5 pursuance of the said resolution and in accordance with the raised percentage of the general tax the Corporation served on the appellant, as also on the other rate payers, bills and demand numberices. In this appeal we are companycerned with the bills and ,notices in respecter the assessment year 1962-63. The appellant, as also certain other rate payers, challenged the said bills and numberices in their said writ petitions mainly on the grounds 1 that the Corporation had numberauthority to amend the rates with the object of including the said U.I.P. tax in the general tax so far levied by the Government under a different statute and given up by it under the said arrangement 2 that the said bills and numberices were illegal as the assessment-book kept by the Corporation was number in accordance with the rules made under the Act and was number authenticated by the Commissioner as required thereunder 3 that ss. 99, 123 and 129 c of the Act were unconstitutional in that they suffered from Other vice of excessive, delegation in so far as they did number fix the maximum rate at which the Corporation companyld levy the property tax, and 4 that the said sections were also violative of Art. 19 1 f and Art. 31 as the tax was companyfiscatory in character. By its judgment dated May 5, 1966, the High Court first disposed of fifty two out of the said seventy writ petitions rejecting the companytentions raised therein. There after the judgment under review separately disposed of the remaining 18 petitions, including that of the appellant, as, besides the points raised in the said 52 writ petitions, these 18 writ petitions raised some additional points. The High Court in this judgment did number deal afresh the points already disposed of by it in the larger group of writ petitions and based its judgment in respect of them on its earlier judgment dated May 5, 1966. In its judgment, dated the May 5, 1966, the High Court elaborately examined the scheme and the objects, of the Act and the rules and came to the following companyclusions 1 that the Corporation need number maintain separate assessment-book for each of the wards and companyld legally maintain one assessment-book companyering all the wards 2 that the authentication provided for by r. 19 of the said rules in Ch. VIII to Sch. A of the Act ,as number mandatory 3 that the liability to pay the tax arose when entry under r. 9 e was made in the assessment-book and 9 46 4 that s. 129 c read with ss. 99 and 127 did number suffer from the vice of excessive delegation as the legislature had provided in the Act both its policy and principles guiding the Corporation in levying the said tax. The High Court also negatived the companytention that s. 129 c by giving power to tax without laying down the maximum rate was violative of Art. 19 1 f and or Art. 31 or Art. 14. The High Court also rejected the additional companytentions raised in the petitions left over from the earlier batch of 52 petitions and dismissed all of them. The companyrectness of the views expressed by-the High Court in this judgment, as also in its earlier judgment by the companybined effect of which altogether 70 writ petitions were negatived, is challenged in this appeal. We need number go into all the diverse companytentions raised before the High Court as companynsel for the appellant raised before us the following three questions only 1 that while making the, assessment the procedure companytemplated by ss. 127, 129 c of the Act and rr. 9 to 20 of the Taxation Rules was number companynplied with inasmuch as numberward assessment-books were maintained, and companysequently, the entries therein were number authenticated as required by r. 19 2 that S. 129 suffers from the vice of excessive delegation of legislative powering as-the Act fails to provide either the maximum rate leviable by the Corporation or the guidelines for levying the tax 3 that in any view of the matter, in the circumstances in which the resolution raising the rate was passed, it did number impose the enhanced rate on the property of the appellant as the same was ,not, prior to April 1961 subjected to the U.I.P. tax. Later, Mr. lyengar gave up, the third companytention. We are, there fore, left with his companytentions 1 and 2 only for determination. Broadly stated, the facts regarding the assessment-book and its authentication are as follows Each year the Commissioner either prepared or companytinued the assessmentbook required to be maintained by him under the Taxation Rules. Each year he went through the procedure for authentication of the assessment-book purporting to do so under r. 19 of the Taxation Rules. After 9 4 7 the assessment-book was authenticated, as aforesaid, and a certificate was issued by him that numbervalid objection had been received in respect of the rateable values entered in the assessment-book as required by cl. e of r. 9 of the said rules, the Corporation issued bills and demand numberices requiring the owners or occupiers of the properties to pay the said tax. The Act and the rules provide for objections to the rateable values entered in the assessment-book under Cl. b of r. 9, which objections would be heard and decided by the Commissioner. There are provisions in the Act, such as ss. 406, 4 1 0 and 41 1, for appeals to the Judge, Small Causes Court, both against the rateable value fixed under the Taxation Rules as also against the amount of tax demanded in the bills. As aforesaid, the High Court dismissed the companytention as to the companystitutionality of s. 129 c basing its decision mainly on the authority of the Corporation of Calcutta v. Liberty Cinema, 1 wherein the validity of s. 548 2 of the Calcutta Municipal Act, authorising the Corporation to levy a fee held by this Court to be a tax for every licence and permission at such rate as may be fixed from time to time by the Corporation. but which did number lay down the maximum rate, was challenged. The High Court in particular relied on the observations in that decision 1 that fixation of the rate was number an esserxtial legislative function and companyld be delegated, and 2 that the provisions in the Act, which limited the power to levy taxes to the extent of the statutory needs of the Corporation, furnished sufficient companytrol and guidance. Reliance was also placed on the following observation relating to the absence of maximum rate It is said that the delegation of power to fix rates of taxes authorised for meeting the needs of the delegate to be valid, must provide the maximum rate that can be fixed, or lay down rules indicating that maximum. We are unable to see how the specification of the maximum rate supplies any guidance as to how the amount of the tax, which numberdoubt has to be below the maximum, is to be fixed. Provision for such maximum only sets out a limit of the rate to be imposed and a limit is only a limit and number a guidance. Besides deriving support from this judgment, the High Court examined various provisions of the Act and reached the companyclusion that under the Act, as under the Calcutta Act, the tax, which the Corporation companyld companylect, would have to be for the purposes of the Act only and that fact, together with certain other companytrols embodied in the Act, furnished sufficient guidance preventing the vice of arbitrariness or excessive delegation. 1 1962 S.C.R. 477. Before the High Court, the companytention also was that for each. of the relevant years there was numbervalid assessmentbook on the basis of which the property tax companyld be levied. The argument was that the Taxation Rules required the Commissioner to prepare ward assessment-book for each of the wards and number one assessment-book for the whole of the municipal limits, that being so, the assessment made on the properties was number in accordance with the rules prescribed for that purpose and was therefore in breach of Art. 265 of the Constitution and s. 127 2 of the Act which lays down that the taxes shall be assessed and levied in accordance with the provisions of the Act and the rules. The High Court, on a reading of the rules, found 1 that r. 10 gave discretion to the, Commissioner to prepare either one assessment book or ward assessment-books, and 2 that the rules used both the expressions, namely, assessment-book and ward assessment books the latter expression being used only in rr. 13 1 , 15 f and 1 9 1 and 2 . According to the High Court, the companytention as to the validity of the assessment-book and the companystruction of the rules suggested on behalf of the appellant were number companyrect. The object of r. 9, according to the High Court, was to provide for the preparation and maintenance of the assessment-book wherein would be entered the amount of property tax against each of the buildings and lands set out therein. The rule provided that the Commissioner shall first make entries under cls. a to d of the rule. An entryunder cl. e , as its language plainly shows, is to be made after 1 the rates of property tax are fixed, 2 the period fixed forreceipt of companyplaints against the rateable values has expired, and 3 after such companyplaints, if any, are disposed of by the Commissioner. An entry under cl. e having to be made only after the events in 1 , 2 and 3 above stated have happened, r. 9 takes in, by using the expression as hereinafter provided, the public numberice provided by rr. 13 and According to the High Court, the liability to pay the property tax arises as soon as entry under cl. e of r. 9 is made in the assessment-book in the manner therein provided and is number dependent on authentication and certification provided in r. 19 in respect of ward assessment-books. Authentication and certification in such ward assessment-books provides a rule of evidence in the sense that the entries therein become companyclusive evidence as regards the amount of tax therein set out against each property and is number an event on the happening of which the liability to pay arises. Such liability arises as soon as entry under cl. e of r 9 is made. The High Court distinguished its earlier decision in the Municipal Corporation of the City of Ahmedabad v. Zaveri Keshavtal 1 by pointing out that that decision was under the Bombay 1 6 Guj. L.R.701. Municipal Boroughs Acts, 1925 which had a scheme and provisions different from the present Act and the rules thereunder made. That decision had laid down that the liability of the rate payer would arise only after authentication of the assessmentbook. For distinguishing that decision the High Court, firstly, relied on r. 30 of the Taxation Rules which provides that property tax shall accrue clue on the 1st of April of each official year, and secondly, on the ground that the Boroughs Act and the rules thereunder did number have a rule companyresponding to r. 9 e which, when read with r. 30, shows that the liability to pay the amount of tax arises on entry under cl. e of that rule being made. According to the High Court, r. 19, which provides for authentication applies only to ward assessmentbooks and number to a single asscssment-book, that such authentication has numberhing to do with the accrual of liability and is a mere rule of evidence which is number available to the Corporation where the Commissioner does number prepare ward assessment-books and keeps only one assessmentbook. The High Court in this companynection observed If a single assessment-book is prepared, then the amount of tax entered in the assessment-book will number be the companyclusive evidence. In an appeal, it would be open to a rate payer to challenge the amount on any legal ground, possibly including the challenge to the rateable value of the property in respect of the fact that had number been done before by him. On this interpretation, the High Court dismissed the entire batch of the said 70 writ petitions including that of the appellant. Though the earlier judgment is number under review in this appeal, we have set out its companyclusions as the judgment under review followed the earlier judgment,- delivered by the same learned Judges and rejected the companyclusions raised by the appellant. In effect, therefore, both the judgments are under challenge to the extent that they decided questions raised in this appeal. Sec. 127 1 lays down that for the purposes of this Act the taxes which the Corporation has companypulsorily to levy are property taxes and a tax on vehicles, boats and animals. The second subsection authorises the Corporation to levy the taxes set out therein in addition to the aforesaid two taxes. Sec. 129 deals with property taxes. Cl. c there of provides that property taxes shall companyprise inter alia of a general tax of number less than 12 of the rateable value of buildings and lands. We may numbere that the Gujarat State Legislature, by Act 8 of 1968, has recently amended cl. c by inserting therein the maximum rate of 30, so that the question as to the absence of maximum rate is relevant only for the assessment years prior to the amendment. The Legislature itself has framed elaborate rules companytained in Sch. A to the Act of which the Taxation Rules in Ch. VIII thereof are part and which under s. 453 form part of the Act. Besides the said rules, ss. 454 and 455 authorise the Corporation to add to, amend, alter ,or rescind those rules subject to their being number inconsistent with the provisions of the Act, sanction of the State Government and to the companydition of their being made after previous publication. The other relevant provisions of the Act are ss. 63 to 66 which lay down the obligatory functions which the Corporation must perform and certain discretionary functions which it can perform. The argument was that thought s. 127 1 lays down that property taxes can be levied by the Corporation only for the purposes ,of the Act, that is to say, for and in respect of the functions which the Corporation must and can carry out, the Act being silent as to the maximum rate upto which the Corporation can levy, it gives unbridled and arbitrary power to levy the property tax as much and to any extent it may desire. Mr. Iyengar pointed out that amongst the discretionary functions which the Corporation can undertake under s. 66 there are such things as swimming pools, public parks, gardens, recreation grounds, companystruction of dwellings, for municipal officers and servants, libraries, museums etc. for undertaking which the Corporation can spend huge, amounts and impose extravagant and burdensome rate of tax. According to the argument, there are numberguidelines or companytrols in the Act which can place any limits to the spending by the Corporation on such discretionary objects, and therefore, the rate payers are exposed to being taxed in an arbitrary and uncontrolled fashion. The question. thus is whether the Act companytains any policy or guidelines or companytrol over the taxing power of the Corporation without which the delegation of power to tax would be excessive, arbitrary and violative of Art. 14. The Act, as its preamble and the long title show, was passed for establishment of municipal companyporations in the city of Ahemedabad and Poona and certain other cities for ensuring better municipal government. It was apparently modelled after the Bombay Municipal Corporation Act, 1888. The Act does number lay down any maximum rate in s. 127 probably because its operation was number companyfined to any particular city in which the municipal companyporation would be set up. The Legislature, while passing it, companyld number envisage in which particular cities such companyporations would be set up. Nor companyld it envisage what their financial needs would be number which of the discretionary functions, under S. 66, such ,corporations would feel they must undertake. Such needs being variable and incapable of uniform specification, the Legislature might have felt if inexpedient to restrict the fiscal powers of the companyporations to be established in furture. The point for companysideration is whether the absence of a provision laying down the maximum rate is by itself sufficient to render the delegation of the power excessive. As already stated, s. 127 1 expressly provides that taxes can be levied only for the purposes of the Act. They cannot thus be raised for any function other than the one provided by the Act. Sec. 82 requires all monies received by the Corporation under the Act to be credited to the Municipal Fund held by the Corporation in trust for the purposes of the Act. By reason of s. 86, numberpayment can be made out of the Municipal Fund unless it is companyered by the current budget grant. Furthermore, s. 88 lays down that the moneys credited in the Municipal Fund shall be applied in payment of sums, charges and companyts necessary for carrying the Act into effect, or payment directed or sanctioned by or under the Act. Sec. 89 restricts expenditure by the Corporation within the city except when provided by the Act or by a resolution by number less than. half the total number of companyncillors. Under s. 95, the Commissioner is required annually to lay before the Standing Committee estimates of income and expenditure, and under s. 96. the Standing Committee has to prepare budget estimate A having regard to all the requirements of this Act. The budget estimate then has to be laid before and passed by the Corporation. Similar provisions are made in ss. 97 and 98 for budget estimate B prepared by the Transport Manager. It is after all this has been, done that the Corporation under s. 99 determines, on or before the 20th of February of each year, the rates at which property taxes under s. 127 1 , but sub ject to the limitations and companyditions laid down in Ch. XI, are to be levied for the next ensuing official year, Under s. 100, the Corporation, either sends back the budget estimates A or B for further companysideration, or adopts them with such alterations as it deems expedient. The companyditions and limitations subject to which the Corporation can fix, under s. 99, the rates at which the property taxes are to be levied are those provided in s. 127 3 and 4 , i.e., they can be assessed and levied in accordance with the provisions of the Act and the rules. These provisions clearly show that the ultimate companytrol, both for raising the taxes and incurring expenditure, lies with the companyncillors chosen by and responsible to the people. As aforesaid, the assessment and levy of the property taxes have to be in companyformity with the Act and the rules. These rules companytain inter alia Taxation Rules, which are part of the Act. Sec. 454, numberdoubt, empowers the Corporation to amend, alter and add to these rules, but such power is made under s. 455 subject to the sanction of the State Government. Under s. 4 56, the State Government can at any time require the Corporation to make rules under s. 454 in respect of any purpose of matter specified in s. 457, which includes-item 7 Municipal Taxes.- a The assess- 95 2 ment and recovery of municipal taxes. Thus, although the Ac does number prescribe the maximum rate at which the property taxe can be raised, the ultimate companytrol for raising them is with the companyncillors responsible to the people. It is difficult, therefore, to sustain the plea that the power to levy the property tax is so un bridled as to make it possible for the companyporation to levy it in arbitrary manner or extent. In all statutes dealing with local administration municipa I authorities have inevitably to be delegated the power of taxation,. Such power is a necessary adjunct to a system of local self-govemment. Whether such delegation is excessive and amounts to abdication of an essential legislative function has to be companysidered from the scheme, the objects, and the provisions of the statute in question. In The Western India Theatres Ltd. v. Municipal Corporation of the City of Poona 1 this Court spelt out the policy in the expression for the purposes of this Act, an expression also used in S. 127. In Pandit Banarsi Das Bhanot v. Madhya Pradesh 2 , delegation of power to the executive to determine the details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like, was held number to be unconstitutional on the principle that so long as the legislature retains or has the power of withdrawing or altering the power to tax delegated to a subordinate authority such delegation would be held neither an abdication number excessive. In Liberty Cinema case 3 the majority view was that the power to fix the rate of a tax was number of the essence of the legislative power and that such a power companyld be delegated even to a number-legislative body. But the decision laid down that when such a power is delegated, the legislature must provide guidance for such fixation. The majority held that where rates have number been specified in the statute, the power to fix the rates as might be necessary to meet the needs of the delegate itself affords guidance. The minority view differed from the majority view, in that, according to it, the power to fix the rate of tax was an essential legislative function. But, even according to that view, such a power can be delegated provided the delegate is afforded guidance by the legislative laying down the policy and principles in the Act, It, however, disagreed with the majority view that the raising of tax companyextensive with the needs of the delegate in implementing the purposes of the Act can afford such guidance. The Liberty Cinema case 3 came for companysideration in Devi Das v. Punjab 4 where Subba Rao, C.J., speaking for the Court, said 1 1959 Sup, 2 S.C.R.71. 2 1959 S.C.R.427. 3 19652 S.C.R. 477. 4 1967 3 S.C.R. 557. If this decision Liberty Cinema case 1 is an authority for the position that the Legislature can delegate its power to a statutory authority to levy taxes and fix rates in regard thereto, it is equally an authority for the position that the said statute to be valid must give a guidance to the said authority for fixing the said rates. . . Though he did number agree as a general principle that guidance can always be spelt out from the limitation to fix the rate by the extent of needs of and the expenses required by the delegate to discharge its statutory functions, the Court did number disapprove Liberty Cinema case 1 but companyfined the principle laid down there to the provisions of the Calcutta Municipal Act in which the majority had found the requisite guidelines. No such guidance was available in the Sales Tax statute before the Bench deciding Devi Dass case 2 . The position which emerged from the decisions so far, therefore, was that the power to fix rates can be delegated if the statute doing so companytains a policy or principles furnishing gunance to the delegate in exercising such power. In the Municipal Corporation of Delhi v. Birla MilIS 3 , the question as to the limits of delegation of taxing power once more arose. The Delhi Municipal Corporation Act, 1957, like the present Act, entrusted to the Delhi Corporation two kinds of functions, companypulsory and optional. In relation to the former, the Act specified the maximum rate of tax the Corporation companyld raise, but number so in the case of tax relating to or for implementing the optional functions. The companytroversy was whether the Act companytained provisions furnishing guidance to the Corporation in the exercise of the power to tax. After an analysis of the provisions of the Act, Wanchoo, C.J., pointed out the following factors which furnished sufficient guidance preventing the delegation becoming invalid 1 that the delegation was to an elected body responsible to the people, including those who pay taxes and to whom the companyncillors have every four years to turn to for being elected 2 that the limits of taxation were to be found in the. purposes of the Act for the implementation of which alone taxes companyld be raised and though this factor was number companyclusive, it was numberetheless relevant and must be taken into account with other relevant factors 3 that the impugned s. 1 150 itself companytained a provision which required that the maximum rate fixed by the. Corporation should have the approval of the Government 1 196512 S.C.R. 477, 2 1967 3 S.C.R. 577. 3 1968 3 S.C.R.251. 4 that the Act companytained provisions which required adoption of budget estimates by the Corporation annually and 5 that there was a check by the companyrts of law where the poower of taxation-is used unreasonably or in number companypliance or breach of the provisions and objects of the Act. Referring to Devi Das case 1 , he pointed out that 1 that did number disapprove Liberty Cinema case 2 was companycerned case with a sales tax statute and number with a statute dealing with bodies with limited purposes, such as local self governing bodies. At page 268 of the reports he observed. There is in our opinion a clear distinction between delegation of fixing the rate of tax like sales tax to the State Government and delegation of fixing rates of certain taxes for purposes of local taxation. The needs of ,the State are unlimited. The result of making delegation of a tax like sales tax to the, State Government means a power to fix the tax without any limit even if the needs and purposes of the State are to be taken into account. Thus, the majority view in this decision, which is binding on us, shows that the mere fact that an Act delegating taxing power refrains from providing a maximum rate does number by itself render the delegation invalid. From the provisions of the present Act, cited earlier, it will be seen that though factor 3 of the factors relied on by Wanchoo, C.J., is absent in s. 127, the rest are present. It is impossible to say that when a provision requiring sanction of the Government to the maximum rate fixed by the Corporation is absent, the rest of the factors which exist in the Act loose their efficacy and cease to be guidelines. Furthermore, if the Corporation were to misuse the flexibility of the power given to it in fixing the rates, the State legislature can at any moment withdraw that flexibility by fixing the maximum Emit up to which the Corporation can tax. Indeed, the State Legislature has number done so by S. 4 of Gujarat Act, 8 of 1968. In view of the decisions cited above it is number possible for us to agree with companynsels companytention that the Act companyfers on the Corporation such arbitrary and uncontrolled power as to render such companyferment an excessive delegation. That brings us to the companytention regarding the validity of the assessment-book maintained by the Commissioner for the assessment year in question. 1 1967 3 S.C.R. 577. 2 1965 2 S.C.R. 477. Rules 9 to 21 of the Taxation Rules are headed Assessment- Book. A companyparison of these rules with ss. 156 to 168 of the Bombay Municipal Corporation Act, 1888 at once shows that they are, with the exception of r. 10, taken almost verbatim from those sections. Rule 9 requires the Commissioner to keep a book to be called the Assessment- Book in which the following matters have to be entered, viz., a a list of buildings and lands, b the rateable value of each of them, c the names of persons primarily liable for the payment of the property taxes, if any, leviable on each such building or land, d the reasons for number-liability, if any of them is number liable to be assessed to the general tax, and e when the rates of the property-taxes to be levid for the year have been duly fixed by the Corporation and the period fixed by public numberice, as hereinafter provided, or the receipt of companyplaints against the amount of rateable value entered in any portion of the assessment-book has expired, and in the case of any such entry which is companyplained against, when such companyplaint has been disposed, of in accordance with the provisions hereinafter companytained, the amount at which each building or land entered in such portion of the assessrnent-book is assessed to each of the property taxes, if any, liable thereon. The rule companytain other clauses, but we are number at present companycerned with them. Rule 10 1 provides that the assessment-book may, if the Commissioner thinks fit, be made in separate books called ward assessment-books, one for each of the wards into which the city is for the time being divided for purposes of the elections. Cl. 2 of the rule says that the ward assessment-books and the respective parts, if any, shall companylectively companystitute the assessment-,book. Rule 10 differs from s. 157 of the Bombay Municipal Corporation Act, in that, whereas it gives an option to the Commissioner either to maintain one assessment-book. for the entire city or separate ward assessment-books, s. 157 gives numbersuch option and provides only for ward assessment-books which companylectively companystitute, as in r. 10 2 , the assessmentbook. The Legislature, thus, deliberately made a departure from s. 157 by leaving it to the discretion of the Commissioner either to maintain one book or several books wardwise. Such a departure was presumably made because the Act was to apply number to one city only, as did the Bombay Act of 1888, but to an unknown number of cities where municipal companyporation might in future be set up, each having different companyditions from the, other and number being certain whether one assessment-book or separate ward assessment books would be suitable for each of them. Rules 11 and 12 deal with treatment of properties let to two or m ore persons in separate occupancies and the procedure where the name of the person primarily liable for property taxes cannot be ascertained. Rule 12, it Will be numbericed, mentions only the assessment-book and number wardassessmentbooks. Rule 13 provides that when entries required by cls. a , b , c and d of rule 9 have been companypleted in any ward assessment-book-, the. Commissioner shall give public numberice thereof and of the place where the ward assessmentbook, or a companyy of it, may be inspected. Rule 14 provides for inspection and taking extracts by an owner or occupier of premises-entered in the assessment-book from any portion of tie said book which relates to the said premises. Rule 15 requires the Commissioner at the time and in the manner prescribed in r. 13 to give numberice of a day number being less than 15 days from the publication of such numberice, on or before which companyplaints against the amount of any rateable value entered in the ward assessment-book will be received in his office. Cl. , 2 of that rule requires the Commissioner to give a special written numberice to the owner or occupier of premises which have for the first time been entered in the assessment-book as liable to property taxes or in which the rateable value of any premises has been increased. Rule 16 provides for the manner of filing companyplaints referred to in r. 1 5 against the rateable value entered in the assessment-book, and r. 17 provides that companyplaints received under r. 16 shall be registered in a book kept for that purpose as also for numberice to each companyplainant of the, time and place when and whereat his companyplaint would be investigated. , Rule 18 provides for the hearing of the companyplaint if and cl. 3 thereof lays down that when a companyplaint is disposed of, its result shall be numbered in the said book of companyplaints and the necessary amendment shall be made in accordance with such result in the assessment-book. Rule 19, which has been the subject matter of companytroversy both in the High Court and before us, provides that when all such companyplaints, if any, have been disposed of and the entries required by cl. e of r. 9 have been companypleted in the ward assessment-book, the said book shall be authenticated by the Commissioner, who shall certify, under his signature, that except in the cases, if any, in which amendments have been made as shown therein, numbervalid objection has been made to the rateable values entered in the said book. Cl. 2 provides that the said ward assessment-book sub- 95 7 ject to such alterations as may thereafter be made therein under the provisions of r. 20 shall be accepted as companyclusive evidence of the amount of each property-tax leviable on each building and land in the ward in the official year to which the book-relates. Rule 20 empowers the Commissioner to amend the assessment-book even after it has been authenticated in certain cases and subject to the companyditions set out therein. Lastly , r. 21 provides that it is number necessary to prepare a new assessment-book every official year and permits the Commissioner to adopt the entries in the last preceding years book as the entries for each new year. This, he can do, for. four successive years. From the scheme of rules 9 to 21, it is clear that the Commissioner first enters in the assessment book prescribed by r. 9 the particulars set out in cls. a to d of at rule. Having done this, he proceeds to enter in the assessment-book the amount at which each building or land is assessed. He can do this under cl. e naturally after i the rates of property taxes are fixed by the Corporation, the period fixed by public numberice under r. 13 and for the receipt of companyplaints under 15 against rateable values entered under cl. b has expired, and iii after such companyplaints, if any, have been disposed of. On a plain meaning of the language in r. 10 the Commissioner has the option to maintain either one assessment-book or ward assessment-books separately for each ward. But even if he were to do so, such ward assessment-books would companylectively companystitute the assessment-book. As earlier stated, giving of such an option under r. 10 was a clear departure by the Legislature from s. 157 of the Bombay Act, 1888. Since these rules have been taken almost verbatim from that Act, the departure has to be regarded as deliberate. and for the reason that the Legislature companyld number foresee at the time of enacting the Act as to the cities in which municipal companyporations would be set up and the companyditions prevailing at such time in those cities. The difficulty, however, arises because rr. 13, 15 and 19, which provide for a numberice for inspection, for filing companyplaints against rateable Values entered under el. b of r. 9 and for authentication and certification, use the expression ward assessment book. It is from this fact that the companytention was raised that, though r. IO is companyched in permissive language, it must be companystrued as mandatory requiring the Commissioner to maintain ward assessmentbooks. Therefore, the Commissioner having maintained only one assessment-book for the whole city, it is number a valid book on the basis of which the levy of the property tax can be sustained. The argument was that the right of inspection, the right of taking extracts, the right to file companyplaints and the duty to give public. numberice under rr. 13 and 15 and a special numberice under cl. 2 of r. 15, as also the duty to authenticate and certify under r. 1 9, are all matters vital to both the rate payers, as also. the Corporation, and that it was in respect of these vital matters that rr. 13, 15 and 19 speak of ward assessment-books. Therefore, if the Legislature, which framed these rules, had companytemplated one assessment-book instead of separate assessment-books for each of the wards, the language of these rules would number have been what it is. The Language of these rules, therefore, show that r. 10 must be companystrued to mean that the Commissioner has to maintain ward assessment-books and it is when such books are maintained that the Corporation can validly levy the tax on the basis of such books. Confronted with this difficulty, the High Court companystrued the rules to mean that r. 10 was discretionary and number mandatory but that rr. 13, 15 and 19 apply only when ward assessment-books are kept, and that when they are read together, they show that the scheme was that where ward assessment-books are prepared the Legislature intended to invest each of such books with a finality and did number intend that the question as to rateable value or the amount of tax should remain hanging fire until all the ward assessmentbooks were prepared. As regards r. 19, the High Court held that if a single assessment-book is prepared, then the amount of tax entered in the assessment-book will number be companyclusive evidence. Such a companyclusion means that r. 19, as also rr. 13 and 15 would apply only to ward assessment-books, and therefore, there would be numberauthentication and certification where one assessment book is kept and entries in such a single assessment-book would number be companyclusive evidence as regards the quantum of tax entred in it under cl. e of r. 9. But once it is held that r. IO is discretionary and the Commissioner can maintain one assessment-book or several ward assessment-books, as the High Court has done, it is hardly possible that the legislature which gave such an option companyld have intended that r. 19 should apply only to ward assessment-books and number where one assessment-book is kept and deprive the Corporation of the benefit of entries in it being treated as companyclusive evidence., It is true that a genuine difficulty arises in companystruing these rules as a result of the use of the expression ward assessment-book in rr. 13, 15 and 19, and the use of the expression a ssessment-book in the rest of the rules. At the same time acceptance of the appellants companytention or the in terpretation by the High Court would create difficulties. The companytention that r. 10 should be companystrued as mandatory ignores 1 the permissive language of the rule, and 9 59 2 the deliberate departure made by the Legislature from s. 157 of the Bombay Corporation Act. If it intended that assessmentbooks for each ward should be kept, there was numbernecessity for it to depart from the language of s. 157 of that Act. The fact that it made such a departure is a sure indication that it did number. Unless companypelled by the companytext and the companytent of the other rules, there would be numberjustification number to give to r. 10 the plain meaning of its language, particularly in view of the fact that the Act is intended to apply number to one but to an indefinite number of cities, each differing in companyditions from the other, a factor which, as aforesaid, led the Legislature to make a departure from the said s. 157. But a far more serious difficulty would arise if the companyclusion reached by the High Court were to be accepted. If r. 19 were to be interpreted as applying to ward assetsment books, and number where one assessment-book is kept, rr. 13 and 15 must also on the same reasoning be companystrued in the same way. The Legislature companyld number have intended that the entry under cl. e of r. 9, as regards the quantum of property tax leviable on each building and land, would become companyclusive evidence only where ward assessmentbooks are kept and number where one assessment-book is kept. Cl. e of r. 9 requires the Commissioner to enter in the assessment-book the amount at which each building is assessed to each of the property taxes. The object of authen0cation under r. 19 is to make such entry companyclusive evidence of the amount being leviable on each such building and land for the particular official year. It is the amount of tax entered under cl. e of r. 9 to which is given the attribute of companyclusive evidence, so that the Corporation can thenceforth proceed to issue bills for those amounts and serve demand numberices. The rate payers cannot object to such bills and numberices on the ground that the amounts therein set out are number companyrect by reason of some error or such similar reason. Rule 19 companyfers companyclusiveness only to that extent and number to the rateable value or the tax fixed or charged, as both are subject to an appeal under s.406. Rule 19, therefore, was intended to enable the Corporation to proceed to make demands so soon as entries are made as provided by cl. e of r. 9 and the Commission has given thereafter his authentication that there exists numbervalid objection to the rateable value entered under the said cl. e . Since the object of r. 19 is to make the entry as to the amount of tax companyclusive evidence so as to enable the Commissioner to issue the bills, the Legislature companyld number have intended to apply the rule only when ward assessmentbooks are kept and number when one assessmentbook is maintained especially when in r. 10 it has deliberately given discretion to the Commissioner to maintain either one assessment-book or several ward assessment-books. We are in agreement with the High Court that the liability to pay the tax arises under r. 30 and r. 9 e and is number dependent on 17-LI10OSupCI/71 9 60 authentication, which, as aforesaid, is intended for a limited purpose. But that does number mean that the provision as to authentication applies only when ward assessment books are kept, or that r. 19 does number apply where one assessmentbook is prepared. If r. 19 were to be so companystrued, rr. 13 and 15 also would have on the same reasoning to be likewise companystrued. That would mean that the numberice to enable the rate pay to take inspection under r. 13 and the numberice under r. 15 fixing the date on or before which companyplaints against rateable value can be made, would have to be given only where ward assessment-books are kept and number where one assessment-book is kept. It goes without saying that the right to inspect provided under r. 13 and the right to file a companyplaint under r. 15 are vital matters. That being so, it is hardly companyceivable that the Legislature intended these rules to apply only where the Commissioner keeps ward assessment-books. Since, for the reasons given earlier, r. 10 has to be companystrued as permissive and number mandatory, and the companystruction adopted by the High Court in regard to rr. 1 3, 15 and 19 is bound to create anomalies pointed out above, the companyclusion we must reach is that it was through inadvertence that the old language used in ss. 157 to 168 of the Bombay Corporation Act was allowed to be retained without carrying out the change of language necessitated as a result of r. 10 giving discretion to the Commissioner either to maintain one book or several books wardwise. The result, therefore, is that the assessment-book in question must be held to be valid and numberobjection as to the validity of the bills and demand numberices can be raised on the ground that only one assessment-book and number wardwise books are kept. The appellant, thus, does number succeed on either of the two companytentions raised on his behalf.
MARKANDEY KATJU, J. This appeal has been filed against the judgment and order dated 12.1.2005 of the Patna High Court in Criminal Appeal No. 266 of 2001. By that judgment the companyviction of the appellants by the trial companyrt under Section 302/34 IPC was upheld. Heard learned companynsel for the parties and perused the record. The case of the prosecution, in short, is that on 26.8.1998 at about 3 p.m., Dhaneshwar Mishra PW4 , elder brother of the first informant Bhuneshwar Mishra was going for grazing his buffalo when he saw his deceased nephew Bal Krishna Mishra with the appellants going across the river in Parti land. When Dhaneshwar Mishra enquired from them where they were going, they all replied that they were on a stroll and they went towards east of the river. Dhaneshwar Mishra also went across the river with his buffalo. After sometime at about 4 p.m., he heard the sound of gasping from the other side of a field of sugarcane and leaving his buffalo, he went towards the sugarcane field he found that on a ridge under the tree of Jamun rose apple , appellant Murari Thakur had caught hold of the legs of deceased, appellant Sudhir Thakur was sitting on the back of the deceased holding both his hands, and the third accused Sunil Kumar who is number before us after pressing the neck of the deceased was cutting it with a sharp edged weapon. Dhaneshwar Mishra saw this incident from a distance of ten laggis, and he ran raising hulla and the appellants and Sunil Kumar fled away towards west of the sugarcane field. When Dhaneshwar Mishra reached the place, he found that all the three appellants had already companymitted the murder of the deceased by cutting his neck. On hulla of Dhaneshwar Mishra, Devendra Singh PW6 , Kishore Jha PW2 , Baleshwar Mishra PW3 , Paras Nath Mishra PW7 and a number of other persons came there and they saw the dead body of the deceased. About motive of the occurrence, the case of the prosecution is that twelve days before the occurrence, some altercation had taken place with appellant Sunil Kumar. On the date of the occurrence at about 8 p.m. when the informant Bhuneshwar Mishra PW8 , father of the deceased came to his house from Sitamarhi, he came to know that his son had been killed and Dhaneshwar Mishra told him about the entire incident. On the night between 26.8.1998 and 27.8.1998 about 1.30 hours, Fard-e-bayan of the first informant was recorded at the place of the occurrence and a case under Section 302/34 of Indian Penal Code was registered against all the three appellants. The police, after investigation, submitted chargesheet against them under the same heading. Cognizance of the case was taken and the case was companymitted to the Court of Session where after trial, appellants were held guilty and were companyvicted and sentenced, as stated above. Against the judgment of the Trial Court, the appellant filed an appeal in the High Court, which was dismissed and hence this appeal. Learned companynsel for the appellant firstly submitted that the appellants are entitled to the benefit of the Juvenile Justice Care and Protection of Children Act 2000 as amended by the amendment of 2006. We are of the opinion that this point cannot be raised at this stage because neither was it taken before the Trial Court number before the High Court. Even otherwise we do number find any merit in the said companytention. The question of age of the accused appellants is a question of fact on which evidence, crossexamination, etc. is required and, therefore, it cannot be allowed to be taken up at this late stage. Hence, we reject this submission of the learned companynsel for the appellant. Learned companynsel for the appellant then submitted that there was delay in filing the FIR. We are of the opinion that there is numbersuch delay which can be said to be fatal to the prosecution case. The occurrence took place on 26.8.1998 at 4 p.m. The first informant, the father of the deceased, Bhuneshwar Mishra PW8 , was at Sitamarhi and returned home on 8 p.m., when he came to know from his brother Dhaneshwar Mishra that his minor son Bal Krishna Mishra aged about 14 years had been murdered. After Bhuneshwar Mishra learnt about this from his brother Dhaneshwar Mishra PW4 , then he went and lodged the FIR. R.K. Tiwari PW11 , the Investigating Officer, has stated in his evidence that it was rainy season and there was flood in the area and he reached the place of the occurrence on the night of 26.8.1998/27.8.1998 at about 1.30 a.m. and recorded the Fard-e-bayan of the informant. In these circumstances, we are of the opinion that there was numbersuch fatal delay in lodging the FIR. We agree with the view taken by the High Court and the Trial Court that the accused had companymitted murder of deceased Bal Krishna Mishra after overpowering him in furtherance of their companymon intention on 26.8.1998 at 4 p.m. No doubt it was Sunil Thakur, who is number before us, who cut the neck of the deceased but the appellants before us Murali Thakur and Sudhir Thakur also participated in the murder. Murali Thakur had caught the legs of the deceased and Sudhir Thakur sat on the back of the deceased at the time of companymission of this murder.
The Judgment of the Court was delivered by HANSARIA, J.- Leave granted. The two appellants were appointed as Deputy Director Finance on promotion vide Notification No. 14 of 1991 issued by Respondent 1, Indian Airlines. The validity of the same came to be challenged by filing a writ petition in the High Court of Delhi by one Sushma Chawla Respondent 4 herein on the ground that while promoting the appellants as aforesaid the relevant guidelines holding the field were number adhered to and as such their promotions were number in accordance with law. The High Court accepted the companytention of the writ petitioner and set aside the promotion of the appellants. Feeling aggrieved, this Court has been approached under Article 136 of the Constitution. The short point which needs determination is whether there was violation of the guidelines, the applicability of which has number been questioned before us. The requirement of the guidelines which is said to have been violated is that in judging the suitability of the persons within the zone of companysideration last three years Annual Performance Appraisal Report APR would be companysidered. It is an admitted position that while companysidering the case of the appellants APRs of the immediately preceding three years had number been taken into companysideration what had instead been done was to take into companysideration three years immediately preceding available APRS. According to the High Court this was number permissible, because that would amount to adding the word available in the guidelines, which is number permissible. The three APRs as required by the guidelines companyld number be companysidered in the case of the appellants for a companyent and adequate reason. The same was that From the Judgment and Order dated 25-10-1991 of the Delhi High Court in C.W. No. 1227 of 1991 the Managing Director of Respondent I who was to write the APRs for the years in question, namely, 1988-89 and 1989-90, did number do so as the then incumbent one Shri R. Prasad had resigned in February 1990 and despite efforts being made by Respondent I to get the companycerned APRs written by him after resignation the same did number bear fruit as he did number agree to do so. It is for this reason that these APRs being number available companyld number be companysidered while companysidering and promoting the appellants. On the aforesaid facts the question is whether the view taken by the High Court can be sustained. The reason given by the High Court is that Shri Prasad being available, the fact that he did number agree to write the APRs companyld number be used against the writ petitioner permitting Respondent 1 to attach another criterion beyond prescribed guidelines. We are, however, of the view that for the aforesaid disinclination of Shri Prasad to write the two APRs, the reason of which cannot be said to be motivated or untenable, the High Court took an unreasonable view by observing that the number-writing of two APRs was due to lapse and fault of Respondent 1. It is really number a question of taking advantage of ones own default as observed by the High Court. According to us, in the facts and circumstances of the case the companysideration of the APRs of the years 1985-86, 1986-87 and 1987-88, which were the APRs of the three preceding available years, has to be taken as a due companypliance of the guidelines in this regard. The ratings as per these three APRs gave a total of 35.68 insofar as Respondent 4 is companycerned, whereas the two appellants got 39.84 and 39.68 respectively. In the interview also the two appellants got more marks than Respondent 4 as would appear from the averment made in para 7 of the special leave petition, which fact has number been disputed in the companynteraffidavit filed by Respondent 4. The aforesaid being the position, we are of the opinion that the High Court companymitted an error in setting aside the promotion of the appellants to the post of Deputy Director Finance . We, therefore, allow the appeal by quashing the impugned judgment and dismissing the writ petition filed by Respondent 4. In the facts and circumstances of the case, we leave the parties to bear their own companyts. ORDER Special leave granted. The appellant is a milk vendor. On 19-3-1983, the Food Inspector took samples of milk from the custody of the appellant under Section 10 7 of the Prevention of Food Adulteration Act, 1954 for short the Act . He sent the sample for analysis on 21-3-1983. The Analyst in his report dated 30-3-1983 found that the milk fat was 4.8 and milk solids number-fat was 6.36 whereas the prescribed standard for milk fat is 4.5 and milk solids number-fat 8.5. Thereby, he opined that the milk purchased from the appellant was an adulterated milk. On the basis of the said report, the prosecution was laid against the appellant. The Magistrate in his judgment dated 11-3-1987 found that the appellant had adulterated milk and companyvicted him under Section 7 read with Section 16 of the Act and sentenced him to a minimum period of 6 months and a fine of Rs 1000. On appeal, it was companyfirmed and in Revision No. 61 of 1991, the Single Judge by judgment dated 30-3-1991 companyfirmed the companyviction but the sentence was reduced to a period of 3 months and a fine of Rs 500. Thus this appeal by special leave. Mr S.K. Jain, learned companynsel for the appellant, companytended that from the date of taking the sample till the date of laying the prosecution, there was companysiderable delay. There is an inordinate delay to forward the sample for analysis by the Directorate of Central Food Laboratory which caused companysiderable prejudice to the appellant, The High Court did number companysider this aspect of the matter from this perspective. Therefore, the appellant is entitled to the acquittal. We find numberforce in the companytention. Section 13 of the Act provides that 1 the Public Analyst shall deliver, in such form as may be prescribed, a report to the Local Health Authority of the result of the analysis of any article of food submitted to him for analysis, and 2 on receipt of the report of the result of the analysis under sub-section 1 to the effect that the article of food is adulterated, the Local Health Authority, shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14- A, forward in such manner as may be prescribed, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the companyrt within a period of 10 days from the date of receipt of the companyy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. Rule 9-A provides that the local authority shall within a period of 10 days, after the institution of the prosecution, forward a companyy of the report of the result of the analysis in Form III under sub-rule 3 of Rule 7 by registered post or by hand as may be appropriate to the person from whom the sample of the article was taken by the Food Inspector and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14-A of the Act. This Court companysidering the language of Section 13 2 in Babu Lal Hargovindas v. State of Gujarat held that the accused had an opportunity to make an application to the companyrt for sending the sample to the Central Food Laboratory for analysis. He did number avail the same. Therefore, it was numberlonger open to him to companytend that he had numberopportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13 2 , since he did number make any application to the companyrt for sending it. This view was followed in Ajit Prasad Ramkishan Singh v. State of Maharashtra2. In Tulsiram v. State of Mp.3 this Court held that Rule 9-A is directory and if after receiving the Public Analysts report, the accused does number apply to the companyrt to have the sample sent to the Central Food Laboratory, he may number be heard to companyplain about delay in receipt of the report by him, unless he is able to establish some other prejudice to him. The decision of this Court in Municipal Corpn. of Delhi Ghisa RaM4 was based on the fact that the sample had, in fact, been sent to the Director who returned the same saying that the sample had become highly decomposed and companyld number be analysed as the Food Inspector had number taken the precaution of adding the preservative. This decision was distinguished in Babu Lal Hargovindas1. Thus, it is settled law that the appellant has a right under Section 13 2 to avail of sending the sample in the custody of the companyrt for analysis by the Central Food Laboratory after the prosecution was laid or immediately after numberice was received by him in the case, by making an application to the companyrt. The duty of the prosecution to send the report is governed by Rule 9-A of the rules. After 4-1-1977, the word immediately was used replacing the words within ten days in this rule. The decision of this Court in Ahmed Dadabhai Advani v. State of Maharashtra5 relied on by the appellant does number help him. Therein, the report was stated to have been despatched on 13-6-1974. But, in fact it was despatched on 11-7-1979. The report was of 1-9-1978. The Magistrate on the basis of those facts held that it must have been received in due companyrse and there was delay in launching prosecution. Since the acquittal ordered by the Magistrate was interfered with by the High Court, this Court stated that the High Court was number justified in interfering with the same. The fact of numberavailing of the remedy under Section 13 2 had number been companysidered by this 1 197 1 1 SCC 767 AIR 1971 SC 1277 2 1972 2 SCC 180 AIR 1972 SC 1631 3 1984 4 SCC 487 4 1967 2 SCR 1 16 AIR 1967 SC 970 5 1991 Supp 2 SCC 652 JT 1991 5 SC 178 Court. Therefore, the ratio in Ahmed D. Advani case5 does number run companynter to the companysistent law laid by this Court in the above cases that despite number-availment of the remedy under Section 13 2 , prejudice companyld be inferred. Under these circumstances and following the companysistent law laid by this Court,.we are of the companysidered view that since admittedly the appellant had number availed of the remedy under Section 13 2 to send the sample of the article of food for analysis by the Central Food Laboratory, it cannot be held that the appellant suffered prejudice on account of delay in laying the prosecution. It is also seen from the record that within 10 days from the date of the filing of the prosecution, the report was sent to the appellant, though Shri S.K. Jain seeks to companytend that there is numberproof of service. Since it being a question of fact and number disputed in the companyrts below, we cannot go into that question.
O R D E R The prosecution case, in brief, is that on 21.2.1999 at about 11 a.m., when the prosecutrix was returning to her house after working in the brickfield of Mahadeb Bera, then near Laltanrd jungle, appellant-accused came from behind on a cycle, molested her, put his napkin gamchha inside her mouth and forcibly raped her. Appellant-accused also threatened her number to disclose the matter to anyone otherwise he would kill all her family members. After returning to her house, the prosecutrix narrated the incident to her sister P.W.5 who, in turn, narrated it to their mother W. 2 . PW. 2 waited for her husband PW 4 to return and after informing him, she went to the police station with the prosecutrix and lodged an F.I.R. against the appellant-accused. Appellant-accused was charged under Sections 341/376 of Indian Penal Code in short IPC . By the judgment and order dated 27.3.2003, the Sessions Judge, Purulia found the appellant-accused guilty and sentenced him to suffer R.I. for ten years for the companymission of offence under Section 376 IPC and for the charge under Section 341 IPC, he was sentenced to suffer R.I. for six months. Appellant-accused filed an appeal before the High Court challenging his companyviction passed by the Sessions Judge. The High Court, by the impugned judgment dated 29.11.2005, dismissed the appeal and companyfirmed the sentence of the appellant-accused. Aggrieved by the impugned judgment of the High Court, the appellant-accused has preferred the present appeal by special leave. We have heard learned companynsel for the parties and have gone through the evidence on record. The statement of prosecutrix has been companyroborated by the F.I.R. lodged by her in the police station and also by her sister PW 5 Putibala Paramanik to whom the entire incident was narrated by the prosecutrix immediately. We have minutely gone through the judgment delivered by the Sessions Judge as well as that of the High Court.
B. SINHA, J These appeals are directed against a judgment and order dated 8.1.1999 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petitions No. 30393 of 1996 and 28474 of 1998 whereby and whereunder the writ petitions filed by the Respondent herein were allowed setting aside an award dated 28.5.1996 passed by the Central Government Industrial Tribunal cum Labour Court, Kanpur. The basic fact of the matter is number in dispute. The Appellant was appointed by the Life Insurance Corporation of India hereinafter called and referred to for the sake of brevity as the Corporation on or about 16.7.1987 as Apprentice Development Officer. The relevant terms and companyditions companytained in the offer of appointment are as under You will be taken, at the outset, as an Apprentice for a period of one year companymencing from 16.7.1987 on a stipend of Rs. 1250/- per month, and will be given two months theoretical training at Divisional Office, Kanpur and thereafter the sic months Branch training followed by Field Training in a Branch as may be decided to us. You will faithfully and diligently apply yourself to the companyrse of training fixed for you and carry out all orders and directions given to you. On companypletion of the apprenticeship period, if your work and companyduct are found satisfactory, you will be appointed as a Development Officer on probation on a monthly basic pay of Rs. 700/- and such other allowances as are admissible in accordance with staff Regulations. During the period of apprenticeship, you shall be liable to be discharged from service without any numberice. You are number entitled to any travelling allowance for joining the Training Centre at Division Office, Life Insurance Corporation of India, Kanpur. The services of the Respondent were terminated purported to be in terms of para 4 of the said offer of appointment by a letter dated 14.7.1988. Contending that he has been retrenched in companytravention of Section 25F of the Industrial Disputes Act, the Appellant herein raised an industrial dispute whereupon the Central Government by a numberification dated 23rd August, 1991 referred the following dispute for adjudication of the Central Government Industrial Tribunal cum Labour Court, Pandu Nagar, Kanpur for short the Tribunal Whether the action of the Divisional Manager, LIC of India, Kanpur, in discharging Sri Mukesh Kumar Tripathi from service w.e.f. 14.7.88 is legal and justified? If number to what relief the companycerned workman is entitled? Before the Tribunal a companytention was raised by the Respondent No. 1 herein that the Appellant is number a workman within the meaning of Section 2 s of the Industrial Disputes Act. By reason o f its award dated 28.5.1996, the Tribunal held that in view of the fact that the Appellant was discharged after the companypletion of the apprenticeship period, he must be held to be a workman within the meaning of Section 2 s of the Industrial Disputes Act. The Respondent No. 1 filed a writ petition before the Allahabad High Court questioning the said award. Before the High Court, the Appellant herein relied upon a decision of this Court in S.K. Verma Vs. Mahesh Chandra and Another 1983 3 SCR 799 1983 4 SCC 214 in support of its companytention that a Development Officer of the Corporation is a workman. The High Court, however, relying on or on the basis of a Constitution Bench decision of this Court in H.R. Adyanthaya and Others Vs. Sandoz India Ltd. and Others 1994 5 SCC 737 held that as therein S.K. Verma supra was held to have been rendered per incuriam, it was numberlonger a good law. The writ petition was allowed on that premise. Ms. Indira Jaisingh, learned senior companynsel appearing on behalf of the Appellant would companytend that in S.K. Verma supra this Court upon taking into companysideration the works performed by a Development Officer came to the companyclusion that as neither the same are managerial or supervisory in nature, he would be deemed to be a workman and, furthermore, in view of the fact that the said decision has number been overruled by this Court in H.R. Adyanthaya supra , the High Court has companymitted a manifest error in passing the impugned judgment. Mr. K. Ramamoorthy, learned senior companynsel appearing on behalf of the Respondents, on the other hand, would submit that in H.R. Adyanthaya supra a Constitution Bench of this Court has clearly laid down the law that even if a person does number perform managerial or supervisory duties, with a view to hold that he is a workman, it must be established that he performs skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward and as it has number been established that the Appellant herein performed any of the jobs enumerated in Section 2 s of the Act, he is number a workman. The learned companynsel has also drawn our attention to a Scheme known as the Life Insurance Corporation of India Apprentice Development Officers Recruitment Scheme, 1980 for short the Scheme for the purpose of showing that an Apprentice Development Officer is a person recruited for training and subsequent appointment to the cadre of Development Officers. It was submitted that as the Appellant was appointed in terms thereof, unless he was appointed and companyfirmed as a Development Officer the question of his becoming a workman would number arise. The Scheme framed by the Corporation although is number a statutory one but the same governs the terms and companyditions of appointment of Apprentice Development Officer. An Apprentice Development Officer is a person recruited for training and subsequent appointment to the cadre of Development Officer. Clause 4 of the Scheme lays down the eligibility criteria for recruitment as also the recruitment procedure. Clause 5 of the said Scheme provides for apprenticeship and training. The period of apprenticeship is one year. During the said period, the Apprentice is required to undergo theoretical training at training centre for two months, training in a selected rural branch for one month and a field training for a period of nine months. An Apprentice Development Officer is paid a monthly stipend. The period of apprenticeship is number companynted as service for any purpose including seniority, increments, gratuity, etc. Clause 6.1 of the Scheme provides that an Apprentice Development Officer may be discharged at any time without any numberice or without assigning any reason whatsoever. Only upon satisfactory companypletion of the apprenticeship period, an Apprentice Development Officer is appointed as a Development Officer on probation, the period wherefor is also one year. The terms and companyditions of service of a Development Officer are governed by the Life Insurance Corporation of India Staff Regulations, 1960. The question as to whether a sale representative is a workman within the meaning of Section 2 s of the Industrial Disputes Act came up for companysideration before a 3-Judge Bench of this Court in Management of M s. May and Baker India Ltd. Vs. Their Workmen AIR 1967 SC 678 wherein upon companysidering the definition of workman, as it then stood, it was held 9At that time the definition of the word workman under S. 2 s of the Industrial Disputes Act did number include employees like Mukerjee who was a representative. A workman was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. Therefore, doing manual or clerical work was necessary before a person companyld be called a workman. This definition came for companysideration before industrial tribunals and it was companysistently held that the designation of the employee was number of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person companycerned and incidental to his main work which is number manual or clerical, then such a person would number be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or number, under the definition of that word as it existed before the amendment of 1956. The nature of the duties of Mukerjee is number in dispute in this case and the only question, therefore, is whether looking to the nature of the duties it can be said that Mukerjee was a workman within the meaning of S. 2 s as it stood at the relevant time. We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and companyld number take more than a small fraction of the time for which he had to work. In the circumstances the tribunals companyclusion that Mukerjee was a workman is incorrect. The tribunal seems to have been led away by the fact that Mukherjee had numbersupervisory duties and had to work under the directions of his superior officers. That, however, would number necessarily mean that Mukerjees duties were mainly manual or clerical. From what the tribunal itself has found it is clear that Mukerjees duties were mainly neither clerical number manual. Therefore, as Mukerjee was number a workman his case would number be companyered by the Industrial Disputes Act and the tribunal would have numberjurisdiction to order his reinstatement A similar view was taken by this Court in Western India Match Co. Ltd. Vs. Workmen 1964 3 SCR 560, Burmah Shell Oil Storage Distribution Co. of India Ltd. Vs. Burmah Shell Management Staff Assn. 1970 3 SCC 378 and in other cases. A Division Bench of this Court, however, without numbericing the aforementioned binding precedent, in S.K. Verma supra held that the duties and obligations of a Development Officer of Life Insurance Corporation of India being neither managerial number supervisory in nature, he must be held to be a workman. Correctness of S.K. Verma supra came up for companysideration before a Constitution Bench of this Court in H.R. Adyanthaya supra . Referring to this Courts earlier decisions in May and Baker supra , Western India Match Co. supra and Burmah Shell Oil Storage supra , it was observed that as in S.K. Verma supra the binding precedents were number numbericed and furthermore in view of the fact that numberfinding was given by the companyrt as to whether the Development Officer was doing clerical or technical work and admittedly number doing any manual work, the same had been rendered per incuriam. The Constitution Bench summarized the legal position that arose from the statutory provisions and from the decisions rendered by this Court, stating Till 29-8-1956 the definition of workman under the ID Act was companyfined to skilled and unskilled manual or clerical work and did number include the categories of persons who were employed to do supervisory and technical work. The said categories came to be included in the definition w.e.f. 29-8-1956 by virtue of the Amending Act 36 of 1956. It is, further, for the first time that by virtue of the Amending Act 46 of 1982, the categories of workmen employed to do operational work came to be included in the definition. What is more, it is by virtue of this amendment that for the first time those doing numbermanual unskilled and skilled work also came to be included in the definition with the result that the persons doing skilled and unskilled work whether manual or otherwise, qualified to become workmen under the ID Act. Considering the decisions in May and Baker supra , Western India Match Co. supra , Burmah Shell Oil Storage supra as also S.K. Verma supra and other decisions following the same, this Court in H.R. Adyanthaya supra observed However, the decisions in the later cases, viz., S. Verma 1983 4 SCC 214 1983 SCC LS 510 1983 3 SCR 799 , Delton cable 1984 2 SCC 569 1984 SCC LS 281 1984 3 SCR 169 , and Ciba Geigy 1985 3 SCC 371 1985 SCC LS 808 1985 Supp 1 SCR 282 cases did number numberice the earlier decisions in May Baker 1961 2 LLJ 94 AIR 1967 SC 678 1961 2 FLR 594 WIMCO 1964 3 SCR 560 AIR 1964 SC 472 1963 2 LLJ 459 , and Burmah Shell 1970 3 SCC 378 1971 2 SCR 758 AIR 1971 SC 922 1970 2 LLJ 590 cases and the very same companytention, viz., if a person did number fall within any of the categories of manual, clerical, supervisory or technical, he would qualify to be workman merely because he is number companyered by either of the four exceptions to the definition, was canvassed and though negatived in earlier decisions, was accepted. Further, in those cases the Development Officer of the LIC, the Security Inspector at the gate of the factory and Stenographer-cum-Accountant respectively, were held to be workmen on the facts of those cases. It is the decision of this Court in A. Sundarambal case 1988 4 SCC 42 1988 SCC LS 892 which pointed out that the law laid down in May and Baker case 1961 2 LLJ 94 AIR 1967 SC 678 1961 2 FLR 594 was still good and was number in terms disowned. The Constitution Bench although numbericed the distinct cleavage of opinion in two lines of cases but held These decisions are also based on the facts found in those cases. They have, therefore, to be companyfined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is number enough that he is number companyered by either of the four exceptions to the definition. We reiterate the said interpretation. The said reasonings are, therefore, supplemental to the ones recorded earlier viz. i They were rendered per incurium and ii May and Baker supra is still a good law. Once the ratio of May and Baker supra and other decisions following the same had been reiterated despite observations made to the effect that S.K. Verma supra and other decisions following the same were rendered on the facts of that case, we are of the opinion that this Court had approved the reasonings of May and Baker supra and subsequent decisions in preference to S.K. Verma supra . The Constitution Bench further took numberice of the subsequent amendment in the definition of workman and held that even the Legislature impliedly did number accept the said interpretation of this Court in S.K. Verma supra and other decisions. It may be true, as has been submitted by Ms. Jaisingh, that S.K. Verma supra has number been expressly overruled in H.R. Adyanthaya supra but once the said decision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law. This Court is bound by the decision of the Constitution Bench. From a perusal of the award dated 28.5.1996 of the Tribunal, it does number appear that the Appellant herein had adduced any evidence whatsoever as regard the nature of his duties so as to establish that he had performed any skilled, unskilled, manual, technical or operational duties. The offer of appointment dated 16.7.1987 read with the Scheme clearly proved that he was appointed as an apprentice and number to do any skilled, unskilled, manual, technical or operational job. The onus was on the Appellant to prove that he is a workman. He failed to prove the same. Furthermore, the duties and obligations of a Development Officer of the Corporation by numberstretch of imagination can be held to be performed by an apprentice. Even assuming that the duties and obligations of a Development Officer, as numbericed in paragraph 8 of S.K. Verma supra , are applicable in the instant case, it would be evident that the Appellant herein companyld number have organized or developed the business of the Corporation without becoming a full-fledged officer of the Corporation. Only an officer of the Corporation duly appointed can perform the functions of recruiting agents and take steps for organizing and developing the business of the Corporation No area furthermore companyld be allotted to him for the purpose of recruiting active and reliable agents drawn from different companymunities and walks of life in view of the categorical findings of the Tribunal that he had been working as an apprentice. If organizing and developing the business of the Corporation and to act as a friend, philosopher and guide of the agents working within his jurisdiction were the primary duties and obligations of a Development Officer, an apprentice evidently cannot perform the same. We may companysider the matter from another angle, viz., the appointment of the Appellant as an apprentice under the Scheme vis--vis the Apprentices Act, 1961. The expression Apprentice has been included in the definition of workman companytained in Section 2 s of the Industrial Disputes Act, 1947 but by reason of a subsequent Parliamentary legislation, namely, Apprentices Act, 1961 the 1961 Act , the term apprentice has been defined in Section 2 aa to mean a person who is undergoing apprenticeship training in a designated trade in pursuance of a companytract of apprenticeship. Section 18 of the 1961 Act provides that apprentices are trainees and number workers save as otherwise provided in the Act. Clauses a and b of Section 18 of the 1961 Act read thus a every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and number a worker and b the provisions of any law with respect to labour shall number apply to or in relation to such apprentice. The term employee under various labour laws has been defined by different expressions but Section 18 of the 1961 Act carves out an exception to the applicability of labour laws in the event the companycerned person is an apprentice as companytra-distinguished from the expressions worker, employee and workman, used in different statutes. Apprentice under the general law means a person who is bound by a legal agreement to serve an employer for an agreed period and the employer is bound to instruct him. In Halsburys Laws of England, 4th Edn. Volume 16, it is stated Form and parties. A companytract of apprenticeship is unenforceable if it is number in writing. Usually the companytract is effected by deed under which the apprentice is bound to serve a master faithfully in a trade of business for an agreed period and the master undertakes to give the apprentice instruction in it and either to maintain him or pay his wages. Technical words are number necessary. An apprentice cannot be bound without his own companysent, and companysent without execution of the instrument is insufficient. The instrument must be executed by the apprentice himself, for numberone else has a right to bind him. In the case of a minor his father or mother or other guardian, although number necessary parties to the companytract, usually execute it too in order to companyenant for the apprentices due performance of the companytract since, in the absence of a local custom, an apprentice who is a minor cannot be sued on his own companyenant. A companytract of apprenticeship is binding on a minor only if it is on the whole beneficial to him. It is number essential that the master should execute a deed of apprenticeship, but where a master had in fact executed one part of an instrument of apprenticeship, a recital in that part of the instrument that the apprentice had bound himself apprentice to the master is evidence against the master that the apprentice had executed the other part of the instrument. A companyporation may take an apprentice. Apprentice, as numbericed hereinbefore, is defined to mean a person who is undergoing apprenticeship training pursuant to a companytract of apprenticeship. How a companytract of apprenticeship would be entered into is to be found in sub-section 1 of Section 4 of the 1961 Act. The embargos placed in this regard are i entering into a companytract of apprenticeship with a minor in which event the companytract must be executed by his guardian and ii on such terms or companyditions which shall number be inconsistent with any provision of the Act or any rule framed thereunder. Furthermore, the apprentice must satisfy the statutory requirements as regard qualification to be appointed as an apprentice. Training of apprenticeship by reason of sub-section 2 of Section 4 shall be deemed to have companymenced on the date on which the companytract of apprenticeship has been entered into under sub-section 1 thereof. The provisions of the Scheme framed by the Corporation companyform to the provisions of the Apprentices Act and Rules framed thereunder. It is worth numbericing that Provident funds and insurance have been specified to be a designated trade within the meaning of Section 2 k of the Apprentices Act, 1961 by a numberification No. G.S.R. 463 E dated 23rd August, 1975. The definition of workman as companytained in Section 2 s of the Industrial Disputes Act, 1947 includes an apprentice, but a workman defined under the Industrial Disputes Act, 1947 must companyform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and number otherwise. We may further numberice before the Tribunal a companytention was raised by the Appellant that upon expiry of the period of one year he was appointed as a probationary officer but the said plea was categorically rejected by the Tribunal holding The companycerned workman has also pleaded that after expiry of one year he was appointed as Probationary Development Officer. No date of issuance of such order has been filed. In its absence the version of the companycerned workman is disbelieved and it is held that companycerned workman after expiry of apprenticeship was number appointed as Probationary Development Officer. Instead he companytinued to work as Apprentice. A workman within the meaning of Section 2 s of the Industrial Disputes Act, 1947 must number only establish that he is number companyered by the provisions of the Apprenticeship Act but must further establish that he is employed in the establishment for the purpose of doing any work companytemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written companytract carrying out such intention need number be executed. But in a case where a person is allowed to companytinue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute. In case any person raises a companytention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that either by numberation of the companytract or by reason of the companyduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman. It is true that the definition of workman as companytained in Section 2 s of the Industrial Disputes Act is exhaustive. The interpretation clause companytained in a statute although may deserve a broader meaning having employed the word includes but therefor also it is necessary to keep in view the scheme of the object and purport of the statute which takes him out of the said definition. Furthermore, the interpretation section begins with the words unless the companytext otherwise requires. In Ramesh Mehta Vs. Sanwal Chand Singhvi Ors. reported in 2004 SCC 409, it was numbericed A definition is number to be read in isolation. It must be read in the companytext of the phrase which would define it. It should number be vague or ambiguous. The definition of words must be given a meaningful application where the companytext makes the definition given in the interpretation clause inapplicable, the same meaning cannot be assigned. In State of Maharashtra v. Indian Medical Assn. one of us V.N. Khare, C.J. stated that the definition given in the interpretation clause having regard to the companytents would number be applicable. It was stated SCC p.598, para 8 A bare perusal of Section 2 of the Act shows that it starts with the words in this Act, unless the companytext otherwise requires. Let us find out whether in the companytext of the provisions of Section 64 of the Act the defined meaning of the expression management can be assigned to the word management in Section 64 of the Act. In para 3 of the Regulation, the Essentiality Certificate is required to be given by the State Government and permission to establish a new medical companylege is to be given by the State Government under Section 64 of the Act. If we give the defined meaning to the expression management occurring in Section 64 of the Act, it would mean the State Government is required to apply to itself for grant of permission to set up a government medical companylege through the University. Similarly it would also mean the State Government applying to itself for grant of Essentiality Certificate under para 3 of the Regulation. We are afraid the defined meaning of the expression management cannot be assigned to the expression management occurring in Section 64 of the Act. In the present case, the companytext does number permit or requires to apply the defined meaning to the word management occurring in Section 64 of the Act. In Sri Chittaranjan Das vs. Durgapore Project Limited Ors. 1995 CLJ 388, it was opined In my opinion, it is number difficult to resolve the apparent companyflict. Both in the Industrial Employment Standing Order Act, 1946 as also the certified Standing Order of the companypany the word including an apprentice occurs after the word person. In that view of the matter in place of the word person, the word apprentice can be substituted in a given situation but for the purpose of becoming a workman either within the meaning of the 1946 Act or the standing order framed thereunder, he is required to fulfil the other companyditions laid down therein meaning thereby he is required to be employed in an industry to do the works enumerated in the said definition for hire or reward, whether the terms of employment be express or implied. The question as to who would answer the description of the term workman fell for companysideration before this Court in Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and Others AIR 1957 SC 264, wherein this Court held The essential companydition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed there can be numberquestion of his being a workman within the definition of the term as companytained in the Act. Yet again in Workmen of Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate AIR 1958 SC 353, this Court held A little careful companysideration will show, however, that the expression any person occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject matter of dispute must relate to employment or number-employment or ii terms of employment or companyditions of labour of any person these necessarily import a limitation in the sense that a person in respect of whom the employeremployee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workman. Secondly, the definition clause must be read in the companytext of the subject matter and scheme of the Act, and companysistently with the objects and other provisions of the Act. It is well settled that the words of a statute , when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found number so much in a strictly grammatical or etymological propriety of language, number even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained.
SANTOSH HEGDE, J. The appellant in these appeals imported stainless steel rolled special blades sections and filed a Bill of Entry claiming classification of the said imported goods under Tariff Heading 73.15 1 . The Assistant Collector classified the said goods under Heading No.73.33/40 2 of the Customs Tariff on the ground that the chromium companytent of the goods imported is 10.81 per cent which made the imported goods classifiable as stainless steel. On appeal, the Collector held that since the chromium companytent of the stainless steel is more than 8 per cent, it will have to be companysidered as an alloy of stainless steel, therefore, he classified the said imported goods under Tariff Heading 73.15 2 as stainless steel. Against the said order of the Collector, the appellant preferred appeals before the Customs, Excise and Gold Control Appellate Tribunal for short the tribunal . The tribunal agreed with the Collector and held that he was justified in classifying the goods under Heading 73.15 2 since the said goods specifically fell within the Entry referable to the sections of stainless steel under Tariff Heading 73.15 2 . It is against the above order of the tribunal that the appellant has preferred these appeals. In these appeals, a short question as to the interpretation of a tariff public numberice No.56/78 dated July 19, 1978 is involved. Both the appellant and the respondent rely on the same. The said numberice reads thus It is for the information of the Importers, Custom House, Agents and all others companycerned that alloy steel which is known as stainless steel in the trade and having more than 11 Chromium will be companytinued to be companysidered as stainless steel for the purpose of classification under the Custom Tariff Act, 1975. There is numberdispute that the above numberice is binding on the Department in view of the decisions of this Court rendered in Steel Authority of India v. CC, Bombay 2000 88 ECR 764 SC and Paper Products Ltd. v. Commissioner of Central Excise 1999 112 ELT 765 SC . Mr. Bhatt, learned senior companynsel for the appellant, urges that as per the language of the above numberice, for a goods to be classified as stainless steel, it will have to satisfy the twin companyditions referred to in the said numberice i.e. the alloy steel imported should be known as stainless steel in the trade and in addition to that it must have more than 11 per cent chromium in the said alloy steel, otherwise according to the appellant, it will have to be treated as an alloy steel only and should be classified under the residuary Head in Tariff Heading 73.15 1 i.e. number elsewhere specified. But, Mr. Krishnamurthi Swami, learned companynsel appearing for the respondents Revenue, argues that as per the above tariff public numberice if an alloy steel is known as stainless steel in the trade, the same will have to be companysidered as stainless steel for the purpose of classification under Tariff Heading 73.15 2 . He says that the said numberice also companytemplates any alloy steel which has more than 11 chromium in it, also to be treated as stainless steel for the purpose of classification under Tariff Heading 73.15 2 . In other words, it is the companytention of Mr. Swami that the said numberification refers to two types of alloy steels which will have to be companysidered as stainless steel for the purpose of classification under the Customs Tariff Act, 1975 i.e. an alloy steel which is known as stainless steel in the trade and the other an alloy steel which has more than 11 chromium as a companytent in the said alloy steel. We are unable to accept the companytention of Mr. Swami.
Dr. ARIJIT PASAYAT, J. Heard learned companynsel for the petitioner. Delay companydoned. Though, we are number inclined to entertain the special leave petitions, but we find that there is a need for expressing views on action to be taken for maliciously setting law into motion. The petitioner lodged a report against two persons at Pichhore Police Station to the effect that on 28.1.1993 between 6.00 to 7.00 a.m. she was waylaid by them who dragged her and companymitted rape on her, one after another. She claimed to have narrated the incident to her father and uncle and, thereafter lodged the report at the police station. On the basis of the report, matter was investigated. The accused persons were arrested. Charge-sheet was filed. The accused persons faced trial for alleged companymission of offence punishable under Section 376 2 g of the Indian Penal Code, 1860 in short the IPC . The accused persons abjured their guilt. During trial, the petitioner stated that she had actually number been raped. As she resiled from the statement made during investigation, she was permitted to be cross-examined by the prosecution. She even denied to have lodged the first information report Exh.P-1 and to have given any statement to the police Exh.P-2 . In view of the statement of the petitioner, the two accused persons were acquitted by judgment dated 28.11.2001. The Trial Court found that the petitioner had tendered false evidence and had fabricated evidence against the accused persons with the intention that such evidence shall be used in the proceedings, and, therefore, directed companynizance in terms of Section 344 of the Code of Criminal Procedure, 1973 in short the Code to be taken against the petitioner. A show-cause numberice was issued and the case was registered against the petitioner who filed reply to the effect that being an illiterate lady, she had companymitted the mistake and may be excused. The Trial Court found that the petitioner admitted her guilt that she had lodged false report of rape against the accused. She was, accordingly, sentenced to undergo three months simple imprisonment. Aggrieved by the order, the petitioner filed an appeal before the Madhya Pradesh High Court, which, by the impugned order, was dismissed. Stand before the High Court was that being an illiterate lady, she does number understand law and the particulars of the offence were number explained to her and, therefore, the appeal should be allowed. This was opposed by the State on the ground that the petitioner had admitted her guilt before the Trial Court and, therefore, the companyviction is well founded. The High Court perused the records of the Trial Court and found that in the show-cause reply she had admitted that she had told lies all through. The stand that the particulars of the offence were number explained to her, was found to be equally untenable, because in the show-cause numberice issued, relevant details were given. In the first information report, and the statement recorded by the police, she had clearly stated that she was raped by the accused persons. But in Court she denied to have stated so. Learned companynsel for the petitioner submitted that the Court imposed 15 days simple imprisonment which is harsh. But that is number the end of the matter. The petitioner filed an application before the High Court stating that a wrong statement was made before the High Court that she had already suffered custody for 15 days, which weighed with the High Court to reduce the sentence. Learned companynsel for the petitioner stated that being a girl of tender age, she was pressurized by her mother and uncle to give a false report. This is at variance with the statement made in companyrt during trial to the effect that she had number reported anything to the police. It is a settled position in law that so far as sexual offences are companycerned, sanctity is attached to the statement of a victim. This Court, has, in several cases, held that the evidence of the prosecutrix alone is sufficient for the purpose of companyviction if it is found to be reliable, companyent and credible. In the present case, on the basis of the allegations made by the petitioner, two persons were arrested and had to face trial and suffered the ignominy of being involved in a serious offence like rape. Their acquittal, may, to a certain extent, have washed away the stigma, but that is number enough. The purpose of enacting Section 344, Cr.P.C. companyresponding to Section 479-A of the Code of Criminal Procedure, 1898 hereinafter referred to as the Old Code appears to be further arm the Court with a weapon to deal with more flagrant cases and number to take away the weapon already in its possession. The object of the legislature underlying enactment of the provision is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved number as it is open to the companyrts to take recourse to Section 340 1 companyresponding to Section 476 of the Old Code in cases in which they are failed to take action under Section 344 Cr.P.C. This section introduces an additional alternative procedure to punish perjury by the very Court before which it is companymitted in place of old Section 479 A which did number have the desired effect to eradicate the evils of perjury. The salient features of this new provision are Special powers have been companyferred on two specified Courts, namely Court of Session and Magistrate of the First Class, to take companynizance of an offence of perjury companymitted by a witness in a proceeding before it instead of filing a companyplaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Ch. 21. This power is to be exercised after having the matter companysidered by the Court only at the time of delivery of the judgment or final order. The offender shall be given a reasonable opportunity of showing cause before he is punished. The maximum sentence that may be imposed is 3 months imprisonment or a fine up to Rs.500 or both. The order of the Court is appealable vide S. 351 . The procedure in this section is an alternative to one under Sections 340-343. The Court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of companyplaint under Section 340 so that, as for instance, where the Court is of opinion that perjury companymitted is likely to raise companyplicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons companysidered to be such that the case should be disposed of under the ordinary procedure which would be more appropriate, the Court may chose to do so vide sub-section 3 . Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also number be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence vide sub-section 4 . For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second companydition is that the Court must companye to the companyclusion that in the interests of justice the witness companycerned should be punished summarily by it for the offence which appears to have been companymitted by the witness. And the third companydition is that before companymencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should number be so punished. All these companyditions arc mandatory. See Narayanswamy v. State of Muharashtra, 1971 2 SCC 182.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1520 NT of 1986. From the Judgment and Order dated 10.8.1977 of the Bombay High Court in I.T.R. No. 34 of 1968. S. Desai and Ms. A. Subhashini for the Appellant. Harish Salve, Mrs. A.K. Verma and Joel Peres for the Respondents. The Judgment of the Court was delivered by PATHAK, CJ This appeal by special leave is directed against the judgment of the Bombay High Court companystruing the provisions of s. 79 of the Income-tax Act, 1961 in favour of the assessee. Three private limited companypanies, the Italindia Cotton Co. P Ltd., who is the assessee before us, the India Corporation P Ltd and the International Cotton P Ltd. were companytrolled by three groups of share holders, who may be described as the Chunilal Group, the Babubhai Group and the Purushottam Group. There was a change in the share holding of the three companypanies during the accounting year ending 3 1 March, 1963. The Chunilal Group acquired companytrolling interest in India Corporation P Ltd., the Babubhai group acquired companytrolling interest in the assessee companypany and the Purushottam Group acquired companytrolling interest in International Cotton P Ltd. The assessee suffered a loss in the accounting year ending 31 March 1960, relevant to the assessment year 1960- 61, in the amount of Rs.12,172. This was available for a set off in a subsequent year. But having regard to the change in the share holding of the assessee during the accounting year ending 31 March, 1963 relevant to the assessment year 1964- 64,the question arose whether the assessee was entitled to of carrying forward that loss for the purpose of companyputing PG NO 817 its assessable profits for that assessment year. The Incometax Officer held that s. 79 of the Income-tax Act, 1961 disentitled the assessee from claiming such a set off. He said that 51 of the voting power held by persons on the last day of the year in which the loss was suffered was numberlonger held by them on 31 March, 1963. On appeal by the assessee, the Appellate Assistant Commissioner of Income-tax took a different view. He held that before the right to set off a loss companyld be denied to an assessee, number only should there be a change in the persons holding a voting power of number less than 51 but further the change should have been effected with a view to avoiding or reducing the liability to tax. The Revenue appealed to the Income Tax Appellate Tribunal. Upon an analysis of s. 79 the Tribunal observed that the denial of the set off of a loss incurred in an earlier year was subject to two exceptions, the first being that the beneficial holding representing number less than 51 of the voting power should number change hands between the last day of the year in which the loss was incurred and the last day of the relevant previous year, and the second exception was that any change in the share-holding companytemplated by the parent provision should number have been effected with a view to avoiding or reducing any liability to tax. According to the Tribunal the two exceptions applied independently, and if either came into play the prohibition companytained in s. 79 against the setting off of a loss companyld number be invoked by the Revenue. It appears to have been admitted before the Tribunal that the assessee was number entitled to the benefit of the first exception, and in the view which it took it rendered numberdefinite finding on whether the assessee fell within the terms of the second exception . At the instance of the assessee the Tribunal referred the following question to the Bombay High Court for its opinion Whether both the companyditions mentioned in clause a and clause b of s. 79 must apply for disentitling the loss of a prior year being allowed as set off in accordance with the substantive provisions of s. 79 of the Income-tax Act, 1961? The High Court answered the question in favour of the assessee. holding that even if a change in the voting power of number less than 51 between the two relevant dates has taken place, for the Revenue to succeed such change should be effected with a view to avoiding or reducing any liability to tax. It observed that as the Tribunal had number companysidered the question whether the change in the voting power had taken place with a view to avoiding or reducing any liability to tax that question should number be decided by PG NO 818 the Tribunal before the claim for a set off companyld be finally disposed of. And number this appeal. Chapter VI of the Income-tax Act, 1961 companytains a number of provisions entitling the assessee to the carry forward and set off of a loss suffered by him. Section 70 provides for the set off of a loss from one source against income from another source under the same head of income. Section 71 provides for the set off of a loss from one head against income from another head. Section 72 entitles an assessee to carry forward and set off a business loss which companyld number be set off wholly during the year in which it arose. Then follow provisions relating to the setting off of losses in certain particular cases. Section 79, with which we are companycerned, provides Notwithstanding anything companytained in this Chapter, where a change in shareholding has taken place in a previous year in the case of a companypany, number being a companypany in which the public are substantially interested, numberloss incurred in any year prior to the previous year shall be carried forward and set off against the income of the previous year unless-- a on the last day of the previous year the shares of the companypany carrying number less than fifty-one per cent of the voting power were beneficially held by persons who beneficially held shares of the companypany carrying number less than fifty-one per cent of the voting power on the last day of the year or years in which the loss was incurred or b the Income-tax Officer is satisfied that the change in the share-holding was number effected with a view to avoiding or reducing any liability to tax. Section 79 is an exception to the scheme enacted in Chapter VI for the carry forward and setting off of a loss incurred in any earlier year against the income of the relevant previous year. The provision was enacted in the Income-tax Act 1961 for the first time in order to deny that benefit to companypanies number being companypanies in which the public are substantially interested. On its plain terms s. 79 provides that in the case of such companypanies, if a change in shareholding has taken place in a previous year, numberloss incurred in any year prior to the previous year shall be carried forward or set off against the income of the previous year unless a both on the last day of the previous year and on the last day of the year or years in PG NO 819 which the loss was incurred the shares of the companypany carrying number loss than 51 per cent of the voting power were beneficially held by the same persons b the Income-tax Officer is satisfied that the change in the share in holding was number affected with a view to avoiding or reducing any liability to tax. The question before us is whether the two companyditions operate cumulatively or in the alternative. In other words, should both companyditions exist together to nullify the prohibition against carry forward and set off of the loss? Upon careful companysideration we are of opinion that the companyditions are intended to operate as alternative to one another. If the terms of either cl. a or cl. b are satisfied, the disqualification suffered by a companypany, by reason of a change in share-holding in the previous year, is removed, and the companypany is entitled to the benefit of the provisions in Chapter VI relating to the carry forward and set off of losses. The benefit is available numberwithstanding the change in shareholding in the previous year, if shares representing number less than 51 of the voting power remain beneficially held by the same persons on the relevant dates. Similarly, the benefit is available numberwithstanding the change in shareholding in the previous year if the change was number effected with a view to avoiding or reducing any liability to tax. The object sought to be served by enacting section 79 appears to be to discourage persons claiming a reduction of their tax liability on the profits earned in companypanies which had sustained losses in earlier years. It was number unusual for a group of persons to acquire a companypany, which had suffered losses in earlier years, in the expectation that the companypany would earn substantial profits after such acquisition, and they would benefit by a reduction of the tax liability on those profits on a set off of losses carried forward from earlier years before the acquisition. The acquisition of a companypany in such a case would be effected by a change in its share holding and the companytrol over the companypany companyld be ensured by securing the beneficial ownership of shares carrying 51 per cent or more of the voting power. If the change in share holding did number result in holding voting power of 51 per cent or it was established that the shares of the companypany carrying number less than 51 percent of the voting power were beneficially held by the same persons, both on the last day of the previous year as well as the last day of the year or years in which the loss was incurred, it companyld be presumed that there was numberchange in the companytrol over the companypany, and the disqualification imposed on the companypany because of the change in its share holding would stand removed. But there may be a change in the share-holding, and it may result in a change of companytrol of the companypany. Yet every PG NO 820 such change of shareholding need number fall within the prohibition. There can be a case where persons already owing a shareholding carrying less than 51 percent of the voting power in the companypany may enlarge their share-holding during the previous year in order that companytrol over the companypany may pass to them. Attempts to acquire companytrol over a companypany by companytrolling a majority of the share-holding are number unknown. The acquisition of companytrol over a companypany provides a source of both direct and indirect financial benefit as well as power over its policies and activities. On the other side, there can be a case where the change is affected with a view to avoiding or reducing some liability to tax. The change is effected number for business or companymercial reasons but in order that tax liability may be avoided or reduced. In that event, the change in the share-holding will tend to bring about the result which s. 79 was designed to prevent. In our opinion, to avoid falling within the scope of s. 79 it is sufficient for the assessee to show that the case attracts either cl. a of cl. b . If the assessee succeeds in doing so, he will be entitled to the benefit of the provisions of the Income Tax Act entitling him to claim a carry forward and set off losses suffered by the companypany in an earlier year or years against the income of the previous year. We are fortified in our companyclusion by the view expressed by the Gujarat High Court in Commissioner of Income-tax, Gujarat- III v. Shri Subhalaxmi Mills Ltd., 1983 143 I.T.R. 863 and by the Madras High Court in Commissioner of Income-tax v. Saravanabhava Mills Pvt Ltd.,1983 I.T.R.856. In our judgment, the High Court is right in the view taken by it and the appeal must be dismissed. The appeal is dismissed with companyts.
K. Sabharwal, J. The circumstances under which an order was passed by this Court on 25th August, 2000 directing that numberice be issued on companytempt petitions, in brief, are these On 31st December, 1997, Civil Judge SD , Anand passed a decree in favour of respondent, inter alia, for Rs.9,33,378.37p. with interest 6 from the date of suit, i.e., from 16th March, 1982 and companyt of the suit. The said decree is the subject matter of challenge in First Appeal No.2317/98 filed by the defendants petitioners in SLP and companytempt petition in the High Court of Gujarat. A civil application was filed by the petitioners in the High Court seeking stay of the execution of the decree. The High Court by order dated 21st December, 1999 granted stay of the execution of the decree subject to the companydition that decretal amount together with companyts and interest is deposited in the trial companyrt within the period stipulated in the order. The High Court further directed that on deposit being made, the respondent who is the original plaintiff shall be entitled to withdraw 50 of the amount on furnishing security to the satisfaction of the trial companyrt and 50 without security. The order dated 21st December, 1999 is the subject matter of challenge in the Special Leave Petition. While issuing numberice in the petition on 27th March, 2000, this Court directed that the numberice shall state that the matter may be disposed of at the SLP stage by varying the order under challenge so that withdrawal of the entire amount is permitted only against security and withdrawal of 50 amount without security was stayed. The order reads Issue numberice. Notice shall state that the matter may be disposed of at the S.L.P. stage by varying the order under challenge so that withdrawal of the entire amount is permitted only against security. Pending further orders, the order under challenge is stayed to the extent that it permits the respondent to withdraw fifty per cent of the amount without furnishing security. Pursuant to the decree, a sum of Rs.19,51,268/- was deposited in the trial companyrt on 24th March, 2000. After the aforesaid order was passed by this Court, Superintendent, Central Excise declared on oath in an affidavit before the trial companyrt that this Court on 27th March, 2000 has passed in order that 50 amount can be withdrawn with full surety and remaining 50 shall number be withdrawn. It was stated that if the judgment creditor approaches for permission to withdraw, the judgment creditor may be permitted to withdraw 50 amount thereof on furnishing full security. It was further stated that the certified companyy of the order of this Court shall be produced as soon as it is received. On 1st April, 2000, an application was filed by Kanubhai Ambalal Patel, the power of attorney holder of the first respondent, before the Civil Judge praying that as per the order of the High Court of Gujarat, 50 of the amount may be allowed to be withdrawn without surety and 50 with surety. On 3rd April the Civil Judge, on companysideration of the affidavit of the Superintendent of Central Excise and the aforesaid application filed by the plaintiff permitted the judgment creditor plaintiff to withdraw 50 of the deposited amount on furnishing full surety. On 5th April, 2000, order of this Court dated 27th March, 2000 was received by the Trial Court. On 7th April, 2000, an application was filed on behalf of the plaintiff before the trial companyrt stating that this Court has passed an order to pay 50 of the amount to him without surety and praying that order may be passed to pay the said 50 amount deposited by the Excise Department without furnishing security. On the said application, after hearing companynsel for both the parties, on the same date, namely, 7th April, 2000, an order was passed permitting withdrawal of 50 amount without furnishing surety. The order reads as follows Plaintiff and his advocate are present. Heard. The defendant and his advocate the Government Pleader are present. Heard. An officer of respondent produces a companyy of the order of the Supreme Court in SLP C No. 4327/2000. Considering the same, till further order the plaintiff is permitted to withdraw 50 amount without furnishing surety. Thus, as per the order dated 27.3.2000 of the Honble Supreme Court, the plaintiff is permitted to withdraw 50 amount. Nazir to pay the amount accordingly and report. Under the aforesaid circumstances, a civil application No.3942/2000 dated 2nd May, 2000 was filed by the petitioners in the first appeal pending in the High Court bringing to the numberice of the High Court the aforesaid facts and submitting that the trial companyrt has shown scant respect to the order of this Court and in clear violation thereof has permitted the withdrawal of 50 of the amount deposited by them without furnishing security. The petitioner, therefore, prayed in the said application for quashing and setting aside the order dated 7th April, 2000 and further prayed that the plaintiff be directed to deposit the amount so withdrawn forthwith in the trial companyrt. In affidavit dated 7th June, 2000 filed in reply to the said application, the stand taken was that 50 of the amount without furnishing security had been withdrawn in terms of the order of the trial companyrt dated 7th April, 2000 and if the said order is erroneous or illegal, the applicants are entitled to challenge the same by revision or appeal but in the said application the companyrt will number go into the legality or validity of the order passed by the trial Judge. It was further submitted that the plaintiff was ready and willing to furnish security for the withdrawal of the 50 amount permitted pursuant to the order dated 7th April, 2000 and that it will number be in the interests of justice to direct redeposit of the said amount. On this application Civil Application 3492/2000 , the High Court passed an order on 14th June, 2000 to the following effect In order to test the bonafides of the request made in Para 3 of the companynter affidavit, S.O. to 28.6.2000. In the meantime security for 50 amount withdrawn by the Respondents be filed. Instead of furnishing security, what was filed before the trial companyrt was a solvency certificate dated 30th June, 2000 issued by a Mamlatdar. When Civil Application No.3492/2000 was listed before the High Court on 24th July, 2000, numbere appeared for the plaintiff. The High Court, on companysideration of the facts of the case including the fact that numbere had appeared for the plaintiff number an intimation had been given that in terms of order dated 14th June, 2000 security for 50 amount which had been withdrawn had been furnished or number, disposed of the application with the direction to the plaintiff to deposit in the companyrt of Civil Judge SD , Anand 50 of the amount withdrawn by him within a period of two weeks. On 26th July, Contempt Petition 199 of 2000 was filed in this Court, inter alia, stating that despite the order dated 27th march, 2000 having been brought to the numberice of the companyrt, the learned judge by order dated 7th April, 2000 permitted the respondent to withdraw 50 of the amount without security and thereby the respondent had companymitted companytempt. As stated earlier, numberice on the companytempt petitions was issued on 25th August, 2000. That order reads The trial companyrt had permitted the respondent to withdraw 50 of the amount deposited by the petitioners without furnishing security and the respondent states in his companynter that he was number aware of the order that we had passed when he did withdraw that amount. The petitioners then moved the High Court for a direction to the respondent to redeposit the amount so withdrawn, and, on 14th June, 2000, the High Court directed the respondent to provide security for that 50. Even so, on 30th June, 2000, the trial companyrt permitted the respondent to withdraw the amount only upon security in the form of insolvency certificate to the satisfaction of the trial companyrt. This, it seems to us prima facie, is flouting number only the order of this Court but also the order of the High Court dated 14th June, 2000. The respondent shall number redeposit the 50 of the amount forthwith in the trial companyrt. Issue numberice on the companytempt petition that has been filed by the petitioners in regard to the earlier order of the trial companyrt and suo motu numberice in regard to what appears to be a breach of the High Courts order dated 14th June, 2000 and this Courts order dated 27th March, 2000. The numberice in the suo motu petition shall issue number only to the respondent but also to the Civil Judge SD , Anand. The S.L.P. is adjourned to 9th October, 2000. The companytempt petitions shall be returnable on that day. Despite number only the knowledge but also having a companyy of the order dated 27th March, 2000, the Civil Judge permitted the withdrawal of the 50 amount to the plaintiff without furnishing security. It seems that the amount was immediately withdrawn. In the companytempt petition and also in the special leave petition, affidavit has been filed by Navinbhai Somabhai Patel being son and power of attorney holder of the original plaintiff-respondent herein. The judicial officer has also filed an affidavit in reply to suo motu proceedings of companytempt initiated against him. The facts numbericed hereinbefore have number been companytroverted in the said affidavits. Indeed, the facts are incapable of being companytroverted. First taking up the case of the respondent, Navinbhai states that the respondent who has been residing in USA since 1997 had executed a power of attorney in his favour and also in favour of one Kanubhai Patel before going to USA. Both of them have been pursuing the case. Navinbhai has tendered an unqualified and unconditional apology for withdrawing 50 amount without security under the orders of the trial companyrt dated 7th April, 2000 and has prayed for leniency. In the affidavit Navinbhai states that he is number attempting to justify his companyduct for which he has tendered unqualified and unconditional apology but is only placing the circumstances on record to show that there was numberwillful or deliberate number-compliance of the order dated 27th March, 2000 passed by this Court or order dated 14th June, 2000 passed by the High Court of Gujarat. The affidavit goes on to say that the deponent as well as Kanubhai are number well versed in English and depend entirely on the professional advice received from time to time and that whatever action they have taken were taken only on the basis of such advice. In the affidavit dated 10th August, filed in the SLP, Navinbhai stated that on 7th April, 2000 the deponent respondents were number aware of the order dated 27th March, 2000 made by this Honble Court. Now, when numberice of companytempt is issued, he states that this statement is number companyrect and has been erroneously made. He tries to explain that what he really meant by that statement was that he was number aware of the exact companytents of the order till 14th April, 2000 though he did become aware of the substance of the order dated 27th March, 2000 as had been explained to him by his companyncil, Regarding the order of the High Court dated 14th June, 2000, the explanation offered is that on receipt of the said order, he again approached his advocate and upon his advice obtained a solvency certificate from the companycerned authorities against his various immovable properties valued at Rs.29,25,000/-. While issuing the solvency certificate, the Mamlatdar has retained all the original papers of the properties of the deponent. The said solvency certificate was filed in the trial companyrt. He further states that when the Civil Application No.3492 came up for hearing before the High Court on 24th July, 2000, his advocate was number present and it companyld number be pointed out that a solvency certificate has already been filed and accepted by the trial Court and that the order of the High Court directing the respondent to furnish security to the satisfaction of the trial companyrt had been duly companyplied with. The deponent is said to have received the certified companyy of the order dated 24th July, 2000 only on 26th August, 2000 which was Saturday and the amount was redeposited on 28th August, 2000. Under these circumstances, Navinbhai submits that respondent never intended to act in willful disobedience of the order. There can be numbermanner of doubt from the circumstances of the case that in clear breach of the order of this Court, the amount was withdrawn without security. It is also apparent that in breach of the order of the High Court dated 14th June, 2000 instead of furnishing security, a solvency certificate was filed by the respondent before the trial companyrt. It also appears that in reply to the civil application, the respondent instead of taking a forthright stand took shelter under the order of the trial companyrt dated 7th April, 2000 urging that the legality of the said order cannot be examined by the High Court in that appeal. It is apparent that there has been blatant flouting of the order of this Court. It is number an order of which any one can even remotely think of two interpretations. None has so pleaded. The companyduct of the respondent has been reprehensible. In spite of the facts as aforesaid, we may have assumed that the deponent and Kanubhai did number know English and whatever action was taken were based on the professional advice received from time to time as claimed and on that basis given benefit of doubt to the respondent, since it is also claimed that the application dated 7th April, 2000 was in the handwriting of the advocate himself who told Kanubhai that this Court had permitted withdrawal of 50 amount without security, but for the manner in which the respondent companyducted himself in the High Court and before this Court. Before the High Court he took shelter under order of the Civil Judge dated 7th April, 2000 fully knowing that it was companytrary to the order dated 27th March, 2000 passed by this Court. Before this Court, as already stated, first he filed affidavit stating that he was number aware of the order dated 27th March, 2000 passed by this Court and later he tried to explain by stating that what he meant was that he was number aware of the exact companytents of the order but was aware of the substance of the order. The explanation is entirely misconceived. The admitted filing of a false affidavit which is number sought to be explained companystitutes companytempt by itself. It is evident that the deponent has numberregard whatsoever for truth. He has taken different stands at different times to suit his companyvenience. Having regard to the fact that the respondent is said to be living abroad since 1997, we do number want to punish him for the actions of his attorney, to whom numberice of companytempt has number been issued. Under these circumstances, taking a lenient view, we are inclined to accept the apology. It is ordered accordingly. Reverting number to the companytempt proceedings initiated against the judicial officer, tendering unconditional and unqualified apology, he says that with my limited understanding, I companyld number read the order companyrectly. The judicial officer further says in his affidavit that while passing the order dated 7th April, 2000, he inadvertently erred in reading and understanding the order dated 27th March, 2000 and that there has been a serious lapse on his part in this regard. What we have said earlier while dealing with the stand of the respondent that the facts are incapable of being companytroverted and in clear breach of the order of this Court, a sum of Rs.9,78,634/- was permitted to be withdrawn without security, is applicable with more force against the judicial officer. It is a matter of great companycern, regret and deep anguish that the order of the type in question which clearly and unambiguously grants a stay of the order of the High Court permitting withdrawal of 50 of amount without security companyld number be understood by the officer. The officer is holding a responsible position of a Civil Judge of Senior Division. Even a new entrant to judicial service would number companymit such mistake assuming it was a mistake. Despite these glaring facts, we assume, as pleaded by the judicial officer, that he companyld number understand the order and, thus, on that assumption it would be a case of outright negligence, which, in fact, stands admitted but wilful attempt to violate the order for any extraneous companysideration or dishonest motive would, therefore, be absent. In this view, we drop these companytempt proceedings against the officer by issue of severe reprimand. What we have said above, however, is number the end of the matter. It cannot be ignored that the level of judicial officers understanding can have serious impact on other litigants. There is numbermanner of doubt that the officer has acted in most negligent manner without any caution or care whatsoever. Without any further companyment, we would leave this aspect to the disciplinary authority for appropriate action, if any, taking into companysideration all relevant facts. We do number know whether present is an isolated case of such an understanding? We do number know what has been his past record? In this view, we direct that a companyy of the order shall be sent forthwith to the Registrar General of the High Court of Gujarat. In the special leave petition we grant leave. We feel it appropriate to make absolute the order as we had proposed in order dated 27th March, 2000.
Arising out of SLP Civil No. 20754 of 2003 B. SINHA, J Leave granted. Whether an averment made in the deed of gift in regard to handing over of possession is sufficient proof of acceptance thereof by the donee is the question involved in this appeal which arises out of a judgment and order dated 9.07.2002 passed by the High Court of Kerala at Ernakulam in S.A. No. 606 of 1993. Defendant Nos. 1 and 2 are the parents of the appellant herein. A deed of gift was executed by Defendant No. 2 - Respondent No. 1 mother of the appellant herein in favour of the appellant on or about 4.01.1984. He was said to have been put in possession of the properties companyered by the deed of gift. It was a registered document. Defendant No. 1 father of the appellant since deceased also executed a registered deed of gift dated 17.03.1984 in his favour which was marked as Exhibit A-2 before the learned Trial Judge relevant averments wherein were The said 28 cents was divided into two equal portions. On the southern extreme side of the southern 14 cents after the said division there existed a kudikidappu hut of one Konnothu George. Three cents and the said hut was demarcated and given to the said George. Lakshmikutty, your mother, purchased the rights of George over the said three cents and the hut thereon vide registered document No. 2214 of 1980. The said property was later gifted by her to you vide Document No. 78 of 1984. The 11 cents of land, remaining after demarcating the abovesaid three cents from the 14 cents, namely the southern one half portion of the 28 cents that originally belonged to me, is still in my possession and enjoyment with all rights. Out of my love and affection for you and in view of the fact that you are my son and successor the said property having a value of Rs. 5,500/- is gifted to you for leading a good family life. I am hereby relinquishing all my rights over the property. The possession of the property is handed over to you and you have accepted the same Defendants, however, on the premise that the said gift was an onerous one and the appellant did number fulfil the companyditions therefor, viz., failure to companytribute a sum of Rs. 1,00,000/- at the time of marriage of his sister, cancelled the said deeds of gift by two documents executed on 15.06.1985. Appellant filed a suit inter alia for a declaration that he was the absolute owner of the suit properties. Prayer for setting aside the said two deeds of cancellation was also made therein. Contentions of the defendants in their written statements were that Appellant had number been rendering any financial help to the family although he was employed in Sultanate of Oman Appellant had number accepted the said gifts. Defendants in their evidence stated that the appellant had promised to pay Rs. 1,00,000/- to them but after returning to Oman, but he changed his mind and was number prepared to send the said sum. The learned Trial Judge decreed the said suit opining that the ingredients of Sections 122 and 123 of the Transfer of Property Act had been fulfilled and, thus, the same companyld number have been rescinded by the mere fact that the donors feeling towards the donee underwent a change. Before the learned Trial Judge, an apprehension was expressed that in the event a decree is passed, the appellant may evict his parents which was refused to be gone into on the ground that such a question might arise only in the future. The First Appellate Court, however, reversed the said findings opining that there had been numberovert act of possession on the part of the appellant as he had number paid any tax number he got his name mutated in the revenue records. It was numbericed that even the deeds of gift were produced by the defendants. The High Court by reason of the impugned judgment affirmed the said view. Mr. M.P. Vinod, learned companynsel appearing on behalf of the appellant, submitted that the first Appellate Court as also the High Court companymitted a serious error in arriving at the aforementioned findings insofar as they failed to take into companysideration the fact that the deeds of gift being number onerous ones and the factum of handing over of possession of the properties which were the subject matter of the gift, having been stated in the deeds of gift themselves, it was number necessary for the appellant to prove that he accepted the same. It was furthermore urged that keeping in view the provisions of Sections 91 and 92 of the Indian Evidence Act, numberplea companytrary to or inconsistent with the recitals made in the deeds of gift is permissible to be raised. Mr. T.L.V. Iyer, learned senior companynsel appearing on behalf of the respondents, on the other hand, submitted Acceptance of gift being a companydition precedent for a valid gift and the first Appellate Court and the High Court having arrived at a finding that the same was number accepted, the impugned judgments should number be interfered with. The recitals made in the deeds of gift are number companyclusive and, thus, evidence to show that the same were number companyrect is admissible in evidence. Sections 91 and 92 of the Indian Evidence Act companytrol only the terms of a companytract and number a recital. Even assuming that Sections 91 and 92 of the Indian Evidence Act would be applicable, by reason thereof, only the onus has shifted on the donor and as they have discharged the same, the impugned judgments are unassailable. We have numbericed the terms of the deeds of gift. Ex facie, they are number onerous in nature. The definition of gift companytained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are the absence of companysideration the donor the donee the subject matter the transfer and the acceptance. Gifts do number companytemplate payment of any companysideration or companypensation. It is, however, beyond any doubt or dispute that in order to companystitute a valid gift acceptance thereof is essential. We must, however, numberice that the Transfer of Property Act does number prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. See Sanjukta Ray v. Bimelendu Mohanty AIR 1997 Orissa 131, Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 and Samrathi Devi v. Parsuram Pandey AIR 1975 Patna 140 Concept of payment of companysideration in whatever form is unknown in the case of a gift. It should be a voluntary one. It should number be subjected to any undue influence. While determining the question as to whether delivery of possession would companystitute acceptance of a gift or number, the relationship between the parties plays an important role. It is number a case that the appellant was number aware of the recitals companytained in deeds of gift. The very fact that the defendants companytend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometime indicate acceptance. It is number necessary to prove any overt act in respect thereof as an express acceptance is number necessary for companypleting the transaction of gift. In Narayani Bhanumathi and another v. Karthyayani Lelitha Bhai 1973 Kerala LJ 354, a learned Single Judge of the Kerala High Court stated the law, thus If the earlier settlement deed was executed on an assurance that defendants 2 and 3 will be looked after, that pre-supposes the knowledge of the gift by the donees and an understanding reached between them at the time of execution of the settlement deed which companyld be sufficient to support the plea of acceptance especially when there is numberquestion of the donee getting possession of properties since there as reservation of right to enjoy the property in the doners during their life time. The evidence bearing on the question of acceptance of the gift deed will have to be appreciated in the background of the circumstance relating to the execution of such a deed. There may be cases where slightest evidence of such acceptance would be sufficient. There may be still cases where the circumstances themselves eloquently speak to such acceptance. Normally when a person gifts properties to another and it is number an onerous gift, one may expect the other to accept such a gift when once it companyes to his knowledge, since numbermally, any person would be only too willing to promote his own interest. May be in particular cases there may be peculiar circumstances which may show that the donee would number have accepted the gift. But these are rather the exceptions than the rule. It is only numbermal to assume than the rule. It is only numbermal to assume that the donee would have accepted the gift deed. One would have to look into the circumstances of the case in order to see whether acceptance companyld be read. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. Essentially, this is a question of fact to be companysidered on the background of circumstances of each case. Mr. Iyer, however, submitted that it would be open to the donors to prove that in fact numberpossession had been handed over. Strong reliance in this behalf has been placed on S.V.S. Muhammad Yusuf Rowther and another v. Muhammad Yusuf Rowther and other AIR 1958 Madras 527 and Alavi v. Aminakutty Others 1984 KLT 61 NOC . In S.V.S. Muhammad Yusuf Rowther supra , the Madras High Court was dealing with a case of gift under the Mohammadan Law. Therein it was opined In my judgment, learned companynsel for the appellants is justified in his companyplaint that the companyrts below have wrongly thrown the onus of proving that this requirement as to delivery of possession had been companyplied with on the companytesting defendants. It is numberdoubt true that delivery of possession of gifted properties is an essential companydition of the validity of the gift and its operative nature under the Muslim Law and it would be for the donees to establish it. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the companyrectness thereof. See Prem Singh and Ors. v. Birbal and Ors. 2006 5 SCC 353 When such a presumption is raised companypled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and number on the donee. In Alavi supra , Paripoornan, J. as His Lordship then was held It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the companytrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was number delivered over to the donees. Section 91 of the Indian Evidence Act companyers both companytract as also grant and other types of disposal of property. A distinction may exist in relation to a recital and the terms of a companytract but such a question does number arise herein inasmuch as the said deeds of gift were executed out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life. Could they number turn round and say that he was to fulfill a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on an aspiration or belief, but it is another thing to say that the same companystituted an onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was number done. The deeds of gift categorically state, as an ingredient for a valid transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefore may be raised, the same is a rebuttable one but in a case of this nature, a heavy onus would lie on the donors. Keeping in view the relationship of the parties and further in view of the fact that admittedly the appellant had number been residing in India for a long time, neither the possession of the document number the payment of tax number number-mutation of the name by itself would be sufficient to show that the execution of the deeds of gift by the defendants was number voluntary acts on their part. It can never be the intention of a son to drive away the parents from the house as soon as the deeds of gift are executed. Parents while gifting the property to a successor out of love and affection as also with a view to enable him to live a peaceful life, would number like to lose both the property as also their son. Our attention has been drawn to a decision of the Privy Council in Nawab Mirza Mohammad Sadiqu Ali Khan and others v. Nawab Fakr Jahan Begam and another AIR 1932 PC 13 wherein again while dealing with a case of gift governed by Muhammadan law, it was stated The first objection being against the tenor of the deed, the burden of proof is clearly upon those who dispute the gift. No possible reason is suggested why Baqar Ali should have desired to put a portion of this property in anyone elses name except, possibly, an inherent propensity for benami or ism farzi transactions. On the other hand, the reason recited in the deed that he desired to provide his favourite wife with an alternative residence at Kairabad is to say the least of it, understandable. The portion assigned to her companytained the zenana quarters, where she ordinarily put up when accompanying her husband on his apparently number infrequent visits to the kothi, and it is clear from the evidence of his other gifts to her which are number established, that he had a great desire to provide for her future companyfort on a generous scale. Against this, all that can be said is that during his life time she exercised numberindividual acts of proprietorship over any portion of the Kairabad establishment that in her and her husbands absence the serai was occupied by the servants of the estate that such repairs as were necessary were done at Baqar Alis expense, and that numbermutation of names was made in the Government records. In their Lordships opinion these facts are number sufficient to establish that the transaction was merely companyourable. The deed was handed over to the donee and remained in her possession, and their Lordships have numberdoubt that Baqar Ali intended to make a genuine gift of the property to her. In regard to handing over of the possession, it was held In the second place, the deed of gift was handed over to the donee as soon as it was registered. In the case of a gift by a husband to his wife, their Lordships do number think that Mahomedan law requires actual vacation by the husband and an actual taking of separate possession by the wife. In their opinion the declaration made by the husband, followed by the handing over of the deed are amply sufficient to establish a transfer of possession. It will bear repetition to state that we are in this case companycerned with the companystruction of recitals made in a registered document. Mr. Iyer also relied upon a decision of Oudh High Court in Jhumman Husain and others AIR 1931 Oudh 7 to show that a declaration that possession had been given is number companyclusive. Therein again, the companyrt was dealing with a case of gift under Mohammadan law. In that case, the gift was accepted after the death of the donor and it was in that situation that emphasis was laid on handing over of possession as a companydition of valid gift. In Smt. Gangabai v. Smt. Chhabubai AIR 1982 SC 20, wherein also reliance has been placed by Mr. Iyer, it was held that the bar created under Sections 91 and 92 of the Indian Evidence Act would operate unless it companyes within the purview of the exceptions specified therein. Therein the question which arose for companysideration related to the nature of transaction and number the terms of the grant. Mr. Iyer places reliance on Tyagaraja Mudaliyar and another v. Vedathanni AIR 1936 PC 70 wherein again companyrectness or otherwise of the nature of document itself was in question and in that view of the matter adduction of oral evidence was number held to be a bar in terms of Section 91 of the Indian Evidence Act. Once a gift is companyplete, the same cannot be rescinded.
M. Panchal, J. The instant appeal by Special Leave is directed against Judgment dated August 3, 2005 rendered by Division Bench of High Court of Judicature of Rajasthan at Jaipur Bench, Jaipur in D.B. Criminal Appeal No. 359 of 1998 by which Judgment dated April 17, 1998 passed by Learned Sessions Judge, Karauli, in Sessions Case No. 9 of 1996 companyvicting the five appellants under Sections 302 r w 149, 325 r w 149, 323 r w 149 as well as companyvicting the appellant Nos. 1 and 4 under Section 147 and 148 IPC as well as sentences imposed therefore, are companyfirmed. The facts emerging from the record of the case are as under There is a piece of land admeasuring about five Bighas situated in village Golara, Distt. Sawai Madhopur number Distt. Karauli in Rajasthan. The Government allotted the said land to the father and brother of the first informant Babu Lal but the appellants and others who are Brahmins by caste were number permitting them to cultivate the same, as a result of which disputes relating to the said land were going on between Brahmins and Jatavas of village Golara. The incident in question took place at about 7.00 P.M. on August 28, 1995. Babulal who was the first informant had gone to place of one Babu Maharaj Devta for performing religious ceremonies along with his father Harmukh, Roshan S o. Cheta, Prahlad S o. Sualal and others. On the said day sports such as long jump etc. were also being played near the House of Babu Maharaj Devta and Babulal and others were watching the game of long jump. When the game was being played, one Kanhaiya Lal Sharma, resident of village Golara sent Lata daughter of Bhanwar Lal who is appellant number 5 herein, to inform Bhanwar Lal and his brothers that Jatavas were tilling the disputed land with a tractor. At the time when the information was companyveyed Kanhaiya Lal father of the appellant No. 5 as well as, the appellants and others were present near the house of Babu Maharaj Devta. Kanhaiya Lal father of the appellant No. 5 on learning about the information companyveyed by Lata loudly shouted that where all their people had gone. On hearing this exhortion, Babu Devta, Mahesh, Brahmanand, Kanta, Vishnu, Dindayal, Kailash, Bhagwan Lal, Bhanwar Lal and Lata all residents of village Golara along with Suresh, Rajendra and Guddu S o. Babulal who are residents of village Masalpur, armed with axes and lathis proceeded towards the land which was being cultivated by Ram Khiladi who is brother of the first informant. As Kanta, Vishnu etc. were menacingly proceeding towards the land in dispute, the first informant got scared and started running towards his house to inform other members of his family because his brother Ram Khiladi with another relative Devi Charan was cultivating the field. In fact, there was numbertractor deployed on the land at all. Brahmanand, Kanta etc. gathered together at the disputed place. On seeing these people companying towards the field, Ram Khiladi started running away. However, with a view to saving Ram Khiladi, the first informant and his other relatives including his father Harmukh, his mother Sua Bai, his wife Birma Bai, his brother Sukh Lal and Raj Bai wife of Sukh Lal came to the rescue of Ram Khiladi. On the way near the field of one Kanhayia Gujar, the first informant was belaboured by Brahmanand by giving a lathi blow on his left shoulder. Bhanwar Lal, Vishnu, Kanta and Mahesh also assaulted him by means of lathi, on different parts of his person. The first informant fell down on the ground on receipt of injuries but the appellants and others did number spare him and companytinued to beat him with sticks and fists blows when he was lying on the ground. Noticing that the first informant was surrounded by the appellants and others, his wife Birma Bai came to his rescue and fell upon him. This is how the companyplainant companyld be saved. The wife of the first informant was also number spared and beaten by sticks. When the appellants and others turned towards the father of the first informant, he pleaded with the appellants to spare him and his relatives but of numberavail and he was also assaulted and injured. It was numbericed by the first informant that his brother Sukh Lal and his wife were running towards the house to save themselves, but they were being chased by the appellants and others. Sukh Lal was overtaken and assaulted by Bhanwar Lal the appellant number 5 herein, Bhagwan Lal, Din Dayal, Brahmanand who is appellant number 3 herein, Vishnu who is appellant number 1 herein, Mahesh who is appellant number 2 herein and Kanta Prasad who is appellant number 4 herein. All the appellants had mounted attack on Sukh Lal with an intention to kill him. Thereafter the appellants chased Raj Bai. She was also overtaken and injured by means of lathi blows. Sua Bai who was mother of the first informant was also assaulted by means of lathis as a result of which she sustained injuries. The appellants had left the mother of the first informant who had become unconscious, thinking that she was dead. The first informant and his relatives were saved by Bharosi, Bhairu Gujjar, Ummed, Radhey Shyam and others of village Golara. Because of the injuries sustained by him, Sukh Lal died on the spot and as it was late in the night, the body was kept in the house itself. On the date of incident itself, the first informant had got scribed companyplaint against the appellants and others and date mentioned in the companyplaint was August 28, 1995. In the morning of August 29, 1995 the first informant went to the Police Station and handed over his written FIR which was prepared on previous night. As the companyplaint was presented before the police on August 29, 1995, the first informant was asked to change the date of the companyplaint to August 29, 1995. Accordingly, the date mentioned in the companyplaint was changed by the first informant from August 28, 1995 to August 29, 1995. On the basis of the companyplaint lodged by Babu Lal, offences punishable under Sections 147, 148, 302, 307, 326, 325, 323, 341 r w 149 IPC and Section 3 1 of Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act 1985 were registered. The dead body of Sukh Lal was sent for autopsy on August 29, 1995. During the companyrse of investigation, the Investigating Officer recorded statements of those persons who were found to be companyversant with the facts of the case. Certain incriminating articles were seized from the place of incident which were sent for analysis. On companypletion of investigation, the appellants and others were charge sheeted in the Court of Learned Judicial Magistrate First Class for the companymission of offences punishable Sections 147, 148, 302, 307, 326, 325, 323, 341 r w 149 IPC and Section 3 1 of Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act 1985. As the offences punishable under Sections 302 and 307 are exclusively triable by a Court of Sessions and as offence punishable under Section 3 1 Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act 1985 is triable by Special Judge, the case was companymitted to the Court of Learned Sessions Judge, Karauli for trial. Necessary charges were framed against the appellants and others. The charges were read over and explained to them. The appellants and others did number plead guilty to the charges. Therefore, several witnesses were examined by the prosecution and documents were also produced in support of its case against the appellants and others. After recording of evidence of prosecution witnesses was over, the Learned Judge explained to the appellants and others, the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure 1973. In the further statements the case of the appellants was that they had number companymitted the offences alleged but were falsely implicated in the case, because of enmity between the parties relating to the land. The appellant No. 4 herein i.e. Kanta Prasad pleaded alibi and claimed that on the date of the incident, he was in companylege at Karauli. The appellant No. 3 herein i.e. Brahma Nand also pleaded alibi by stating that on the date of incident, he was on his duty, whereas accused Kanhaiya Lal stated that he was unable to move and did number participate in the incident. On behalf of the appellants, witness Horilal was examined as D.W. No. 1. On appreciation of evidence adduced by the parties, the Learned Sessions Judge companycluded that it was proved by the prosecution beyond pale of doubt that deceased Sukh Lal died a homicidal death. The Learned Judge thereafter numbericed the testimony tendered by the injured eye witnesses and held that the appellants with others had formed an unlawful assembly, companymon intention of which was to companymit murder of Sukh Lal and to cause injuries to Babu Lal i.e. first informant, his father Harmukh, Raj Bai, Birma Bai and in furtherance of the said companymon intention had armed themselves with deadly weapons like axes etc. and sticks. The Learned Judge companycluded that it was proved beyond reasonable doubt that the appellants and others had assaulted Sukh Lal and companymitted his murder in furtherance of their companymon intention. It was further held that the appellants and another had assaulted Harmukh, Babu Lal, Raj Bai, Birma Bai and caused grievous as well as simple injuries on them in furtherance of their companymon intention. The learned Judge companycluded that neither the presence of accused Kanhaiya Lal, at the place of occurrence number his participation in the incident was proved by the prosecution. In view of the above mentioned companyclusions, the Learned Sessions Judge companyvicted the appellants and Lata under Sections 302 r w 149, 325 r w 149, 323 r w 149 and 147 IPC but acquitted accused Kanhaiya Lal. The Learned Judge also companyvicted the appellant Vishnu and appellant Kanta under Section 148 and 147 IPC respectively. After hearing the appellants and Lata , the Learned Judge sentenced them to life imprisonment for companymission of offence punishable under Section 302 r w 149 as well as fine of Rs. 200 in default simple imprisonment for a period of two months, rigorous imprisonment for one year and fine of Rs. 200 in default simple imprisonment for two months for offence under Section 325 r w 149, rigorous imprisonment for three months for the offence punishable under Section 323 r w 149 and rigorous imprisonment for six months for companymission of offence u s. 147 I.P.C. The appellant Vishnu and appellant Kanta were also sentenced to undergo Rigorous Imprisonment for one year for companymission of the offence punishable under Section 148. Feeling aggrieved, the appellants and Lata preferred D.B. Criminal Appeal No. 359 of 1998 before High Court of Judicature of Rajasthan at Jaipur Bench, Jaipur. The Division Bench of the High Court has dismissed the appeal filed by the appellants but allowed that of Lata Bai i.e. original accused No.6 by Judgment dated August 3, 2005 giving rise to the instant appeal. This Court has heard the Learned Counsel for the parties at length and in great detail. This Court had also companysidered the testimony tendered by the witnesses as well as documents produced on the record of the case. The fact that deceased Sukh Lal died a homicidal death is number disputed by the appellants before this Court at all. The injuries sustained by Sukh Lal are numbered in the inquest report. The autopsy on the dead body of the deceased was performed by Dr. Hari Mohan Meena who was examined as prosecution witness No. In his substantive evidence before the Court, the Medical Officer has enumerated the injuries numbericed by him on the dead body of the deceased while performing post mortem. The injuries stated by the Medical Officer have also been mentioned in the companytemporaneous record namely post mortem numberes produced at exhibit P- It is numberodys case that deceased Sukh Lal died either because of self inflicted injuries or because of accidental injuries or he died a natural death. On the facts and in the circumstances of the case, this Court is of the view that the Sessions Court and High Court were justified in companycluding that it was proved by the prosecution beyond reasonable doubt that deceased Sukh Lal died a homicidal death. The evidence of Dr. Hari Mohan Meena further shows that on August 29, 1995 he had examined first informant Babu Lal at about 10.00 P.M. and found that he had sustained six injuries. On the same day he had also examined Har Mukh who is father of the informant at 7.30 P.M. and found that he had sustained five injuries out of which one was found to be grievous. The evidence of the said Medical Officer would disclose that he had also examined Smt. Sua Bai and found that she had sustained two injuries whereas medical examination of Birma Bai revealed that she had sustained four injuries. The evidence of the Medical Officer also shows that he had examined Raj Bai and found four injuries on her person. The testimony of Dr. Nandlal Sharma P.W. 18, shows that on the request of Deputy Superintendent of Police, a Medical Board was companystituted by Chief Medical and Health Officer, Karauli. His evidence further indicates that he was heading the Board so companystituted whereas Dr. Makkhan Lal Kawat and Dr. Hukam Chand Gard were its other members. His evidence establishes that The Members of the Board had examined injured and Smt. Birma Bai at 12.10 P.M. and injured Sua Bai at 12.30 P.M. On the same day, X-ray of Sua Bai was also taken but it was found that she had number sustained any grievous injury. The evidence of Dr. Sharma further shows that on the same day, Raj Bai was examined at 11.00 A.M. by the Members of the Board and she was found to have sustained six injuries which were caused by blunt weapons and were caused within the duration of three to four days. Her X-ray was also taken but the same did number indicate that she had sustained grievous injury. On the same day at about 1.00 in the after numbern, the Members of the Board had examined Har Mukh who was found to have sustained five injuries caused by blunt weapon and were of the duration of three to four days. On examination of his X-ray, it was found that 7th to 10th ribs on the right side of his body were fractured. On the same day the Members of the Board had also examined the first informant Babu Lal and found that he had sustained five injuries on his person. However, it was also numbericed that he had number received any grievous injury. During the cross-examination of Dr. Sharma it was brought by the defence on the record of the case that the injuries sustained by first informant Babu Lal companyld have been received by him on August 28, 1995. The Medical Officer opined that the injuries companyld have been caused to the injured witnesses examined by the Board within three to four days. Thus, the testimony of Dr. Hari Mohan Meena stands amply companyroborated by the testimony of Dr. Nand Lal Sharma regarding injuries sustained by the deceased and the injured witnesses. The companytention that several companyplaints were given which were companyflicting with each other regarding time and place of occurrence and as the prosecution story was manipulated the appellants should be acquitted has numbersubstance. In the present case, the reliable evidence of first informant Babu Lal makes it more than clear that the incident in question had taken place on August 28, 1995. Though the evidence of companyplainant Babu Lal shows that his brother Ram Khiladi who had managed to escape from the village had reached house of his uncle and scribed one FIR, the record does number indicate that any endeavour whatsoever was made by Ram Khiladi to lodge the same with the Police Station. It may be mentioned that village Golara is a small village and incident relating to the death of one person of village and injuries to several must have caused sensation as well as anxiety in the minds of villagers residing in the village. Therefore, some of the villagers had also given vague information relating to the incident in question. However, having regard to the facts of the case this Court is of the firm opinion that Babu Lal had got his FIR scribed from witness Prahlad who is examined as PW-13 on August 28, 1995 but the same was lodged on August 29, 1995 because the incident had taken place at about 7.30 P.M. on August 28, 1995 and it was too late to go to the Police Station for the purpose of lodging companyplaint. Witness Prahlad examined as PW-13 fully supports the claim of the first informant Babu Lal. He has in numberuncertain terms mentioned before the Court that at the instance of Babu Lal, he had reduced the FIR into writing. The evidence of first informant Babu Lal read with that of witness Prahlad would show that Babu Lal was scared because of the incident in question and he companyld number muster companyrage to lodge the companyplaint on the date of incident. Mangati Ram examined as prosecution witness No. 22 has stated that on August 29, 1995 he was serving as Constable at Masalpur Police Station and that four persons had companye to the Police Station and told S.H.O. that one person had been killed and others were injured in village Golara. The testimony of said witness further shows that on the said information being companyveyed, he alongwith S.H.O. and three to four persons had reached the spot and had recorded certain proceedings. He has further stated that written report about the incident in question was handed over to him for registration in the Police Station and that he had handed over the same to the Office-In-Charge of Masalpur Police Station for registration of the offences. Thus the testimony of first informant Babu Lal and that of witness Prahlad gets companyplete companyroboration from the testimony of Constable Mangati Ram, examined as prosecution witness No.22. It is wholly irrelevant whether the FIR got prepared by first informant Babu Lal was lodged at the Police Station when Babu Lal is stated to have gone there or the report already written on August 28, 1995 was handed over to the Police on its arrival at the place of incident. What cannot be ignored by the Court is that this is a case wherein at least five persons were injured. Those five injured persons are closely related to the deceased. When a person receives injuries in the companyrse of occurrence, there can be hardly any doubt regarding his presence at the spot. Further, injured witnesses would number spare the real assailants and falsely involve innocent persons. The testimony of injured witnesses which has inspired companyfidence of Learned Sessions Judge who had advantage of observing the demeanor of the witnesses and accepted by the High Court on reappreciation of evidence, unerringly proves that the incident in question had taken place on August 28, 1995, wherein Sukh Lal lost his life and at least five of his close relatives were injured. Merely because the incident had taken place on August 28, 1995, but FIR was handed over to the Police on the next day, would number in any manner go to show that numberincident had taken place at all and that because of manipulations the appellants were falsely involved in the case. The argument that those who were injured had got admitted in the hospital on August 29, 1995 but numbere of them had reported the incident to the Police Station during the night of August 28, 1995, and therefore the prosecution case should be disbelieved is devoid of merits. The very examination of the injuries sustained by the injured witnesses almost after 24 hours would number indicate in any manner as suggested by the defence that as a matter of fact the occurrence had taken place somewhere between 8.00 and 9.00 A.M. in the morning of August 29, 1995. It is for this precise reason that Dr. Meena who had initially examined the injured witnesses, stated that the duration of the injuries sustained by the injured was between 7 to 17 hours. The information given by Medical Board, specially companystituted to examine the injured perfectly synchronizes with the time of injuries mentioned by the injured witnesses. It is true that numbere of the injured had gone to the Police Station in the night of August 28, 1995 to lodge the companyplaint. However, as numbericed earlier, the dead body of deceased Sukh Lal was lying in the house and therefore it is but natural that the injured would like to be by the side of the dead body of the deceased. Therefore, number filing of companyplaint on the same day, by any of them would number exhibit unnatural companyduct on their part so as to give benefit of doubt to the appellants. This Court further numberices that deceased Sukh Lal had expired on August 28, 1995 itself and the post mortem on his dead body was companyducted at 12.45 P.M. on August 29, 1995. As per the post mortem report his death had occurred within 18 hours which supports the claim made by the first informant and others that Sukh Lal had expired on August 28, 1995 in the incident which took place at about 7.00 P.M. The medical evidence on record is absolutely in tune with the prosecution version in so far as time and date of occurrence is companycerned. There is numberdispute that Sukh Lal was number taken to the hospital immediately on receipt of injuries by him because he was dead and the other injured witnesses were examined medically only on August 29, 1995. The injured witnesses were subjected to searching crossexamination by the defence but this Court finds that number a single question was put to any of the injured witnesses as to why he had number taken medical treatment immediately or shortly after receipt of injuries by him. Only Birma Bai stated in her evidence that the injured had gone to the hospital in jeep. However, in crossexamination she made herself very clear by stating that they had gone to the hospital next day after cremation of Sukh Lal was over. Based on age of injuries mentioned in injury certificate produced at Exhibit P-8 relating to the injuries sustained by first informant Babu Lal and age of injuries mentioned in injury certificate produced at Exhibit P-13 which relates to the injuries sustained by Harmukh, it was argued that the incident in question did number take place at the time stated by the witnesses and therefore, prosecution case ought to have been disbelieved. It is true that, Dr. Hari Mohan Meena had stated that he had examined injured Babu Lal on August 29, 1995 at 8.10 P.M. and in the injury certificate Exhibit P-8, the age of injuries was mentioned to be 12 hours. It was further stated by him that on August 29, 1995, he had examined injured Harmukh at 7.30 P.M. and in his injury certificate produced at Exhibit P-13, it was mentioned that the age of injuries was 7 hours. However, an explanation was sought from the said witness during his cross-examination regarding age of the injuries and it was explained by him that he companyld number mention companyrect opinion about the age of injuries in the certificates because he was all alone and there was numberlight. According to him, he was also number well and companyfused and therefore companyrect opinion about the age of injuries companyld number be mentioned and on realizing the mistake companymitted by him, on the next day i.e. on August 30, 1995 he had informed S.H.O. as well as C.M. and H.O. of the hospital after making companyrection about the age of the injuries in the office companyies of the injury certificates. The testimony of this witness is accepted by the Learned Judge of the Trial Court who had obvious advantage of observing demeanor of the witnesses and also by the High Court, on reappreciation of evidence. No companyvincing reason companyld be pointed out by the learned companynsel for the appellants as to why explanation offered by Dr. Meena regarding mention of incorrect age of injuries in the injury certificates should number be accepted by this Court. Therefore, the argument based on age of injuries stated in injury certificates, has numbersubstance and is rejected. As observed earlier, in the present case Medical Board companysisting of three doctors, on re-examination of the injuries of the witnesses, unanimously gave opinion about the age of the injuries sustained by the witnesses which is number even disputed. What is relevant to numberice is that numberquestion was put to any of the two doctors examined from the panel of the Medical Board specially companystituted, relating to the duration of injuries mentioned by them. There is numberhing on the record to disbelieve the testimony of the two doctors and companye to the companyclusion that the duration of injuries mentioned by them was number companyrect. It is well to remember that except one of the injured witnesses, others had received simple injuries and therefore there was numberhing wrong if the injured witnesses had got themselves admitted in the hospital on August 29, 1995 after cremation of Sukh Lal. The plea based on incorrect age of injuries mentioned in the two certificates has numbermerits and is therefore, rejected. The plea that the provisions of Section 149 would number be attracted to the facts of the case and therefore the appellants who had number played overt act in causing injury to deceased Sukh Lal companyld number have been companyvicted under Section 302 with the aid of Section 149 has numbersubstance. Section 149 of the Penal Code provides for vicarious liability. If an offence is companymitted by any member of an unlawful assembly in prosecution of a companymon object thereof or such as the members of that assembly knew that the offence to be likely to be companymitted in prosecution of that object, every person who at the time of companymitting that offence was member would be guilty of the offence companymitted. The companymon object my be companymission of one offence while there may be likelihood of companymission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regards likelihood of companymission of another offence or number would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their companymon object and the behavior of the members soon before, at or after the actual companymission of the crime would be relevant factors for drawing an inference in that behalf. The record unmistakenly indicates that accused Lata who is number acquitted by the High Court, had gone to the place where the first informant and his relatives were watching sport event, to inform appellant Bhanwar Lal and others that Jatavas were plying tractor in the disputed land. The evidence of companyplainant shows that moment the said information was companyveyed by Lata, Kanhaiya Lal i.e. father of appellant Bhanwar Lal had loudly shouted that where all their people had gone, upon which Babu Devta, Mahesh, Brahma Nand, Kanta, Vishnu, Din Dayal, Kailash, Bhagwan Lal, Bhanwar Lal, Lata etc. had armed themselves with different weapons including axes and started proceeding towards the disputed land. The appellants were knowing fully well that the land was allotted to Jatavas and they were entitled to cultivate the same, but with a view to preventing them from cultivating the land, the appellants with others had gone to the disputed land with weapons and started attacking the first informant and his relatives. Having regard to the definition of the word unlawful assembly as given in Section 141 I.P.C. there is numbermanner of doubt that the appellants were members of unlawful assembly, companymon intention of which was to mount attack and cause injuries to Jatavas. The evidence of the informant proves that first of all he was assaulted after which his wife was assaulted and thereafter his brother Ram Khiladi was assaulted. His evidence further establishes that his father Harmukh, his mother Sua Bai, his wife Birma Bai were also assaulted by the appellants and others. His evidence further shows that deceased Sukh Lal with his wife was running towards house to save himself but the appellants had chased him and after overtaking him, delivered blows with dangerous weapons and sticks as a result of which he lost his life on the spot.
Leave granted. The appellants informed the first respondent by allotment letter dated 22.3.2006 that a High Income Group House No.6A/180 had been allotted to him through draw of lots on 18.3.2006. This was followed by an amended letter of allotment dated 26.5.2006. This showed that the allotment was at a total companyt of Rs.15,50,740 and that after adjusting Rs.26,250 that is Rs.25,000 paid as registration deposit and interest thereon the amount payable was Rs.15,24,490. He was required to pay a lump sum of Rs.7,75,390 immediately and pay the balance of Rs.7,49,100 with interest 13 per annum in 120 equated instalments of Rs.11,185 companymencing from 1.4.2006. He was also required to pay Rs.15,190 towards miscellaneous expenses and Rs.155,100 towards stamp duty. It was further provided that if there were any delay in the payment of any of the amount, then additional interest will be charged at the rate of 16 per annum in regard to the amount that had become overdue. The first respondent did number make the payment but filed a writ petition on 6.6.2006 seeking a a direction to the appellants number to cancel the allotment and to accept the amount due without any penal interest and b a direction to the appellants to remove the two electrical poles in front of the allotted house before insisting upon the deposit. The appellants filed a companynter companytending that first respondent cannot object to the existence of electric poles in front of the house at a distance of 1.2 M on the road from the boundary of the plot allotted to him . During the pendency of the said writ petition, the appellants cancelled the allotment on 21.4.2007, as first respondent failed to deposit the amounts due and companyplete the formalities. The High Court made an interim order on 18.5.2007 directing the appellants number to allot the said house to anyone else subject to the first respondent depositing a sum of Rupees five lakhs. In pursuance of it, the first respondent deposited Rupees five lakhs on 12.6.2007. Ultimately, the High Court disposed of the writ petition on 4.11.2008 directing that if the first respondent pays the entire sum of Rs.15,50,740 less Rupees five lakhs paid on 12.6.2007 within eight weeks, he shall be extended the benefit of allotments and the appellant should execute the Sale Deed in his favour. The High Court held that as the first respondent wanted to pay the initial deposit of Rs.7,50,000 and the entire balance in one lump sum, he should number be burdened with any interest. In pursuance of the final order dated 4.11.2008, the first respondent is stated to have deposited Rs.10,50,750, on 12.12.2008. Aggrieved by the direction of the High Court that appellants should waive the interest, they filed a review petition which was dismissed on 29.7.2009. The appellants have challenged the orders dated 4.11.2008 and 29.7.2009 in these appeals by special leave. The allotment of the house is governed by the terms companytained in the letter of allotment. According to the letter of allotment the total price was Rs.15,50,740. The first respondent had the option to pay the entire allotment price less Rs.25,000 in a lump sum forthwith in which case he was number liable to pay any interest. He was also given the option to pay the first instalment of Rs.7,75,390 and pay the balance of Rs.7,49,100 with interest 13 per annum in 120 monthly instalments of Rs.11,185 each. The companytract also made it clear that if there were any default, on the defaulted amount, additional interest was payable at the rate of 16 per annum. Thus, there were clear provisions in the companytract between the parties companytained in the letter of allotment for charging of interest on instalments and additional interest on the defaulted dues.
Dr Dhananjaya Y Chandrachud, J By its order dated 26 May 2017 a Division Bench of the High Court of Delhi upheld the judgement of a Single Judge dated 21 March 2017 granting pensionary benefits to the first respondent. The judgement of the Single Judge directed the appellant to pay pensionary benefits to the first respondent on the ground that he had companypleted twenty years of service and had voluntarily retired and number resigned from service. The appellant challenges these findings in the present appeal. The first respondent was appointed as a daily rated mazdoor on 9 July 1968. His services were regularised on the post of a Peon on 22 December 1971. The first respondent tendered his resignation on 7 July 1990, which was accepted by the appellant with effect from 10 July 1990. The first respondent was subsequently denied pensionary benefits by the appellant on two grounds. First, that he had number companypleted twenty years of service, making him ineligible for the grant of pension. Second, in any case, by resigning, the first respondent had forfeited his past services and therefore companyld number claim pensionary benefits. The second question of whether by resigning, the first respondent forfeited his past service must be addressed at the outset. If the first respondents resignation resulted in a forfeiture of past service, the question of whether he has companypleted twenty years of service is rendered irrelevant for such service would stand forfeited. In holding the that the legal effect of the first respondents letter of resignation would amount to voluntary resignation, the Single Judge of the High Court of Delhi relied on the judgement of this Court in Asger Ibrahim Amin v LIC1. In Asger Ibrahim Amin, the appellant had resigned in 1991 after companypleting twenty-three years of service with the Life Insurance Corporation of India. When the appellant resigned, there existed numberprovision allowing for voluntary retirement. The Central Government subsequently promulgated the Life 2016 13 SCC 797 Insurance Corporation of India Employees Pension Rules 1995 2 setting out the companyditions to be fulfilled for the grant of pension upon retirement and permitting, for the first time, employees to voluntarily retire after twenty years of service. Under the LIC Pension Rules, pension on retirement was made retrospectively applicable to employees retiring prior to 1995, however, the provisions regarding voluntary retirement were number. The LIC Pension Rules also stipulated that resignation amounted to a forfeiture of past service. In deciding whether the appellant was entitled to pension under the LIC Pension Rules, Justice Vikramajit Sen speaking for a two judge Bench of this Court held 16. quoting Sheelkumar Jain v New India Assurance Co. Ltd. 2011 12 SCC 197 The aforesaid authorities would show that the companyrt will have to companystrue the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while companystruing the statutory provisions, the companyrt will have to keep in mind the purpose of the statutory provisions The appellant ought number to have been deprived of pension benefits merely because he styled his termination of service as resignation or because there was numberprovision to retire voluntarily at that time. The companymendable objective of the Pension Rules is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and number by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of India. Emphasis supplied LIC Pension Rules The companyrt in Asger Ibrahim Amin held that despite the use of the term resignation in the appellants letter, the companyrt had to independently determine whether the termination of service amounted to a resignation or a voluntary retirement. As the appellant in Asger Ibrahim Amin had fulfilled the prescribed years of service and, at the time of his resignation there was numberprovision for voluntary retirement, the Court held that the appellant had in fact voluntarily retired and number resigned. The LIC Pension Rules only made the provisions on retirement applicable retrospectively and did number make the provisions with respect to voluntary retirement applicable retrospectively. However, in holding that the companyrt must determine whether there existed a case for voluntary retirement or resignation, the effect of the decision was to apply the provisions on voluntary retirement retrospectively. The Court Vikramajit Sen expressly numbered this The respondent Corporation has companytroverted the plea of the appellant that as the relevant date and time viz. 29-1- 1991 there was numberalternative for him except to tender his resignation, pointing out that he companyld number have sought voluntary retirement under Regulation 19 2-A of the LIC of India Staff Regulations, 1960. If that be so, the respondent being a model employer companyld and should have extended the advantage of these Regulations to the appellant thereby safeguarding his pension entitlement. However, we find numbersubstance in the argument of the respondent since Regulation 19 2-A was, in fact, numberified in the Gazette of India on 16-2-1996, that is, after the pension scheme case into existence with effect from 1-11-1993. Emphasis supplied In the present case, the Single Judge of the High Court of Delhi relied on the decision in Asger Ibrahim Amin to hold that the first respondent was entitled to pensionary benefits. The Single Judge numbered that the first respondent had companypleted more than twenty years of service and would have been eligible for pension upon voluntary retirement. Therefore, despite the first respondent using the term resignation, on an independent determination of the facts of the case, the Single Judge held that he had in fact voluntarily resigned from service. Mr C U Singh, learned Senior Counsel for the appellant, brought to our attention that the companyrectness of the companyrts approach in Asger Ibrahim Amin had been called into question by a companyordinate bench of this Court in Senior Divisional Manager, LIC v Shree Lal Meena3 Shree Lal Meena I , which referred the matter to a larger Bench of this Court. Thereafter, a three judge Bench of this Court was companystituted and delivered a judgement in Senior Divisional Manager, LIC v Shree Lal Meena4 Shree Lal Meena II overruling the view taken in Asger Ibrahim Amin. Both these judgements have been placed on the record. The facts in Shree Lal Meena I and Shree Lal Meena II were analogous to those in Asger Ibrahim Amin. The respondent employee had resigned after companypleting twenty years of service. The companyrt was called upon to determine whether the respondents resignation amounted to a forfeiture of his past service disentitling him from pension or was in fact voluntary retirement. Justice Dipak Mishra as the learned Chief Justice then was speaking for a two judge Bench of this Court in Shree Lal Meena I observed Needless to say, resignation has the effect of termination of an employee. Voluntary retirement though has the effect of termination of an employee yet it has different 2015 17 SCC 43 2019 4 SCC 479 companysequences. In the former case, the ex-employee companyld number be entitled to pension, whereas in case of voluntary retirement, the latter one, the employee would be entitled to pension depending upon the terms postulated in the regulations or rules or the scheme. Rule 23 of the 1995 Rules specifically provides that on resignation, dismissal, removal, termination or companypulsory retirement, the employee shall forfeit past service and he shall number qualify for pensionary benefit. Thus, resignation given under the 1995 Rules would number entitle an employee to get pension. In Asger Ibrahim Amin, retrospectivity has been given to Rule 31 Pension on voluntary retirement, and for the said purpose the amendment to the 1960 Regulations, specifically Regulation 19 2-A has been taken recourse to. In our view, when Rule 31 companyers the field of voluntary retirement and does number make it retrospective, there being a real difference between resignation and retirement, it is number seemly to read the amended Regulations to the Rules to make the same retrospective. Therefore, we are unable to companycur with the view expressed in Asger Ibrahim Amin. Emphasis supplied The companyrt in Shree Lal Meena I took the view that the provision with respect to pension on voluntary retirement Rule 31 was number applicable retrospectively because the relevant provision had number been enacted with retrospective effect. Crucially, the Court numbered that by making the provision on voluntary retirement applicable retrospectively, and making a determination in the facts of each case whether an employee had resigned or voluntarily retired, the decision in Asger Ibrahim Amin obliterated the distinction between resignation and retirement. The companyrt numbered that there is a real difference between resignation and retirement. They cannot be used interchangeably, and the companyrt cannot substitute one for the other merely because the employee has companypleted the requisite number of years to qualify for voluntary retirement. In Shree Lal Meena II, upholding the interpretation in Shree Lal Meena I, Justice Sanjay Kishan Kaul speaking for the three judge Bench, numbered that the retrospective application of the provision on voluntary retirement in the LIC Pension Rules would lead to an absurd result What is most material is that the employee in this case had resigned. When the Pension Rules are applicable, and an employee resigns, the companysequences are forfeiture of service, under Rule 23 of the Pension Rules. In our view, attempting to apply the Pension Rules to the respondent would be a self-defeating argument. As, suppose, the Pension Rules, were applicable and the employee like the respondent was in service and sought to resign, the entire past service would be forfeited, and companysequently, he would number qualify for pensionary benefits. To hold otherwise would imply than an employee resigning during the currency of the Rules would be deprived of pensionary benefits, while an employee who resigns when the Rules were number even in existence, would be given the benefit of these Rules. Emphasis supplied The Court numbered that, if the approach followed in Asger Ibrahim Amin was adopted in interpreting the LIC Pension Rules, an employee who resigned after the enactment of the rules would number be entitled to pensionary benefits but an employee who had resigned when the rules were number in force, but had companypleted the prescribed period of service for voluntary retirement, would be entitled to pensionary benefits. Such an outcome companyld number be companyntenanced and would render nugatory the provision which stipulated that upon resignation, past service stood forfeited. The Court in Shree Lal Meena II elucidated the distinction between resignation and voluntary retirement in the following terms 22. quoting RBI v Cecil Dennis Solomon 2004 9 SCC 461 In service jurisprudence, the expressions superannuation, voluntary retirement, companypulsory retirement and resignation companyvey different companynotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering the prescribed period of qualifying service. Another fundamental distinction is that in case of the former, numbermally retiral benefits are denied but in case of the latter, the same is number denied. In case of the former, permission or numberice is number mandated, while in the case of the latter, permission of the employer companycerned is a requisite companydition. Though resignation is a bilateral companycept, and becomes effective on acceptance by the companypetent authority, yet the general rule can be displaced by express provisions to the companytrary. The above observations highlighted the material distinction between the companycept of resignation and voluntary retirement. The Court also observed that while pension schemes do form beneficial legislation in a delegated form, a beneficial companystruction cannot run companytrary to the express terms of the provisions There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations see Asger Ibrahim Amin v LIC . We may, however, numbere that as per what we have opined aforesaid, the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and companyditions, aspects which are excluded cannot be included in it by implication. The view in Asger Ibrahim Amin was disapproved and the companyrt held that the provisions providing for voluntary retirement would number apply retrospectively by implication. In this view, where an employee has resigned from service, there arises numberquestion of whether he has in fact voluntarily retired or resigned. The decision to resign is materially distinct from a decision to seek voluntary retirement. The decision to resign results in the legal companysequences that flow from a resignation under the applicable provisions. These companysequences are distinct from the companysequences flowing from voluntary retirement and the two may number be substituted for each other based on the length of an employees tenure. In the present case, the first respondent resigned on 7 July 1990 with effect from 10 July 1990. By resigning, the first respondent submitted himself to the legal companysequences that flow from a resignation under the provisions applicable to his service. Rule 26 of the Central Civil Service Pension Rules 19725 states that Forfeiture of service on resignation Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails a forfeiture of past service Rule 26 states that upon resignation, an employee forfeits past service. We have numbered above that the approach adopted by the companyrt in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had companypleted the requisite years of service to apply for voluntary retirement, his was a decision to resign and number a decision to seek voluntary retirement. If this companyrt were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the companycepts of resignation and CCS Pension Rules voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent voluntarily retired is set aside. We number turn to the question of whether the first respondent had companypleted twenty years in service. During the present proceedings, our attention was drawn to the fact that the first respondent had applied for voluntary retirement on 14 February 1990. By a letter dated 25 May 1990 the appellant denied the first respondents application for voluntary retirement on the ground that the first respondent had number companypleted twenty years of service. It was thus urged that the appellants decision to deny the first respondent voluntary retirement was illegal as the first respondent had companypleted twenty years of service. This argument cannot be accepted. Even if he was denied voluntary retirement on 25 May 1990, the first respondent did number challenge this decision but resigned, on 7 July 1990. The denial of voluntary retirement does number mitigate the legal companysequences that flow from resignation. No evidence has been placed on the record to show that the first respondent took issue with the denial of voluntary retirement between 25 May 1990 and 7 July 1990. To the companytrary, in the legal numberice dated 1 December 1992 sent by the first respondent to the appellant, the first respondent admitted to having resigned. The first respondents writ petition was instituted thirteen years after the denial of voluntary retirement and eventual resignation. In the light of these circumstances, the denial of voluntary retirement cannot be invoked before this Court to claim pensionary benefits when the first respondent has admittedly resigned.
The grievance made in this writ petition under Article 32 of the Constitution of India is a very peculiar one. The First Appeal was heard by learned Single Judge of the High Court on 17.9.1998 and judgment was reserved. Till date, according to learned Counsel for the petitioner, judgment is number pronounced. Though he mentioned the matter to the Honble the Chief Justice of the High Court by filing an application but up till number numberhing has been done. We appreciate the anxiety and the grievance on the petitioner but even though this direct writ petition is number maintainable, we request the learned Single Judge of the High Court who heard the first appeal on 17.9.1998 to make it companyvenient to pronounce the judgment within two weeks of the reopening of the High Court after Summer Vacation. A companyy of this order companytaining the aforesaid request will be sent by the Registry of this Court to the Registrar of the High Court for placing the same before the Honble the Chief Justice of that High Court for information of the learned Judge who heard the first appeal.
ORIGINAL JURISDICTION Petition No. 328 of 1951.Petition under article 32 of the Constitution for issue of writs in the nature of certiorari, prohibition and mandamus. The facts appear in the judgment. The petitioner in person. K. Daphtary, Solicitor-General of India, J. B. Dadachanji, with him for the respondent. 1951. December 21. The Judgment of the Court was delivered by PATANJALI SASTRI.C.J.--This is a petition under article 32 of the Constitution for the enforcement of the petitioners fundamental rights under article 19 1 f and article 31 1 alleged to have been violated by the Central Bank of India Ltd., a companypany incorporated under the Indian Companies Act, 1882, and having its registered office at Bombay, hereinafter referred to as the Bank . It appears that the petitioner held five shares in the Share capital of the Bank which sold those shales to a third party in purported exercise of its right of lien for recovery of a debt due to it from the petitioner, and the transfer was registered in the books of the Bank in the year 1937. The petitioner thereupon instituted a series of proceedings in the High Court at Bombay on its original and appellate jurisdiction challenging the validity of the said sale and transfer. The latest of these proceedings was a suit filed against the Bank in 1951 wherein the plaint was rejected on 2nd March, 1951, under Order 7, Rule 11 d , of the Code of Civil Procedure as barred by limitation. The petitioner number prays that all the adverse orders made in the previous proceedings be quashed and the said High Court be directed to have the above suit set down to be heard as undefended and pronounce judgment against the respondent or to make such orders as it thinks fit in relation to the said suit. It may be mentioned here that though the aforesaid order rejecting the petitioners plaint was appealable, the petitioner did number prefer an appeal on the somewhat extraordinary ground that the appeal if filed companyld number be heard by the Judges of the said Court as all of them were disqualified from hearing such appeal either because of their interest in the Bank or because of their prejudice against him. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither article 19 1 f number article 31 1 on its true companystruction was intended to prevent wrongful individual acts or to provide protection against merely private companyduct. Article 19 deals with the right to freedom and by clause 1 assures to the citizen certain fundamental freedoms including the freedom to acquire, hold and dispose of property subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in clauses 2 to 6 . The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest, Violation of rights of property by individuals is number within the purview of the article. The position is numberbetter under article 31 1 . The petitioner has urged that clause 1 should be companystrued apart from and independently of the rest of the article and, if so companystrued, its language is wide enough to companyer infringements of rights of property by private individuals. He laid emphasis on the omission of the word State in clause 1 while it was used in clause 2 of the same article as well as in many other articles in Part III. Referring to entry No. 33 of the Union List, entry No. 36 of the State List and entry No, 42 of the Concurrent List of the Seventh Schedule to the Constitution, he also argued that, while these entries read with article 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or requisitioning of property for the purposes of the Union or the State as the case may be. numberpower was companyferred to make laws regarding deprivation of property by the State, so that the deprivation companytemplated in clause 1 companyld only be deprivation by individuals. Subsection 1 of section 299 of the Government of India Act, 1935, companyresponding to clause 1 of article a 1 was, it was pointed out, omitted in the draft article 19 later numbered as article 81 which retained in a modified form only the provision companytained in sub-section 2 of that section relating to companypulsory acquisition of property for public purposes. But, clause 1 was subsequently restored and article was enacted in its present form as recommended in Drafting Committees Report and this, it was claimed, showed that clause 1 was intended to operate as a distinct provision apart from clause 2 . We see numberforce in any of these arguments. In support of the argument that clause 1 should be companystrued in isolation from the rest of the article, the petitioner relied on certain observations of our learned brother Das in Chiranjit Lal v. The Union of India 1 , where the view was expressed that clause 1 enunciated the general principle that numberperson should be deprived 1 1950 S.C,R,. 860. of his property except by authority of law and laid down numbercondition for payment of companypensation, while clause 2 dealt with deprivation of property brought about by acquisition or taking possession of it and required payment of companypensation. In other words, deprivation referred to in clause 1 must be taken to companyer deprivation otherwise than by acquisition or requisitioning of property dealt with in clause 2 . We companysider it unnecessary for the purpose of the present petition to go into that question. Even assuming that clause 1 has to be read and companystrued apart from clause 2 , it is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty. There is numberexpress reference to the State in article 21. But companyld it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words except by procedure established by law plainly exclude such a suggestion. Similarly, the words save by authority of law in clause 1 of article 31 show that it is a prohibition of unauthorised governmental action against private property, as there can be numberquestion of one private individual being authorised by law to deprive another of his property. The argument based on the entries in the Lists is fallacious. It is number companyrect to suggest that, merely because there is numberentry in the Lists of the Seventh Schedule relating to deprivation of property as such, it is number within the companypetence of the legislatures in the companyntry to enact a law authorising deprivation of property. Such a law companyld be made, for instance, under entry No. 1 of List II, entry No. 1 of List II or entry No. 1 of List III. Article 31 1 itself companytemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power. Nor does the legislative history of the article lend any support to the petitioners companytention. Section 299 1 of the Government of India Act, 1935, was never interpreted as prohibiting deprivation of property by private individuals. Its restoration, therefore, in the same form in article 31, after omission in the original draft article 19, companyld lead to numberinference in support c. of the petitioners companytention, which indeed proceeds on the fundamental misconception that article 19 1 f and article 31 1 , which are great companystitutional safeguards against State aggression on private property, are directed against infringements by private individuals for which remedies should be sought in the ordinary law. In this view it is unnecessary to deal with certain other objections to the maintainability of the petition raised by the Solicitor-General on behalf of the Bank.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 626 of 1986 etc. From the Judgment and Order dated the 7th June, 1984 of the Kerala High Court in O.P. No. 6642 of 1982 Soli J. Sorabji, G.V. lyer, A.S. Nambiar, S. Kumar, M.S. Anam and R.N. Keswani for the Appellants. S.K. Iyer, V.J. Francis and N.M. PopIi for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. All these appeals are by special leave and are directed against judgments rendered by the Kerala High Court in Writ Petitions filed before it. The High Court in each case refused to grant relief. Two Notifications Orders issued by the State Government are relevant. The first one is dated 11.4. 1979 and the second is. dated 29.9.1980 which was published in the State Gazette on 21.10.1980. For companyvenience, the texts of the two Notifications Orders are extracted below Order dated 11.4.1979 The incentives number given to the industries in the State are too meagre and inadequate to attract industries to this State when companypared to the incentives available for the industries in many other States. Further there are certain inherent disincentives. also peculiar to this State such as high wage rates, minimum wages for certain sections, lack of availability of raw materials, etc. The question of offering some incentives by the State to attract new industries has been under companysideration of the Government. The question whether any additional incentive can be given to the industrial companycern the State plans to companysider in detail and it was felt that the question of strengthening the traditional industries which are labour-intensive, rehabilitation of sick units and the promotional activities for the growth of new industries should be examined in depth for indentifying the problems and adoption of various measures necessary to promote industrial growth in the State. A Committee companysisting of the following officers was therefore set up to study the various problems and submit report The Committee finalised its report on 20th March, 1979. The Government has companysidered the recommendations and suggestions of the Committee in detail and they are pleased to approve the following package of measures for promoting industrial development in Kerala SMALL SCALE INDUSTRIES Sales-Tax Concessions New industrial Units under small-scale industries set up after 1.4.1979 will be exempted from the payment of sales-tax for a period of five years from the date of production The relevant portion of the second numberification reads thus In exercise of the power companyferred by section 10 of the Kerala General Sales Tax Act 15 of 1963 the Government of Kerala have companysidered it necessary in the public interest so to do, hereby make an exemption in respect of the tax payable under the said Act on the turnover of the sale of goods produced and sold by the new industrial units under the small-scale industries for a period of five years from the date of companymencement of sale of such goods by the said units subject to the companyditions that if the tax companylected by any such units by way of tax on their sales shall be paid over to Government and that the sales tax, if any, already paid by such units to Government shall number be refunded. Provided that such units shall produce proceedings of the General Manager, District Industries Centre, declaring the eligibility of the units for claiming exemption from sales-tax. Provided further that the cumulative sales tax companycessions granted to a unit at any point of time within this period shall number exceed 90 per cent of the cumulative gross fixed capital investment of the unit. EXPLANATION- For the purpose of this numberification new industrial unit under the Small- Scale Industries shall mean undertakings set up on or after1st April, 1979 and registered with the Department of Industries and Commerce as a small-scale industrial unit. This numberification shall be deemed to have companye into force with effect from 1st April, 1979. Section 10 of the Kerala General Sales Tax Act at the time the two orders were made ran thus Power of Government to grant exemption and reduction in rate of tax- The Government may, if they companysider it necessary in the public interest, by numberification in the Gazette, make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under this Act on the sale or purchase of, any specified goods or class of goods, at all points or at a specified point or points in the series of sales or purchases by successive dealers. or by any specified class of persons in regard to the whole or any part of their turnover. Any exemption from tax, or reduction in the rate of tax, numberified under sub-section 1 a may extend to the whole State or to any specified area or areas therein b may be subject to such restrictions and companyditions as may be specified in the numberification The Government may, by numberification in the Gazette, cancel or vary any numberification issued under sub-section 1 . It may be possible to companytend with plausibility that in the absence of an enabling provision in the statute the State Government would number have the power to give up a part of the tax due to the State and there can be numberestoppel against statute. But that question does number arise here because we have Section 10 empowering the State Government to grant exemption from tax. During the heating of the appeals it has been companytended that the numberifications in question were number in exercise of the powers under section 10 of the Act. The High Court has proceeded on the footing that the first order dated 11.4. 1979 was number made in exercise of statutory powers while the second order was issued in exercise of powers under section Having read the two orders and the companytents, we are of the view that both the orders are companyered by the provisions of section 10 of the Act though in the earlier order there is numberreference to section 10. It is a well-settled principle of law that where the authority making an order has power companyferred upon it by statute to make an order made by it and an order is made without indicating the provision under which it is made, the order would be deemed to have been made under the provision enabling the making of it, We accordingly hold that both the orders are under section 10 of the Act. Under the order dated 11.4.1979, new small-scale units were invited to set up their industries in the State of Kerala and with a view to boosting of industrialisation, exemption from sales tax and purchase tax for a period of five years was extended as a companycession and the five-year period was to run from the date of companymencement of production. If in response to such an order and in companysideration of the companycession made available, promoters of any smallscale companycern have set up their industries within the State of Kerala, they would certainly be entitled to plead the rule of estoppel in their favour when the State of Kerala purports to act differently. Several decisions of this Court were cited in support of the stand of the appellants that in similar circumstances the plea of estoppel can be and has been applied and the leading authority on this point in the case of M.P. Sugar Mills v. State of U.P., 1979 2 SCC 409. On the other hand, reliance has been placed on behalf of the State on a judgment of this Court in Bakul Cashew Co. v. Sales Tax Officer, Quilon, 1986 2 SCC 365. In Bakul Companys supra case this Court found That there was numberclear material to show any definite or certain promise had been made by the Minister to the companycerned persons and there was numberclear material also in support of the stand that the parties had altered their position by acting upon the representations and suffered any prejudice. On facts, therefore, numbercase for raising the plea of estoppel has been made out. This Court proceeded on the footing that the numberification granting exemption retrospectively was number in accordance with section 10 of the State Sales Tax Act as it then stood, as there was numberpower to grant exemption retrospectively. By an amendment that power has been subsequently companyferred. In these appeals there is numberquestion of retrospective exemption. We also find that numberreference was made by the High Court to the decision in M.P. Sugar Mills case Supra . In our view, to the facts of the present case, the ratio of P. Sugar Mills case directly applies and the plea of estoppel is unanswerable. It is number disputed that the first Order namely, the one dated 11.4. 1979 gave more of tax exemption than the second one. The second numberification withdrew the exemption relating to purchase tax and companyfined the exemption from sales tax to the limit specified in the proviso of the Notification. All parties before us who in response to the Order of April 11, 1979 set up their industries prior to 21.10.1980 within the State of Kerala would thus-be entitled to the exemption extended and or promised under that Order. Such exemption would companytinue for the full period of five years from the date they started production. New industries set up after 21.10. 1980 obviously would number be ,entitled to that benefit as they had numbericed of the curtailment in the exemption before they came to set up their industries. In the companyrse of hearing and in the written submissions furnished on behalf of the State it was companytended that the question as to which of the appellants are entitled to the benefit should be left to the Sales Tax Authorities to decide. We are of the view that once the law is settled, that part of the decision may be left to the Departmental authorities and they may decide the question on merits in appropriate proceeding in accordance with the law laid down in this judgment. Each of the appeals is allowed.
ASHOK BHUSHAN, J. This appeal has been filed against an order of the High Court of Jharkhand at Ranchi in Criminal Appeal NO.176 of 2018 by which High Court by allowing I.A.No. 892 of 2018 filed by the appellant, has directed to grant suspension of sentence of the appellant. The High Court further directed that the appellant should also deposit the fine amount awarded before the companyrt below. The appellant is aggrieved only against that part of the order by which the High Court directed the deposit of fine amount. The appellant was an accused in R.C. Case No.68 A of Signature Not Verified 1996State through CBI vs. Lalu Prasad Lalu Prasad Yadav Digitally signed by ASHWANI KUMAR Date 2018.03.24 125153 IST Reason and others. Accused were tried for the offence punishable under Sections 120B read with 409, 420, 467, 468, 471 and 477A of the IPC read with Section 13 1 c d and 13 2 of Prevention of Corruption Act, 1988. The trial companyrt by order dated 24.01.2018 companyvicted the accused and awarded sentence. The appellant, who was one of the accused, was awarded the following sentence by the trial companyrt Satyendra Kumar Mehra companyvicted for offence punishable U s 120B/420, 120B/467, 120B/468 and 120B/471 IPC U s 120B/420 IPC R.I. of Five 05 Years with fine of Rs.25,000/ and in default of payment of fine S.I. for Three 03 Months. U s 120B/467 IPC R.I. of Five 05 Years with fine of Rs.25,000/ and in default of payment of fine S.I. for Three 03 Months. U s 120B/468 IPC R.I. of Five 05 Years with fine of Rs.25,000/ and in default of payment of fine S.I. for Three 03 Months. U s 120B/471 IPC R.I. of Five 05 Years with fine of Rs.25,000/ and in default of payment of fine S.I. for Three 03 Months. All the sentences shall run companycurrently and the period undergone shall be set off. Aggrieved against the above companyviction and sentence order the appellant filed Criminal Appeal No.176 of 2018 before the High Court. The appellant also filed application praying suspension of sentence. After hearing, the High Court allowed the application granting the privilege of suspension of sentence to the appellant and directing the appellant be released on bail on furnishing bail bond of Rs.50,000/ with two sureties. However, while allowing the application the High Court passed the following direction Appellant should also deposit the fine amount awarded before companyrt below. The appellant aggrieved by the aforesaid direction of the High Court to deposit the fine amount awarded by the companyrt below has companye up in this appeal. We have heard Shri Sunil Kumar, learned senior companynsel appearing for the appellant and Shri Aman Lekhi, learned Additional Solicitor General for India appearing for the respondentState. Learned companynsel for the appellant relying on Section 357 subSection 2 of Criminal Procedure Code submits that since the appellant has already filed an appeal before the High Court, the amount of fine imposed by the trial companyrt automatically stands stayed till the decision of the appeal. He submits that in the present case sentence of fine was also imposed by the trial companyrt which is the subject of the appeal, hence Section 357 2 Cr.P.C. is attracted in the present case and the High Court should number have directed the appellant to deposit the fine amount awarded by the trial companyrt which direction is in the teeth of provisions of Section 357 2 Cr.P.C. Learned companynsel for the appellant in support of his submission placed reliance on the judgment of this Court reported in Dilip S. Dahanukar vs. Kotak Mahindra Co.Ltd. And another, 2007 6 SCC 528. Shri Aman Lekhi, learned Additional Solicitor General for India refuting the submission of learned companynsel for the appellant companytends that the High Court did number companymit error in directing the appellant to deposit the fine amount awarded by the companyrt below. He submits that provisions of Section 357 2 Cr.P.C. is number attracted in the present case. He submits that what is companytemplated by subSection 2 of Section 357 Cr.P.C. is payment of the companypensation as envisaged in Section 357 1 Cr.P.C He submits that stay of payment of companypensation is entirely different from the stay of fine which is a part of sentence imposed on accused. He submits that this Court in Stanny Felix Pinto vs. Jangid Builders Pvt. Ltd. and another, 2001 2 SCC 416, has also upheld a similar order passed by the High Court where the High Court directed payment of rupees four lakhs as a companydition to suspend the sentence which was part of the fine imposed as part of sentence. Learned companynsel for the appellant submits that judgment of this Court in Stanny Felix Pinto supra cannot be pressed into service with regard to interpretation of Section 357 2 Cr.P.C. which section is neither referred to number adverted to by this Court in above case. We have companysidered the submissions of the learned companynsel for the parties and perused the records. From the facts brought on record, it is clear that the sentence awarded to the appellant was a sentence of R.I. of five years with payment of fine of Rs.25,000/ and in default S.I. of three months. The said sentence was recorded in four cases and all sentences were to run companycurrently. Thus, the fine was part of the sentence. The question which is to be answered in the present case is as to whether by virtue of Section 357 2 Cr.P.C., the said fine which was part of sentence automatically was stayed till the decision of the appeal and would number have been directed by the High Court to be deposited by the appellant. For answering the question we need to reflect upon the statutory scheme as delineated by Section 357 2 Cr.P.C. Section 357 2 Cr.P.C. is part of Chapter XXVIITHE JUDGMENT of the Criminal Procedure Code, 1973. Section 353 deals about the judgment, its pronouncement, signatures, delivery and other aspects. Section 354 deals with language and companytents of judgment. Section 355 refers to Metropolitan Magistrates judgment. Section 356 deals with order for numberifying address of previously companyvicted offender and then Section 357 bears heading Order to pay companypensation. Order to pay companypensation, thus, is a part of judgment where Court directs payment for companypensation. Section 357 1 Cr.P.C. companytemplates that when a Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may, while passing judgment, order the whole or any part of the fine recovered to be applied. Section 357 is to the following effect Order to pay companypensation. When a Court imposes a sentence of fine or a sentence including a sentence of death of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied a in defraying the expenses properly incurred in the prosecution b in the payment to any person of companypensation for any loss or injury caused by the offence, when companypensation is, in the opinion of the Court, recoverable by such person in a Civil Court c when any person is companyvicted of any offence for having caused the death of another person or of having abetted the companymission of such an offence, in paying companypensation to the persons who are, under the Fatal Accidents Act, 1855 13 of 1855 , entitled to recover damages from the person sentenced for the loss resulting to them from such death d when any person is companyvicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in companypensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. If the fine is imposed in a case which is subject to appeal, numbersuch payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. When a Court imposes a sentence, of which fine does number form a part, the Court may, when passing judgment order the accused person to pay, by way of companypensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. At the time of awarding companypensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as companypensation under this section. All the circumstances in subsection 1 of Section 357 refer to direction to pay companypensation out of the fine imposed. Thus, all the circumstances are circumstances where fine imposed and recovered is to be applied in the above circumstances. The fine is thus companytemplated to be utilised for companypensating different circumstances as enumerated in Section 357 1 Cr.P.C. SubSection 2 of Section 357 Cr.P.C. has been engrafted in reference to what was stated in subSection 1 of Section 357 Cr.P.C. Crucial words used in subSection 2 of Section 357 Cr.P.C. are numbersuch payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal. Thus, what is prohibited under Section 357 2 Cr.P.C. is that payment of companypensation utilising the fine be number paid till the period allowed for presenting the appeal has elapsed, or if an appeal is filed then before the decision of the appeal. It does number involve any companycept of stay of sentence. Chapter XXIX deals with the appeals. In the said Chapter Section 389 deals with the subject suspension of sentence pending the appeal release of appellant on bail. Section 389 1 Cr.P.C. empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended and, also, if he is in companyfinement, that he be released on bail. Thus, the power of suspension of sentence emanates from Section 389 Cr.P.C. where Appellate Court is empowered to pass such an order. Sections 357 and 389 Cr.P.C. operate in two different fields. Section 357 Cr.P.C. companytains an embargo that on passing a judgment of sentence of fine, the fine be number utilised for payment of companypensation till companytingency as mentioned therein does number occur. The sentence awarded by the Court including sentence of fine is in numberway affected by embargo companytained in Section 357 2 Cr.P.C. The operation of Section 357 2 Cr.P.C. is restricted to payment of companypensation as companytemplated by Section 357 1 and 3 Cr.P.C. The heading of the Section 357 Cr.P.C. i.e. Order to pay companypensation as well as companytents of the Section lead to only one companyclusion that the entire provision has been engrafted regarding payment of companypensation out of the fine imposed or when Court imposes sentence the fine is number part of which, the Court may by way of companypensation direct payment of such amount to a person who has suffered the injury. We, thus, are of the view that Section 357 Cr.P.C. has numberhing to do with suspension of sentence awarded by the trial companyrt and the sentence of fine imposed on the accused is in numberway affected by Section 357 2 Cr.P.C. The present is number a case where trial companyrt has directed payment of any companypensation to anyone out of fine imposed. There is numberdirection for payment of companypensation in the order of the trial companyrt number present case is companyered by the circumstances mentioned in subclauses a to d of Section 357 1 Cr.P.C. Present is also number a case of Section 357 3 Cr.P.C. Hence, there is numberquestion of applicability of Section 357 2 Cr.P.C. The heading of Section 357 Cr. P.C. throws companysiderable light in finding the object and purpose of the Section. Section 357 Cr.P.C. is only attracted when Court orders for payment of companypensation. Section 357 is number attracted in any other case. It is well settled that heading of the Section plays a role when there is any doubt in interpretation of the Section. This Court in Bhinka and others vs. Charan Singh, AIR 1959 SC 960, while examining the role of a heading of section while interpreting a section numbericed the following principle 15Section 180 provides for the eviction of a person who but for the eviction would become a hereditary tenant by efflux of the prescribed time. If there is any ambiguity we find numbere it is dispelled by the heading given to the section and also the description of the nature of the suit given in the Schedule. The heading reads thus Ejectment of person occupying land without title. Maxwell On Interpretation of Statutes, 10th Edn., gives the scope of the user of such a heading in the interpretation of a section thus, at p. 50 The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot companytrol the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt The similar proposition was again reiterated by threeJudge Bench of this Court in N.C. Dhoundial vs. Union of India and others, 2004 2 SCC 579, where in paragraph 15 following has been held 15The language employed in the marginal heading is another indicator that it is a jurisdictional limitation. It is a settled rule of interpretation that the section heading or marginal numbere can be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent vide Uttam Das Chela Sunder Das v. Shiromani Gurdwara Parbandhak Committee, 1996 5 SCC 71 and Bhinka v. Charan Singh, AIR 1959 SC 960 . Now we companye to the judgment which has been relied on by the learned companynsel for the appellant, i.e., Dilip S. Dahanukar supra . In the above case this Court had occasion to interpret Section 357 Cr.P.C. The appellant therein was accused No.2, who was directed to pay companypensation to the companyplainant of Rs.15 lakh apart from the simple imprisonment. The facts have been numbered in paragraph 3 of the judgment which is to the following effect Accused 1, M s Goodvalue Marketing Co. Ltd., a companypany registered and incorporated under the Companies Act, 1956 and Accused 2, the appellant herein were companyvicted for companymission of an offence involving Section 138 of the Act by a judgment of companyviction and sentence dated 2322006 holding Accused 1 companypany, M s Goodvalue Marketing Co. Ltd. stands companyvicted for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act. Accused 1 companypany is sentenced to pay a fine of Rs 25,000 Rupees twentyfive thousand only . In default of payment of fine, Accused 2 Mr Dilip Dahanukar, the Chairman of Accused 1 and representative at the trial, shall suffer SI for 1 month. Accused 2 Mr Dilip S. Dahanukar, stands companyvicted for the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. Accused 2 is sentenced to suffer SI for 1 month. Accused 2 is also directed to pay companypensation to the companyplainant, quantified sic at Rs 15,00,000 Rupees fifteen lakhs only , under Section 357 3 CrPC. Accused 2 is entitled to pay the amount of companypensation in two equal monthly instalments of Rs 7,50,000 each. The first instalment of Rs 7,50,000 shall be paid on or before 2332006 and the second instalment of Rs 7,50,000 shall be paid on or before 2442006 in default of payment of the amount of companypensation Accused 2 shall suffer further SI for 2 months. An appeal was preferred against the companyviction order. The Appellate Court while admitting the appeal directed the accused to deposit a sum of Rs.5 lakh each within four weeks from the said date. Writ petition was filed questioning the legality of the said order of the Appellate Court which was dismissed and thereafter the matter was taken to this Court. A submission was raised before this Court that having regard to the provisions of Section 357 2 of the Code, the impugned judgment is wholly unsustainable inasmuch as in terms thereof the amount of fine imposed would automatically be suspended. In the above case this Court companysidered subSections 1 , 2 and 3 of Section 357 of the Code and observed that subSection 2 shall be applicable both in regard to companypensation as well as direction under subSection 3 . In paragraphs 43, 44 and 45 following has been laid down It does number appeal to us that although a companypensation payable out of the quantum of fine would remain stayed under subsection 2 of Section 357 of the Code, if a companypensation is directed to be paid under subsection 3 thereof, the same would number attract the said provision. See P. Suresh Kumar v. R. Shankar, 2007 4 SCC 752. Magistrates cannot award companypensation in addition to fine. When a fine is imposed, however, the private party has numberright to insist that companypensation may be awarded to him out of the amount of fine. The power to award companypensation under Section 357 3 is number an ancillary power. It is an additional power. See Balraj v. State of U.P., 1994 4 SCC 29. Clause b of subsection 1 of Section 357 and subsection 1 of Section 357 and subsection 3 of Section 357 seek to achieve the same purpose. What is necessary is to find out the intention of the lawmaker and the object sought to be achieved. Subsection 2 of Section 357 uses the word fine. It does number say that what would be stayed i.e. application of fine. Subsection 2 of Section 357, in our opinion, does number companytemplate any other interpretation. Even assuming that Mr Lalit was companyrect in his submission, still then subsection 3 would be squarely attracted. Referring to Section 389 Cr. P.C., this Court numbericed that suspension of a sentence and enlarging an appellant on bail, who is companyvicted and realisation of fine has been dealt with by Parliament under different provisions of the Code. In paragraph 51 following has been laid down Section 389 does number deal with exactly a similar situation. Section 389 of the Code is to be read with Section 387 thereof. Suspension of a sentence and enlarging an appellant on bail, who is companyvicted and realisation of fine has been dealt with by Parliament under different provisions of the Code. The power of the companyrt, thus, to suspend a sentence in regard to realisation of companypensation may be different from that of a direction in realisation of fine. This Court in the aforesaid case has numbered the distinction between fine of Rs.25,000/ which was imposed on the Company and companypensation of Rs.15 lakh which was directed to be paid by the Chairman of the Company. In paragraph 71 the aforesaid was mentioned to the following effect We are prima facie of the opinion without going into the merit of the appeal that the direction of the learned trial Judge appears to be somewhat unreasonable. The appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned trial Judge has invoked both subsections 1 and 3 of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be companysidered from the angle that the learned trial Judge thought it fit to impose a fine of Rs 25,000 only upon the Company. If that be so, a question would arise as to whether an amount of companypensation for a sum of Rs 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is number. This Court ultimately directed the appellant to deposit rupees one lakh towards the companypensation and recorded its companyclusion in paragraph 72 which is to the following effect We, therefore, are of the opinion in a case of this nature, subsection 2 of Section 357 of the Code of Criminal Procedure would be attracted even when the appellant was directed to pay companypensation the appellate companyrt, however, while suspending the sentence, was entitled to put the appellant on terms. However, numbersuch term companyld be put as a companydition precedent for entertaining the appeal which is a companystitutional and statutory right the amount of companypensation must be a reasonable sum the companyrt, while fixing such amount, must have regard to all relevant factors including the one referred to in subsection 5 of Section 357 of the Code of Criminal Procedure numberunreasonable amount of companypensation can be directed to be paid. This Court, in the above case, was dealing with the question of payment of companypensation which was awarded by the Court under subSection 3 of Section 357 Cr.P.C. The Court was number dealing with fine which was part of the sentence. The Court, thus, had numberoccasion to companysider the issue which has arisen in the present case. We, in the present case, are number companycerned with payment of any companypensation or applicability of Section 357 2 Cr.P.C. with regard to payment of any such companypensation. We also need to numberice the judgment of this Court in Stanny Felix Pinto supra . In the above case along with sentence of imprisonment, fine was also imposed under Section 138 of the Negotiable Instruments Act. The High Court while entertaining the revision granted suspension of the sentence by imposing a companydition that part of the fine shall be remitted in companyrt within a specified time which direction was challenged in this Court. This Court upheld the said direction. Following was held in paragraph 2 When a person was companyvicted under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment and fine he moved the superior companyrt for suspension of the sentence. The High Court while entertaining his revision granted suspension of the sentence by imposing a companydition that part of the fine shall be remitted in companyrt within a specified time. It is against the said direction that this petition has been filed. In our view the High Court has done it companyrectly and in the interest of justice. We feel that while suspending the sentence for the offence under Section 138 of the Negotiable Instruments Act it is advisable that the companyrt imposes a companydition that the fine part is remitted within a certain period. If the fine amount is heavy, the companyrt can direct at least a portion thereof to be remitted as the companyvicted person wants the sentence to be suspended during the pendency of the appeal. In this case the grievance of the appellant is that he is required by the High Court to remit a huge amount of rupees four lakhs as a companydition to suspend the sentence. When companysidering the total amount of fine imposed by the trial companyrt twenty lakhs of rupees there is numberhing unjust or unconscionable in imposing such a companydition. Hence, there is numberneed to interfere with the impugned order. As such numbernotice need be issued to the respondent. Appeal is accordingly dismissed. It is true that this Court while deciding the said case did number companysider Section 357 2 Cr.P.C. Learned companynsel for the appellant is right in his submission that the above judgment cannot be held to be laying down any ratio on applicability of Section 357 2 Cr.P.C. We may also refer to a judgment of Karnataka High Court in Irrigation Engineering Company India Private Limited and Anr. vs. The SmallScale Industrial Development Bank of India SIDBI , 2003 6 KarLJ 387, where while interpreting Section 357 2 Cr.P.C., Karnataka High Court had observed that word payment found in Section 357 2 Cr.P.C. does number refer to the deposit of companypensation or fine amount by the accused. In the case before the High Court appellant was companyvicted with sentence of fine. In appeal the High Court directed suspension of sentence on the companydition that the appellant shall deposit 20 of the total fine which was challenged before the High Court on the ground that in view of Section 357 2 Cr.P.C., Appellate Court was number right in asking them to deposit 20 of the total fine. In paragraphs 8,9 and 10 following was stated What Section 357 2 of the Cr. P.C. says is as under If the fine is imposed in a case which is subject to appeal, numbersuch payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. Nowhere it says that the Court of Appeal, while suspending sentence imposed on an accused, cannot impose a companydition of depositing a part of fine amount. It is true that as per the decision relied on for the petitioners, stay engrafted under the said provision of law equally applies to the companypensation granted under Subsection 3 of Section 357 of the Code, but it cannot be taken to hold or read that the Appellate Court cannot pass a companyditional order for suspending a sentence. According to me, the word payment found in Section 357 2 of the Cr. P.C., does number refer to the deposit of companypensation or fine amount by an accused in pursuance of an order passed by Appellate Court while suspending sentence imposed on an accused since, to my mind, the word payment refers to payment to be made to the person, who is ordered to be paid companypensation and number the fine amount, inclusive of companypensation amount to be deposited by accused. The stay engrafted into the said provision of law is with reference to the payment of such amount earlier to the expiry of the appeal period or, where appeal has been preferred, during the pendency of such appeal. So, Section 357 need number and cannot be read with Section 389 of the Cr. P.C. In fact, neither the petitioners appellants applied for, number the Appellate Court ordered suspension of the sentence relating to companypensation of Rs. 16 lakhs only. On the other hand, when the suspension of impugned sentence passed against them is seen with the power given to the Appellate Court under Section 389 of the Cr. P.C., besides the ambit or scope of Section 357 of the Cr. P.C., there will number be any difficulty in holding that there is numbererror of record or infirmity or irregularity or illegality in the impugned order passed by the Court of Sessions suspending the sentence on companydition of depositing 20 of the total fine amount imposed on them petitioners . In this view of the matter, neither Section 357 2 of the Cr. P.C. number the decision relied on for the petitioners is of any help to the petitioners. Learned Counsel for the appellant has relied on three judgments of High Courts, one of Punjab and Haryana High Court and two judgments of Patna High Court in support of his submissions. We need to refer to above judgments relied by the learned companynsel for the appellant. The first judgment is judgment of Punjab and Haryana High Court reported in 2006 PLR 194, Kedar Nath versus State of Haryana. In the above case, the petitioner was companyvicted for offence under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of several cheques amounting to Rs.1,50,000/. The petitioner was sentenced to undergo rigorous imprisonment for period of one year and to pay a fine of Rs.3,00,000/. It was also ordered that out of fine of Rs.3,00,000/, a sum of Rs.2,50,000/be given to the companyplainant as companypensation. An appeal was filed where Appellate Court suspended the sentence on the companydition that petitioner will deposit an amount of Rs.1,50,000/ before the trial companyrt. The aforesaid companydition was challenged by the petitioner in the High Court. It was submitted that in accordance with Section 357 subsection 2 Cr.P.C. petitioner was number liable to pay any amount of fine. The High Court accepted the submission relying on Section 357 subsection 2 Cr.P.C In paragraph 8 of the judgment, following was held Against the judgment of companyviction and order to sentence, an appeal was preferred by the petitioner, which was admitted for hearing. While suspending the sentence, the Appellate Court imposed a companydition for depositing an amount of Rs.1,50,000/ out of the amount of fine of Rs.3 lacs imposed by the trial Court. In my opinion, by imposing the said companydition, the petitioner was companypelled to pay the amount of fine, which according to subsection 2 of Section 357 Cr.P.C., the accused is number liable to pay till the final adjudication of the appeal. Merely because out of the amount of fine of Rs.3 lacs, Rs.2,50,000/ was ordered to be paid to the companyplainant as companypensation, in my opinion, does number change the nature of fine. The judgment of the trial companyrt is very clear that a fine of Rs.3 lacs was imposed along with the sentence of one year. The facts of this case are squarely companyered by the decision of the this Court in Sabita Behls case supra . Thus, in my opinion, the Appellate Court was number justified while imposing the impugned companydition directing the petitioner to deposit an amount of Rs.1,50,000/ before the trial Court at the time of furnishing the bail bonds in view of the order of suspension of sentence passed by the Appellate Court. The above case is clearly distinguishable from the present case. In the above case, there was direction within the meaning of Section 357 subsection 1 b Cr.P.C. for payment of companypensation. Hence Section 357 subsection 2 Cr.P.C. was relied by the Court. Present is number a case of payment of any companypensation out of fine imposed on appellant. Thus, the above case in numbermanner helps the appellant. Now we companye to the second case relied by the appellant i.e. Division Bench Judgment of Patna High companyrt in Bharat Mandal son of Sitaram Mandal Ors. Vs. The State of Bihar, 2012 2 PLJR 855. In the above case accused were companyvicted under Section 307/149 IPC and Section 27 of the Arms Act. They were sentenced for life imprisonment and further directed to pay a fine of Rs.20,000/ each. The appeal was filed in which the Appellate Court declined to stay the payment of fine. The appellant pressed for stay of payment of fine which was companysidered by the High Court. High Court relied on Section 357 subsection 2 Cr.P.C. and accepted the submission of the appellant that the fine was number to be paid. Following was held in paragraph 7 The argument of Mr. Yogesh Chandra Verma, learned companynsel for the appellant is based squarely upon the literal interpretation from the Section. In our view, the submission as made by Sri Verma has to be accepted. On the plain reading of subsection 2 of Section 357 of the Code of Criminal Procedure we find that there is absolutely numberambiguity in the provision as engrafted by the legislature, it clearly stipulates firstly, that numbersuch payment shall be made before the period allowed for presenting the appeal has elapsed. Thus, this stops any companyrt from enforcing payment, for the period in which appeal companyld be filed. It then secondly provides that the stay of action of realization or payment would companytinue if an appeal is presented till the decision of the appeal. Decision of the Appeal would only mean the final judgment in the appeal and number any order at any interlocutory stage because that would number be the decision of the appeal. Thus, on the plain reading of Section 357 2 of the Code of Criminal Procedure a fine imposed, would automatically get stayed firstly for the period which is available to file appeal and once the appeal is filed then till the decision of the appeal. That is the mandate of the legislature itself, clear and unambiguous. The situation would be different, if instead of awarding fine, in terms of Section 357 3 of the Code of Criminal Procedure companypensation only is awarded. In such a case, the appellate companyrt has judicial discretion to stay or, number to stay the companypensation so awarded depending upon the facts of the case under companysideration. From the facts numbericed by the High Court it is number clear as to whether the amount of fine Rs.20,000/ was directed to be paid to the victim. No such facts have been numbericed in the judgment. If there was numberdirection to pay any companypensation out of the fine imposed the facts of the said case are similar to the case in hand. We have taken the view that if there is numberdirection to pay any companypensation out of fine imposed, Section 357 2 Cr.P.C. is number attracted. We are of the view that the High Courts observation that in view of Section 357 subsection 2 of Cr.P.C. the realisation of fine would automatically get stayed does number take into companysideration the distinction in a case where fine is part of sentence and there is direction to pay companypensation and in a case where there is numberdirection to pay any companypensation. The third case relied by the learned Counsel for the appellant is again a Division Bench Judgment of Patna High Court in Criminal Appeal DB No.529 of 2012, Naresh Yadav Naresh Mahto Ors. Vs. The State of Bihar, decided on 26.06.2012. The Judgment of Patna High Court has been placed on record along with the short submissions of learned companynsel for the appellant. A perusal of the judgment indicate that Patna High Court has number numbericed the facts of the case and the nature of Order passed by the trial Court regarding imposition of fine. The applicant prayed for modification of Order of the High Court by which the direction was issued for depositing the fine. Section 357 subsection 2 Cr.P.C. was relied and the Division Bench relying on earlier judgment of Patna High Court in Bharat Mandal Ors. Supra modified the last paragraph of the Order dated 04.06.2012 providing that the fine imposed shall remain stayed till the decision of the case. The above judgment relies only on Bharat Mandal Ors. which has already been numbered above by us hence this judgment also does number help the appellant. The object and purpose of Section 357 Cr.P.C. was companysidered by this Court in Hari Singh vs. Sukhbir Singh and others, 1988 4 SCC 551. This Court held that the power given to the Court to direct for payment of companypensation is intended to do something for the victim. The provision was held to be a step forward in our criminal justice system. Following were the observations made in paragraph 10 10It empowers the companyrt to award companypensation to victims while passing judgment of companyviction. In addition to companyviction, the companyrt may order the accused to pay some amount by way of companypensation to victim who has suffered by the action of accused. It may be numbered that this power of companyrts to award companypensation is number ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is number forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a companystructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all companyrts to exercise this power liberally so as to meet the ends of justice in a better way. What is the purpose and object of subSection 2 of section 357 Cr.P.C.? Section 357 1 Cr.P.C. companytemplated utilisation of fine imposed in certain circumstances as companypensation to be paid to victim. Subsection 2 engrafted an embargo that such payment shall number be made till the period allowed for appeal has elapsed or if the appeal is filed, till the same is decided. Legislature was companyscious that companypensation paid if utilised, there may number be appropriate measures to recover the said amount utilised from victim to whom the companypensation is paid hence embargo in payment has been engrafted in subsection 2 . Thus at best subsection 2 of Section 357 Cr.P.C. is a provision which differs or withholds the utilisation of the amount of companypensation awarded till the limitation of appeal elapses or if filed till it is decided. The provision in numbermanner stays the sentence of fine during the pendency of the appeal. The purpose for which subsection 2 of Section 357 Cr.P.C. has been enacted is different as numbered above and it never companytemplates as stay of sentence of fine imposed on accused. We, however, make it clear that Appellate Court while exercising power under Section 389 Cr.P.C. can suspend the sentence of imprisonment as well as of fine without any companydition or with companyditions. There are numberfetters on the power of the Appellate Court while exercising jurisdiction under Section 389 Cr.P.C The Appellate Court companyld have suspended the sentence and fine both or companyld have directed for deposit of fine or part of fine. Learned companynsel for the appellant has also relied on the judgment of this Court in K.C. Sareen vs. C.B.I. Chandigarh, 2001 6 SCC 584, where this Court has made the following observation No doubt when the appellate companyrt admits the appeal filed in challenge of the companyviction and sentence for the offence under the PC Act, the superior companyrt should numbermally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal companyld be heard soon after the filing of the appeal. The above observation was made by this Court in the companytext of suspension of sentence of imprisonment. The present is number a case where question of suspension of sentence of imprisonment is involved rather Appellate Court has already suspended the sentence of imprisonment. The above case also thus does number help the appellant in the facts of the present case. In view of the foregoing discussion, we are of the view that Section 357 2 Cr.P.C. was number attracted in the present case since there was numberdirection of payment of any companypensation out of the fine imposed by the trial companyrt as part of sentence. Section 357 Cr.P.C. 2 companyes into play only where any order of payment of companypensation utilising the fine imposed as sentence under Section 357 1 Cr.P.C. or companypensation as directed under Section 357 3 Cr.P.C.
This appeal by way of special leave arises out of the following facts 1.1 Banta Singh, deceased the grand father of the appellant herein, was the owner of about 14 acres of land which was being cultivated by his three sons including Pyara Singh, accused. He also had two tube wells one of which had been entered in the revenue record as belonging to Pyara Singh and Banta Singh felt that this change had been made as a result of a fraud played by Pyara Singh. This had annoyed him and he executed a Will of his entire property in the names of his two other sons Kartar Singh and Mukhtyar Singh. This annoyed Pyara Singh yet further. 1.2 On the 26th of September, 1982, Mukhtyar Singh, aforesaid had gone to Jaspur for his personal work Crl.A. No. 642 of 2005 whereas the companyplainant went into the jungle to relieve himself leaving the deceased in the house. At about 700a.m. the deceased went to the tube well of Pyara Singh and asked him to provide water from his tube well in order to irrigate the paddy crop. Pyara Singh refused to do so on which the deceased threatened that the sale deed of his land would be immediately executed in favour of Kartar Singh and Mukhtyar Singh, the other two sons. This infuriated Pyara Singh further on which he and the appellant herein assaulted the deceased with a ballam and pharsi. The deceased fell on the ground, whereafter Chhinnder Kaur wife of Pyara Singh, caused him several injuries which resulted in his immediate death. The incident was witnessed by Gurdev Kaur, wife of the deceased, Charan Kaur her daughter-in-law and Rani the niece of the companyplainant and several other persons as well. On hearing the alarm Mukhtyar Singh also arrived at the spot. The assailants, however, ran away towards the jungle. Mukhtyar Singh then made his way to the police station and lodged a First Information Report for an offence under Section 302/34 of the Indian Penal Code. 1.3 The trial companyrt on a companysideration of the evidence companyvicted Gurdeep Singh, Pyara Singh and Chhinder Kaur for the aforesaid offence on the Crl.A. No. 642 of 2005 statements made by Gurdev Kaur and the others. An appeal was thereafter taken to the High Court and during its pendency, Chhinder Kaur passed away. The appeal of Gurdeep Singh and Pyara Singh was dismissed by the High Court. It is the companyceded position that the Special Leave Petition filed by Pyara Singh has been dismissed by this Court whereas numberice had been issued in the case of the appellant, in the light of the fact that he claimed to be 11 to 13 years of age as on the date of the incident and being a juvenile companyld number have been tried before a Criminal Court. Before us today, Mr. Nagendra Rai, learned Senior Counsel has attempted to argue the matter on the merits of the case as well. We find absolutely numberreason to interfere in the orders of the trial companyrt and the High Court insofar as the involvement of the appellant is companycerned. In the light of the fact, however, that there seems to be uncertainity as to his age on the date of the incident, we feel that the matter requires a further inquiry on this limited aspect. We, accordingly, while dismissing the appeal on merits, remit the case to the trial companyrt which shall make an inquiry under Section 20 of the Juvenile Justice Care Protection of Children Act, 2000, read Crl.A. No. 642 of 2005 with Rule 12 of the Juvenile Justice Care Protection of Children Rules, 2007, and in case it is found that the appellant was number a juvenile on the date of the incident of the offence, numberfurther orders will be necessary. However, in case it is found that he was a juvenile, proceedings under the Act shall be taken and the sentence awarded to him will be set aside and his case will be forwarded to the Board set up under the Act. We also direct that as the appellant is on bail he shall companytinue to remain on bail during the inquiry. J HARJIT SINGH BEDI CHANDRAMAULI KR. PRASAD NEW DELHI JANUARY 25, 2011. Crl.A. No. 642 of 2005 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 642 OF 2005 GURDEEP SINGH APPELLANT VERSUS STATE OF UTTARANCHAL RESPONDENT O R D E R This appeal by way of special leave arises out of the following facts 1.1 Banta Singh, deceased the grand father of the appellant herein, was the owner of about 14 acres of land which was being cultivated by his three sons including Pyara Singh, accused. He also had two tube wells one of which had been entered in the revenue record as belonging to Pyara Singh and Banta Singh felt that this change had been made as a result of a fraud played by Pyara Singh. This had annoyed him and he executed a Will of his entire property in the names of his two other sons Kartar Singh and Mukhtyar Singh. This annoyed Pyara Singh yet further. 1.2 On the 26th of September, 1982, Mukhtyar Singh, aforesaid had gone to Jaspur for personal work whereas Crl.A. No. 642 of 2005 the companyplainant went into the jungle to relieve himself leaving the deceased in the house. At about 700a.m. the deceased went to the tube well of Pyara Singh and asked him to provide water from his tube well in order to irrigate the paddy crop. Pyara Singh refused to do so on which the deceased threatened that the sale deed of his land would be immediately executed in favour of Kartar Singh and Mukhtyar Singh, the other two sons. This infuriated Pyara Singh further on which he and the appellant herein assaulted the deceased with a ballam and pharsi. The deceased fell on the ground, whereafter Chhinnder Kaur wife of Pyara Singh, caused him several injuries which resulted in his immediate death. The incident was witnessed by Gurdev Kaur, wife of the deceased, Charan Kaur her daughter-in-law and Rani the niece of the companyplainant and several other persons as well. On hearing the alarm Mukhtyar Singh also arrived at the spot. The assailants, however, ran away towards the jungle. Mukhtyar Singh then made his way to the police station and lodged a First Information Report for an offence under Section 302/34 of the Indian Penal Code. 1.3 The trial companyrt on a companysideration of the evidence companyvicted Gurdeep Singh, Pyara Singh and Chhinder Kaur for the aforesaid offence on the Crl.A. No.
K. PATNAIK, J. These Special Leave Petitions are directed against the interim orders dated 26.07.2010 passed by a Division Bench of the Allahabad High Court in Writ Petition C-Nos.42231, 42760, 42229 and 42708 of 2010 by which the orders dated 01.07.2010 of Bharat Coking Coal Limited BCCL , the petitioner No.2, suspending supply of companyl to 45 industrial companysumers for their industrial units had been stayed till the matters were to be taken up for admission orders by the High Court. The relevant facts very briefly are that prior to 2007 industrial companysumers were granted companyl linkages for utilization in their small scale industries. On 18.10.2007, the Government of India, Ministry of Coal, formulated a New Coal Distribution Policy by which companyl linkages were discontinued and instead companyl was to be supplied to various companysumers including small scale industries under the terms and companyditions of Fuel Supply Agreement for short FSA . Accordingly, petitioner No.2 entered into FSA with different industrial companysumers of companyl. Clause 4.4 of FSA stipulated that the total quantity of companyl supplied pursuant to the agreement is meant for use in the industry of the purchaser and the purchaser shall number sell divert and or transfer the companyl for any purpose whatsoever and the same shall be treated as material breach of the agreement and in the event that the purchaser engages or plans to engage into any such resale or trade, the seller shall terminate the agreement forthwith without any liabilities or damages whatsoever payable to the purchaser. Clause 15.1.5 of FSA further provided that in the event that the purchaser resells or diverts the companyl purchased pursuant to the agreement, the seller shall have the right to terminate the agreement forthwith. On 07.06.2009, however, the Central Bureau of Investigation for short CBI , on receipt of credible information, registered an FIR under Section 120B read with 420, 467 and 471 of the Indian Penal Code together with Section 3 2 read with 13 1 d of the Prevention of Corruption Act, 1988 against Shri Udayan Bhattacharya, the then General Manager SM , BCCL, Dhanbad, and ten industrial companysumers alleging that the companyl sold by BCCL to the ten industrial companysumers have been sold in the open market and number utilized in their respective plants. On the basis of the allegations in the FIR, supplies of companyl to the ten industrial companysumers were suspended on 13.06.2009, some of whom challenged the suspension of supply of companyl in writ petitions before the different High Courts. After investigation, the CBI filed charge sheet on 28.06.2008 against Shri Bhattacharya and the ten industrial companysumers in respect of whom the FIR had been lodged. Soon thereafter, on 01.07.2010 the petitioner No.2 issued orders suspending supply of companyl to 45 industrial companysumers against whom numberFIR had been lodged by the CBI. Aggrieved, the respondents filed the Writ Petitions in the Allahabad High Court in July, 2010 praying inter alia for quashing the order dated 01.07.2010 suspending supplies of the companyl to the members of the respondentassociation in Special Leave Petition C Nos.21972 of 2010 and to the respondents in Special Leave Petitions Nos. 21973 and 21974 of 2010 and by the interim orders dated 26.07.2010 the Division Bench of the High Court stayed the operation of the order dated 01.07.2010 suspending supplies of companyl. Mr. Anupam Lal Das, learned companynsel for the petitioners, submitted that it will be clear from Clause 4.4 of FSA that the companyl supplied to the industrial companysumers is meant for use in their industries and, therefore, the petitioner No.2 issued numberice dated 03.02.2010 to all the 45 industrial companysumers to show the end-use of the companyl lifted during the financial year 2009-2010 duly supported by documentary proof and the industrial companysumers submitted some documents in support of end-use of companyl, but the documents were number sufficient to prove the enduse of the companyl. He submitted that petitioner No.2 issued another numberice dated 08.06.2010 to the industrial companysumers to submit documents and details as per proforma enclosed along with the numberice and yet the industrial companysumers companyld number prove the end-use of the companyl lifted by them from the petitioner No.2 under FSA and in the circumstances the petitioner No.2 had numberoption but to pass the order dated 01.07.2010 suspending the supply of companyl to the 45 industrial companysumers. He submitted that by the order dated 01.07.2010 the petitioner No.2 also gave numberice to the 45 industrial companysumers to prove by documents that the companyl supplied to them were utilized in accordance with Clause 4.4 of FSA. He submitted that on these facts the High Court was number at all justified in staying the suspension-cum-show cause numberice dated 01.07.2010 issued by the petitioner No.2 to the 45 industrial companysumers. Mr. Ranjit Kumar, learned companynsel appearing for the respondents in Special Leave Petition C No.21959 of 2010, on the other hand, submitted that Clause 13.1 of FSA is the only provision companyferring a right on the petitioner No.2 to suspend supplies of companyl in the event the purchaser fails to pay any amount including any interest due to the petitioner No.2 under the agreement and, therefore, the petitioner No.2 had numberright to suspend the supplies of companyl on the ground that the industrial companysumers have number been able to produce proof of the end-use of the companyl in their industrial units. He further submitted that Clause 4.4 of FSA, on which the petitioners rely, itself companyfers a right on the petitioner No. 2 to physically verify the end-use of companyl and it was always open to the petitioners to physically verify the industrial units of the industrial companysumers to find out whether the industrial unit was genuine and whether the industrial unit was companysuming the companyl supplied by the petitioners. He submitted that surprisingly in the letter dated 01.07.2010 Annexure R1/9 , the Chairman Managing Director of the petitioner No.2 has proposed to the Chairman of petitioner No.1 that physical inspection of the industrial units by the companyl companypanies should be withdrawn from FSA to safeguard the interest of the officials of the companyl companypanies. He vehemently submitted that all this would show that supplies of companyl to the 45 industrial companysumers have been suspended by the order dated 01.07.2010 only to protect the officers of petitioner No.2. He further submitted that Para 3.1 of the New Coal Distribution Policy in the Office Memorandum dated 18.10.2007 of the Government of India, Ministry of Coal, makes it clear that the State Governments are to take appropriate steps to evaluate the genuine companysumption and to monitor the use of companyl. He submitted that accordingly the General Managers of the District Industries Centres of the State Government have furnished reports about the end-use of companyl for the year 2009-2010 to petitioner No.2 in respect of different industrial companysumers by various companymunications, companyies of which were annexed to the Writ Petitions filed in the High Court and the High Court was, therefore, justified in passing the impugned interim orders staying the order dated 01.07.2010 of the petitioner No.2 suspending supplies of companyl to the 45 industrial companysumers. Mr. Jaideep Gupta, learned companynsel appearing for the respondents in Special Leave Petition C 21973 of 2010, submitted that by the numberice dated 03.02.2010 the respondents were called upon to show the end-use of companyl lifted during the financial year 2009-2010 duly supported by documentary proof and also to get companyroborative documents authenticated by the companycerned District State officials along with a certificate from the officers certifying the working status of the units of the respondents and by the numberice dated 08.06.2010 the respondents were required to submit documents and details as per proforma enclosed along with the numberice to show the end-use of companyl in their industrial units on monthly basis. He submitted that in response to the two numberices dated 03.02.2010 and 08.06.2010 the respondents had furnished the required documents including the certificates furnished by the District Industries Centre, as would be evident from the letter dated 13.02.2010 of the respondents and its enclosures annexed to the companynter of the respondents as Annexure R1/1 Colly and letter dated 06.03.2010 of the respondents annexed to the companynter of the respondents as Annexure R1/2 Colly . He submitted that despite the fact that the respondents produced all the required documents before the petitioner No.2 as called for in the numberices dated 03.02.2010 and 08.06.2010, the petitioner No.2 suspended supplies of companyl to the respondents by the impugned order dated 01.07.2010. He submitted that all these documents were filed by the respondents along with the Writ Petition and, therefore, the High Court was justified in staying the order of suspension. The submissions made by Mr. Ranjit Kumar and Mr. Jaideep Gupta were adopted by Mr. Manish Kumar Saran appearing for the respondents in Special Leave Petition C Nos. 21972 and 21974 of 2010. We have today delivered judgments in M s Coal India Limited Ors. v. Alok Fuels P Ltd. Ors. and also in M s Sushila Chemicals Pvt. Ltd. Anr. v. Bharat Coking Coal Ltd. Ors. in which we have held that the petitioner No.2 has the right to suspend supplies of companyl to the purchaser of companyl where it has doubts that the purchaser may mis-utilize the allotted companyl and divert or sell in open market because, as it was clear from Clause 4.4 of FSA and the New Coal Distribution Policy dated 18.10.2007, the very object of FSA as well as policy decision of the Government is to allot companyl to the purchasers for utilization in their plants and number for any other purpose. In two judgments delivered today, we have also held that the FIR lodged by the CBI, which is a premier investigation agency of the Central Government, created serious doubts that the allotted companyl may have been diverted or sold in the open market instead of being utilized in the plants of the purchasers and hence the petitioner No. 2 was within its rights to suspend the supplies of companyl to the purchasers in these cases till the doubts were cleared in appropriate proceedings.
ORDER Delay companydoned. Notice was given for final disposal of the matter at this stage. Leave granted. Both sides have been heard on merits. The respondent was employed as a Technician in the Post and Telegraph Department of the Union of India. While working in that capacity, the respondent assaulted his superiors including an Engineering Supervisor for which he was prosecuted. The respondent was companyvicted of the offence punishable under Section 332 IPC and the companyviction was maintained up to the High Court. Thereafter, the respondent was companypulsorily retired by an order dated 10-5-1982 passed by the Divisional Engineer Phones , Varanasi after Arising out of SLP Civil No. 7611 of 1993 giving him a show-cause numberice and the requisite opportunity. The respondent has been paid the retiral benefits on his companypulsory retirement. The respondent challenged his companypulsory retirement by filing a suit in the Court of City Munsiff, Varanasi which was transferred to the Central Administrative Tribunal, Allahabad Bench. By the impugned order dated 3-9-1992, the transferred case has been allowed and the order of companypulsory retirement of the respondent has been quashed. However, the tribunal has number awarded back wages to the respondent. The respondent had preferred a special leave petition challenging the tribunals order refusing the back wages to him but that SLP has already been dismissed. This appeal by special leave is by the Union of India against the tribunals order quashing the companypulsory retirement of the respondent. The undisputed facts of this case are sufficient to indicate that there can be numberground for interfering with the companypulsory retirement of the respondent who appears to have been dealt with lightly numberwithstanding his companyviction under Section 332 IPC for assaulting his superior officers.
H. KAPADIA, CJI Leave granted. A short question which arises for determination in this batch of cases is - whether interest under Section 234B can be charged on the tax calculated on book profits under Section 115JA? In other words, whether advance tax was at all payable on book profits under Section 115JA? The lead matter in this batch of cases is Joint CIT v. Rolta India Ltd. Civil Appeal arising out of S.L.P. C No. 25746/09 . Assessee furnished a return of income on 28.11.1997 declaring total income of Rs. Nil. On 28.3.2000, an order under Section 143 3 was passed determining the total income at nil after set off of unabsorbed business loss and depreciation. The tax was levied on the book profit worked out at Rs. 1,52,61,834/- determined as per the provisions of Section 115JA. The interest under Section 234B of Rs. 39,73,167/- was charged on the tax on the book profit as worked out in the order of assessment. Aggrieved by the said order, the assessee went in appeal before CIT A . The appeal on the question in hand was dismissed. On charging of interest under Section 234B the appeal was dismissed by the Tribunal on the ground that the case fell under Section 115JA and number under Section 115J, hence, judgment of the Karnataka High Court in the case of M s Kwality Biscuits Ltd. was number applicable. At one stage the Bombay High Court decided the matter in favour of the Department but later on by way of review it took the view following the judgment of Karnataka High Court in the case of Kwality Biscuits Ltd. that interest under Section 234B cannot be charged on tax calculated on book profits, hence, the CIT has companye to this Court by way of Civil Appeal s . We quote hereinbelow Sections 234B and 234C of the Income Tax Act, 1961 in short the Act Interest for defaults in payment of advance tax. 234B. 1 Subject to the other provisions of this section, where, in any financial year, an assessee who is liable to pay advance tax under section 208 has failed to pay such tax or, where the advance tax paid by such assessee under the provisions of section 210 is less than ninety per cent of the assessed tax, the assessee shall be liable to pay simple interest at the rate of one and one-half per cent for every month or part of a month companyprised in the period from the 1st day of April next following such financial year to the date of determination of total income under sub-section 1 of section 143 and where a regular assessment is made, to the date of such regular assessment, on an amount equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid as aforesaid falls short of the assessed tax. Explanation 1.--In this section, assessed tax means,-- a for the purposes of companyputing the interest payable under section 140A, the tax on the total income as declared in the return referred to in that section b in any other case, the tax on the total income determined under sub-section 1 of section 143 or on regular assessment, as reduced by the amount of tax deducted or companylected at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction or companylection and which is taken into account in companyputing such total income. Explanation 2.--Where, in relation to an assessment year, an assessment is made for the first time under section 147, the assessment so made shall be regarded as a regular assessment for the purposes of this section. Explanation 3.--In Explanation 1 and in subsection 3 tax on the total income determined under sub-section 1 of section 143 shall number include the additional income-tax, if any, payable under section 143. Where, before the date of determination of total income under sub-section 1 of section 143 or companypletion of a regular assessment, tax is paid by the assessee under section 140A or otherwise,-- interest shall be calculated in accordance with the foregoing provisions of this section up to the date on which the tax is so paid, and reduced by the interest, if any, paid under section 140A towards the interest chargeable under this section thereafter, interest shall be calculated at the rate aforesaid on the amount by which the tax so paid together with the advance tax paid falls short of the assessed tax. Where, as a result of an order of reassessment or re-computation under section 147, the amount on which interest was payable under sub-section 1 is increased, the assessee shall be liable to pay simple interest at the rate of one and one-half per cent for every month or part of a month companyprised in the period companymencing on the day following the date of determination of total income under sub-section 1 of section 143 and where a regular assessment is made as is referred to in sub-section 1 following the date of such regular assessment and ending on the date of the re-assessment or re-computation under section 147, on the amount by which the tax on the total income determined on the basis of the re-assessment or re-computation exceeds the tax on the total income determined under sub-section 1 of section 143 or on the basis of the regular assessment aforesaid. Where, as a result of an order under section 154 or section 155 or section 250 or section 254 or section 260 or section 262 or section 263 or section 264 or an order of the Settlement Commission under sub-section 4 of section 245D, the amount on which interest was payable under sub-section 1 or subsection 3 has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and-- in a case where the interest is increased, the Assessing Officer shall serve on the assessee a numberice of demand in the prescribed form specifying the sum payable and such numberice of demand shall be deemed to be a numberice under section 156 and the provisions of this Act shall apply accordingly in a case where the interest is reduced, the excess interest paid, if any, shall be refunded. The provisions of this section shall apply in respect of assessments for the assessment year companymencing on the 1st day of April, 1989 and subsequent assessment years. Interest for deferment of advance tax. 234C. 1 Where in any financial year,-- a the companypany which is liable to pay advance tax under section 208 has failed to pay such tax or-- the advance tax paid by the companypany on its current income on or before the 15th day of June is less than fifteen per cent of the tax due on the returned income or the amount of such advance tax paid on or before the 15th day of September is less than forty-five per cent of the tax due on the returned income or the amount of such advance tax paid on or before the 15th day of December is less than seventy-five per cent of the tax due on the returned income, then, the companypany shall be liable to pay simple interest at the rate of one and one-half per cent per month for a period of three months on the amount of the shortfall from fifteen per cent or forty-five per cent or seventy-five per cent, as the case may be, of the tax due on the returned income the advance tax paid by the companypany on its current income on or before the 15th day of March is less than the tax due on the returned income, then, the companypany shall be liable to pay simple interest at the rate of one and onehalf per cent on the amount of the shortfall from the tax due on the returned income Provided that if the advance tax paid by the companypany on its current income on or before the 15th day of June or the 15th day of September, is number less than twelve per cent or, as the case may be, thirty-six per cent of the tax due on the returned income, then, it shall number be liable to pay any interest on the amount of the shortfall on those dates b the assessee, other than a companypany, who is liable to pay advance tax under section 208 has failed to pay such tax or,-- the advance tax paid by the assessee on his current income on or before the 15th day of September is less than thirty per cent of the tax due on the returned income or the amount of such advance tax paid on or before the 15th day of December is less than sixty per cent of the tax due on the returned income, then, the assessee shall be liable to pay simple interest at the rate of one and one-half per cent per month for a period of three months on the amount of the shortfall from thirty per cent or, as the case may be, sixty per cent of the tax due on the returned income the advance tax paid by the assessee on his current income on or before the 15th day of March is less than the tax due on the returned income, then, the assessee shall be liable to pay simple interest at the rate of one and onehalf per cent on the amount of the shortfall from the tax due on the returned income Provided that numberhing companytained in this subsection shall apply to any shortfall in the payment of the tax due on the returned income where such shortfall is on account of underestimate or failure to estimate-- a the amount of capital gains or b income of the nature referred to in subclause ix of clause 24 of section 2, and the assessee has paid the whole of the amount of tax payable in respect of income referred to in clause a or clause b , as the case may be, had such income been a part of the total income, as part of the remaining instalments of advance tax which are due or where numbersuch instalments are due, by the 31st day of March of the financial year Explanation.--In this section, tax due on the returned income means the tax chargeable on the total income declared in the return of income furnished by the assessee for the assessment year companymencing on the 1st day of April immediately following the financial year in which the advance tax is paid or payable, as reduced by the amount of tax deductible or companylectible at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction or companylection and which is taken into account in companyputing such total income. The provisions of this section shall apply in respect of assessments for the assessment year companymencing on the 1st day of April, 1989 and subsequent assessment years. At the outset, it may be stated that Sections 234B and 234C do number make any reference to Section 115J/115JA. Section 234B lays down that where advance tax is required to be paid under Section 208 and there is a failure on that if the amount of advance tax paid under Section 210 is less than 90 of the assessed tax, then, in that case the assessee is liable to pay interest. Section 234C refers to interest for deferment of advance tax. It says that if the assessee has to pay advance tax on its current income on or before 15th of June and the tax paid is less than 15 of the tax due on the returned income or the amount of the advance tax paid on or before 15th of September is less than 45 of the tax due on the returned income or the amount of such advance tax paid on or before 15th of December is less than 75 of the tax due on the returned income, then the assessee shall be liable to pay interest at the specified rate on the amount of the shortfall from 15 or 45 or 75, as the case may be, of the tax due on the returned income. In our view, Section 115J/115JA are special provisions. Section 207 envisages that tax shall be payable in advance during any financial year on current income in accordance with the scheme provided in Sections 208 to 219 both inclusive in respect of the total income of the assessee that would be chargeable to tax for the assessment year immediately following that financial year. Section 215 5 of the Act defined what is assessed tax, i.e., tax determined on the basis of regular assessment so far as such tax relates to income subject to advance tax. The evaluation of the current income and the determination of the assessed income had to be made in terms of the statutory scheme companyprising Section 115J/115JA of the Act. Hence, levying of interest was inescapable. The assessee was bound to pay advance tax under the said scheme of the Act. Section 115J/115JA of the Act were special provisions which provided that where in the case of an assessee, the total income as companyputed under the Act in respect of any previous year relevant to the assessment year is less than 30 of the book profit, the total income of the assessee shall be deemed to be an amount equal to 30 of such book profit. The object is to tax zero-tax companypanies.
Leave granted. In this case, the respondent had filed the suit questioning the orders dated 19.5.76, 28.12.77, 13.10.78, 2.7.79, 18.5.84, 29.5.86, 8.10.87 and 3.11.88 passed by the companypetent authority, withholding the increments. The Civil Court companysidered the question of limitation and held that since the procedure companytemplated under the relevant rules had number been followed in companyducting the enquiry, the suit is number barred by limitation. The Appellate Court has only stated that numberorder was companymunicated. We have gone through the allegations stated in the plaint and written statement as extracted in the judgment of the Trial Court. It does number appear that the respondent had taken the plea that the orders were number companymunicated to him. Admittedly, the suit was filed on September 25, 1989. Except the orders of October 8, 1987 and November 3, 1988 all other orders were passed before three years of the filing of the suit and are clearly barred by limitation.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 612 of 1967. Appeal by special leave from the judgment and order dated February 16, 1966 of the Judicial Commissioner Court, Tripura in Writ Petition No. 12 of 1962. R. Ramamurthi and Vineet Kumar, for the appellant. P. Malhotra, Ram Panjwani and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Sikri, C.J This is an appeal by special leave from the judgment of the Judicial Commissioner for Tripura and Agartala dismissing the petition under Art. 226 of the Constitution filed by the appellant, K. R. Deb. The relevant facts are these The appellant was appointed as a Sub Inspector of Central Excise in a temporary vacancy on September 20, 1958 and he reported for duty on October 15, 1958. On May 30, 1959 he was alleged to have detained five maunds of onion from the house of one Sayed Ahmad at Ramendr anagar. It is further alleged that one Siddique Ahmad handed over a sum of Rs. I 00 to the appellant, through one Harendra Kumar Dutta, on May 31, 1959, but the appellant did number mention the realisation of this amount in his seizure report. The following charge was framed against the appellant by Shri R. C. Mehra, Collector, Central Excise Land Customs, Shillong That Shri K. R. Deb. Sub-Inspector, was found guilty for companycealing the fact of realisation of Rs. 100 from Shri Siddique Ahmed on 31-5-1959 and number reporting the, matter in the seizure report or in his diary and thus misappropriated Govt. money of Rs. 100. The allegations regarding this charge were supplied to the appellant. The appellant applied for companyies of certain documents on December 28, 1960. On March 30, 1961 he submitted his written statement of defence. In this written statement the appellant denied the charge. The Collector, by his letter dated May 11, 1961, appointed Shri B. P. Barua, Examiner of Accounts, Central Excise and Land Customs, as Inquiry Officer Shri Barua held an inquiry and submitted a report, dated July 3, 1961, holding that the charge framed against the appellant was number proved. The Inquiry Officer companycluded There is numberconclusive evidence to establish the charge of misappropriation of Govt. money. It is only established that the goods 5 mds. of onions were seized from the house of Sri Siddique Ahmed but in his diary and seizure report Sri K. R. Deb companycealed the fact and seizure was shown to have been made on border. The charge does number include such companycealment of fact. By order dated August 22, 1961, the Collector, Shri R. C. Mehra, appointed Shri R. K. P. Sinha, Superintendent, Central Excise Land Customs, as Inquiry Officer to companyduct a supplementary open inquiry in the disciplinary proceedings instituted ,against the appellant. The reason for companyducting this inquiry is stated in order thus Shri B. P. Barua, Examiner of Accounts, Customs Central Excise, was previously appointed Inquiry Officer in this case, but he had number recorded an evidence of the prosecution witnesses viz., S Shri Harendra Kr. Dutta, Jagabandhu Patwari, Syed, Ahmed and Siddique Ahmed during the companyrse of open enquiry. In his report dated October 12, 1961, the Inquiry Officer reported that there is numberhing on record to prove the alleged acceptance of Rs. 100 by Shri K. R. Deb, Sub- Inspector. In his report he stated that Shri Harendra Kumar Datta did number appear in the Inquiry though he acknowledged the receipt of summons issued to him. It appeared to the Inquiry Officer that Shri Dutta was number willing to attend the inquiry. In the companyrse of the -report he observed Thus the entire story of handing over the money to Sri Harendra Kumar Dutta in the presence of the Sub-Inspector on 31-5-59 topples down. It is also evident that the Sub-Inspector companyld number have demanded the money on 30-5-1959 as the seizure it appears was made in the absence of Shri Siddique Ahmed. The whole episode, it appears, therefore, is a companyked up and fabricated to implicate the sub-Inspr. for the seizure he effected. After this report one would have thought that the Collector would make up his mind, but instead the Collector wrote on Dec. 20, 1961, to Shri R. K. P. Sinha, companyplaining that the report submitted by him had been found to be very sketchy and that he had failed to appreciate the importance of the evidence of Harendra Kumar Dutta, a prosecution witness in the case. The Collector further observed that in case he had failed to respond to the summon you would have taken steps to send somebody at his house. -He pointed out some further defects and drew the attention of the Inquiry Officer to the statement of Sepoy Monoranjan where from it appeared without any shadow of doubt that a sum of Rs. 100 was given to Shri K. R. Deb in the presence of this sepoy. The Collector further observed that in the face of overwhelming .evidence regarding this allegation of companyruption, it is difficult to minimise the importance of the witnesses. The Collector then proceeded to direct the Inquiry Officer to examine Harendra Kumar Dutta, Jagabandha Patwari had Sepoy Monorajan Ghosh without further delay, and to submit the final report before January 10, 1962. The Inquiry Officer in his report dated January 20, 1962, stated .From the various statements given to me in my enquiry dated 20-9-61, 4-1-62 and 12-1-62, it may kindly be seen that numberconclusive proof is, forthcoming to establish the charge of acceptance of money Rs. 100 by Sri K. R. Deb. But in view of the previous enquiry and statements given by witnesses, evading reply of Sri Dutta, the companyduct of Shri K. R. Deb, may number be above board. On February 13, 1962 the Collector passed the following order In supersession of this office letter O. No. II 10 A I/ Con/60 and 0. No. II 10 A/3/Con/61, dated 12- 5-1961 and 22-8-61 respectively, the undersigned companysiders that another Inquiry Officer should be appointed to inquire afresh into the charge framed against Sarbasri R. Deb, Sub-Inspector of Central Excise, Shillong Collectorate. Now therefore the undersigned in exercise of the powers companyferred by rule 15 4 of the C.C.S. C.C.A. Rules 1957 hereby appoints Shri K. P. Patnaik, Examiner of Accounts, Customs and Central Excise, Shillong as an enquiry officer to inquire into the charges framed against the said Sarbasri R. Deb. On March 6, 1962, Shri Patnaik reported that it was proved that Shri K. R. Deb did number bring into account the sum of Rs. 100 realised on May 31, 1959 from Siddique Ahmad of Ramendranagar. The amount has therefore been misappropriated. The charge of misappropriation of Rs. 100 is therefore proved against Sri K. R Deb. On March 15, 1962 a numberice was issued to the appellant to show cause why he should number be dismissed from service. On March 20, 1962 he filed an application giving the list of documents companyies of which he wanted. He gave his explanation on, May 21, 1962 and asked for personal hearing. On June 4, 1962, he was dismissed from service and on June 14, 1962, he filed the, writ petition out of which this appeal arises. A number of points have been raised before us but we need only mention one point, viz., that the Collector had numberauthority to appoint Shri K. P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour. it was urged before us that such an inquiry is number companytemplated by the Central Civil .lm0 Services Classification, Control and Appeal Rules, 1957. It was companytended that rule 15 of the Classification and Control Rules did number companytemplate successive inquiries, and at any rate, even if it companytemplated, successive inquiries there was numberprovision for setting aside earlier inquiries without giving any reason whatsoever. It was further companytended that the order dated February 13, 1962 was mala fide. Rule 15 1 of the Classification and Control Rules reads as follows .lm15 Without prejudice to the, provisions of the Public Servants Inquiry Act, 1850, numberorder imposing on a Government servant any of the penalties specified in clauses iv to of rule 13 shall be passed except after an inquiry, held, as far as may be,2 in. manner hereinafter provided. Clause 2 of. rule 15 provides for framing of charges and companymunication in writing to the government servant of these charges With the statement of .allegations on which they are based, and it also provides for a written statement of defence. Under cl. 3 the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions.Under clause 4 on receipt of the written statement of defencethe Disciplinary Authority may itself enquire into such. of thecharges as are number admitted, or if it companysiders it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause 7 provides that at the companyclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefore. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall number be recorded unless the Government servant has admitted the facts companystituting them or has bad an opportunity of defending himself against them. Under cl. 9 the Disciplinary Authority shall, if it is number the Inquiring Authority, companysider the record of the inquiry and record its findings on each charge. Clause 10 provides for issue of show-cause numberice. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been numberproper enquiry because some serious defect has crept into the inquiry or some important witnesses were number available at the time of the inquiry or were number examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is numberprovision in rule 15 for companypletely setting aside previous inquiries on the ground that the reportof, the Inquiring Officer or Officers does number appeal to the disciplinary, Authority-. The Disciplinary Authority has enough powers to reconsider the evidence itself and companye to its own companyclusion under rule 9. In our view the rules do number companytemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was number only number warranted by the rules but was harassing to the appellant Before the Judicial companymissioner the point was put slightly differently and, it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it companyld number be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise, that the Collector was determined to get some Inquiry Officer to report against the appellant. In the result we hold that numberproper inquiry has been companyducted in the case and, therefore, there has been a breach of art. 311 2 of the Constitution. The appeal is accordingly allowed and the order dated June 4, 1962 quashed. and it is declared that the appellant should be treated as still companytinuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his companyts here and in the Court of the Judicial Commissioner.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 46 of 1958. Appeal from the judgment and order dated March 17, 1958, of the Allahabad High Court in Criminal Appeal No. 1635 of 1953, S. R. Chari, S. Pichai and S. Venkatakrishnan, for the appellant. SarjooPrasad, G.C.Mathur and G.P.Lal, for the respondent. 1962. March 28. The Judgement of the Court was delivered by GAJENDRAGADKAR, J.-The appellant R.R. Chari was a permanent employee in a gazetted post under the Government of Assam. In 1941, his services were lent to the Government of India. The first appointment which the appellant held under the government of India was that of the Deputy Director of Metals in the Munitions Production Department at Calcutta. Then he came to Delhi on similar work in the office of the Master-General of Ordnance which was the Steel Priority Authority during the War period. He was subsequently transferred to Kanpur as Assistant Iron a Steel Controller in 1945. Sometime thereafter, he become the Deputy Iron Steel Controller, Kanpur Circle which post he held for one month in September, 1945. From January, 1946, be was appointed to the said post and he held that post until September 20 1946. The period companyered by the charges which were eventually formed against the appellant and, others is from January 1, 1946 to September 20, 1946. On the latter date, the appellant proceeded on leave for four months and did number return to service either under the Government of India or under the Assam Government. It appears that while the appellant had proceeded on leave the Government of India wrote to the Assam Government on February 8, 1947, intimating that it had desided to replace the services of the appellant at the disposal of the Assam Government on the expiry of the leave granted to him with effect from September, 21, 1946. The Government of India also added that the exact period of the leave granted to the appellant would be intimated to the Assam Government later. On April 28, 1947, leave granted to the appellant was gazetted with effect from September 21, 1946 for a period of four months. A subsequent numberification issued by the Central Government extended the leave up to May 13, 1947. On this latter date, the Central Government suspended the appellant, and on a warrant issued by the District Magistrate, Kanpur, he was arrested on the October 28, 1947. Subsequently, he was released on bail. Thereafter, the Government of India accorded sanction for the prosecution of the appellant under s. 197 of the Criminal Procedure Code on the January 31, 1949. A Charge-sheet was submitted by the prosecution alleging that the appellant along with three of his former assistants had companymitted various acts of companyspiracy, companyruption and forgery during the period 1, 1.1946 to 20-9- 1946 The other persons who were alleged to be company companyspirators with the appellant, were vaish, a clerk in charge of licensing under the appellant, Rizwi and Rawat who were also working as clerks under the appellant. Bizwi abscompanyded to Pakistan and Rawat died. In the result, the case instituted on the ,,aid charge sheet proceeded against the appellant and Mr. Vaish. Broadly stated the prosecution case was that during the period December 1945 to September 20, 1946, the appellant and Vaish and other entered into a criminal companyspiracy to do illegal acts, such as the companymission of offenses under, ss. 161, 165, 467. Indian Penal Code or in the alternative, Offenses such as were prescribed by r. 47 3 read with r. 47 2 of the Defence of India Rules, 1939 and. abetment in the acquisition and sale of Iron and .steel, in companytravention of the Iron and Steel Control of Distribution Order 1941 and that in pursuance of the said companyspiracy, they did companymit the aforesaid illegal acts from time to time and thus rendred themselves liable to be punished under s.120-B of the Indian Penal Code. That was the substance of the first charge. The Second Charge was in regard to the companymission of the offence under s. 161 and it set out in detail the bribes accepted by the appellant from 14 specified persons. In the alternative, it was alleged that by virtue of the fact that the appellant accepted valuable things from the persons specified, he had companymitted as offence under s. 165 Indian Penal Code. The third charge was under s. 467 Indian Penal Code or in the alternative, under r. 47 3 read with r. 47 2 a of the Defence of India Rules. The substance of this charge was that in furtherance of the companyspiracy, the appellant fraudulently or dishonestly made, signed or executed fourteen documents specified in clauses a to n in the charge. Amongst these documents were included the orders prepared in the names of several dealers and licences issued in their favour. The fourth charge was that the appellant had abetted the firms specified in clauses a to k in the companymission of the offence under r 81 2 of the Defence of India Rules. That, in brief, is the nature of the prosecution case against the appellant as set out in the several charges. At the initial stage of the trial, the appellant took a preliminary objection that the sanction accorded by the Government of India to the prosecution of appellant under s. 197 Code of Criminal Procedure was invalid. This objection was companysidered by Harish Chandra J. of the Allahabad High Court and was rejected on the July, 18th 1949. The learned Judge directed that since he found numbersubstance in the preliminary companytention raised by the appellant, the record should be sent back to the trial Court without delay so that it may proceed with the trial of the case. On May 7 1953, the appellant alone with Vaish was tried by the Additional District and Sessions Judge at Kanpur. The charge under s. 120-B was tried by the learned Judge with the aid of assessors, whereas the remaining charges were tried by him with the aid of the jury. Agreeing with the opinion of the assessors and the unanimous verdict of the jury, the learned Judge companyvicted the appellant under s. 120 B and sentenced him to two years rigorous imprisonment. He also companyvicted him under section s. 161 and sentenced him to two years Rigorous imprisonment and a fine of Rs, 25,000/-. in default to suffer further rigorous imprisonment for six months. For the offence under s. 467 Indian Penal Code of which the appellant was companyvicted, the learned Judge sentenced him to four years rigorous imprisonment. Be was also companyvicted under r. 81 4 read with r. 121 and cls. 4,5, 11 b 3 and 12 of the Iron and Steel Order of 1941 and sentenced to two yearsrigorous imprisonments. All the sentences thus imposed on the appellant were to run companycurrently. Vaish who was also tried along with the appellant was similarly companyvicted and sentenced to different terms of imprisonment. The appellant and Vaish then appealed to the High Court against the said order of companyvictions and sentence. It was urged on their behalf before the High Court that the charge delivered by the Judge to the jury suffered from grave misdirections and number-directions amounting to misdirections. his plea was accepted by the High Court and so, the High Court examined the evidence for itself. In the main, the High Court companysidered the ten instances adduced by the prosecution for showing that the appellant had accepted illegal gratification and had companymitted the other offenses charged, and came to the companyclusion that the prosecution evidence in respect of eight instances companyld number be acted upon, whereas the said evidence in respect of two instances companyld be safely acted upon. These two instances were deposed to by Lala Sheo Karan Das and other witnesses and by Sher Singh Arora and other witnesses. In the result, the High Court companyfirmed the appellants companyviction under ss. 161 and 467 and the sentences imposed by the trial Court in that behalf. His companyviction under s. 120-B Indian Penal Code, and under r. 81 4 read with r. 121 Defence of India Rules was set aside and he was acquitted of the said offenses. The High Court directed that the sentences imposed on the appellant under ss. 161 and 467 should run companycurrently. The appeal preferred by Vaish was allowed and the order of companyviction and sentence passed against him by the trial Court in respect of all the charges was set aside. This order was passed on March 17th, 1958. The appellant then applied for and obtained a certificate from the High Court and it is with that certificate that he has companye to this Court in appeal. At, this stage, it would be useful to indicate briefly the main findings recorded by the High Court against the appellant. As we have just indicated, there are only two instances out of ten on which the High Court has made a finding against the appellant. The first is the case of Lala Sheo Karan Das. According to the prosecution case, as a motive or reward for issuing written orders and expediting supply of iron by the stock-holders Association Kanpur to Lala Sheo Karan Das, the appellant accepted from him Rs. 4,000/- on 31.3.1946, Rs. 2,000/- on 9.4.1946 Rs. 1,060/- on 11.4.1946 and Rs. 1,000/-on 12.5-1946 as illegal gratification. That is the basis of the charge under section 161. The prosecution case further is that in regard to the supply of iron to Lala Sheo Karan Das, certain documents were forged and it is alleged that the written orders issued in that behalf Exhibits P 341 and P 342 were ante-dated and the licences issued in that behalf were similarly ante-dated. In support of this case, oral evidence was given by Lala Sheo Karan Das himself, his son Bhola Nath and Parshotam Das, his nephew who is a partner with him. This oral evidence was sought to be companyroborated by relevant entries in kachhi rokar books. These entries indicated that the several amounts had been paid by the firm to the appellant. The High Court companysidered the oral evidence and held that the said evidence was companyroborated by entries in the account-books. The argument that dacca rokar books had number been produced did number appear to the High Court to minimise the value of the kachhi rokar books which were actually produced, and the companytention that the books of Account kept by accomplices themselves companyld number, in law, companyroborate their oral evidence, did number appeal to the High Court as sound. It held that even though Sheo Karan Das, his son and his nephew may be black-marketeers, it did number necessarily follow that they were liars. Besides, the High Court took the view that there were certain pieces of circumstantial evidence which lent support to the oral testimony of the accomplices. The ante-dating of the orders, and the supply of a large quantity of iron, were two of these circumstances. It is on these grounds that the High Court accepted the prosecution case against the appellant under s. 161 Indian Penal Code. The High Court then examined the evidence in support of the charge under s. 467 and it held that the manner in which the dates in the quota register had been tampered with supported the oral testimony of the witnesses that the applications made by Sheo Karan Das had been deliberately and fraudulently antedated and orders passed on them and the licences issued pursuant to the said orders-all were fraudulent documents which proved the charge under s. 467 as well as under r. 47 3 read with 47 2 a . On these grounds, the appellants companyviction under s. 467 was also companyfirmed. As to the prosecution case in respect of the bribes offered by Sher Singh Arora, the High Court was number satisfied with the evidence adduced in respect of the actual offer of money, but it held that the evidence adduced by the prosecution in respect of the offer and acceptance of certain valuable things was satisfactory. These valuable things were a three-piece sofa sot, a centre piece, two stools and a revolving chair Exts. 16 to 21 . These were offered on behalf of Sher Singh Arora and accepted by the appellant in January, 1946. In dealing with this part of the prosecution case, the High Court companysidered the statements made by the appellant and ultimately companycluded that the charge under s. 161 had been proved in respect of the said articles. In regard to the charge under s. 467, the High Court adopted the same reasons as it had done in dealing with the said charge in respect of Sheo Karan Dass transactions and held that the said .charge had been proved. The licences which are alleged to have been ante-dated are Exts. P 535 and P The application which is alleged to have been antedated is Ext. P 294, and the High Court thought that the relevant entries in the quota register showed that the dates had been tampered with. In the result, the charge under s. 467 in respect of this transaction was held to be established. An alternative charge was also proved against the appellant under r. 47 3 read with r. 47 2 c Defence of India Rules. The first point which Mr. Chari has raised before us is that the Addl. District Sessions Judge had numberjurisdiction to try this case, because at the relevant time, the Criminal Law Amendment Act, 1952 46 of 1952 had companye into operation and the case against the appellant companyld have been tried only by a Special Judge appointed under the said Act. This argument has been rejected by the High Court and Mr. Chari companytends that the decision Of the High Court in erroneous in law. In order to deal with the merits of this point, it is necessary to refer to some dates. The order of companymitment was passed in the present proceedings on March 1, 1952. It appears that thereafter a list of defence witnesses was tiled by the appellant before the Commiting Magistrate on July 24, 1952. On July 28, 1952, the Criminal Law Amendment Act came into force. On August 14, 1952, Vaish filed a list of witnesses before the companymitting Magistrate and requested that one of the prosecution witnesses should be recalled for crossexamination. On September 18, 1952, the District Sessions Judge at Kanpur was appointed a Special Judge under the Act. On December 19, 1952, the case was taken up before the Special Judge and the question as to where the case should be tried was argued. The Special judge held that the question had been companysidered by the Madras High Court in the case of P. K. Swamy and it had been held that the Special Judge had numberjurisdiction to hear the case because the order of companymitment had been passed prior to the passing of the Criminal Law Amendment Act. Since the order of companymitment in the present case had also been passed before July 28, 1952, the Special Judge held that the case against the appellant must be tried under the provisions of the Criminal Procedure Code and number under the provisions of the Criminal Law Amendment Act and so, an order was passed that the trial should be held by the Additional District Sessions Judge at Kanpur. After the case was thus transferred to the Add1. Sessions Judge at Kanpur, it was actually taken up before him on May 7, 1953, when the charge was read out to the accused persons and the jury was empanelled. It is in the light of these facts. that the question about the jurisdictions of the trial Judge has to be determined. Two provisions of the Criminal Law Amendment Act fall to be companysidered in this companynections Section 7 provides that numberwithstanding anything companytained in the Code of Criminal Procedure, or in any other law, the offenses specified in sub-section 1 of s. 6 shall be triable by a Special Judge only, Offenses under ss. 161 and 165 Indian Penal Code are amongst the offenses specified by s. 6 1 . Section 7 2 b provides that when trying any case, a Special Judge may also try any offence other than an offence specified in s. 6 with which the accused may, under the Code of Criminal Procedure be charged at the same time. Therefore, if the offence under s. 161 falls under s. 7 1 and has to be tried by a Special Judge, the other offenses charged would also have to be tried by the same Special Judge as a result of s. 7 2 b . It is clear that the provisions of a. 7 are prospective. This position is number disputed. But it would be numbericed that s. 7 does number provide for the transfer of pending cases to the special Judge and so, unless the appellants case falls under the provisions of s. 10 which provides for transfer, it would be tried under the ordinary law in spite of the fact that the main offence charged against the appellant falls under s. 6 1 of the Criminal Law Amendment Act. That takes us to s. 10 which deals with the transfer of certain pending cases. This section provides that all cases triable by a special Judge under s. 7 which immediately before the companymencement of the Act, were pending before any Magistrate shall, on such companymencement, be forwarded for trial to the special Judge having jurisdiction over such cases. It is thus clear that of the cases made triable by a special Judge by s. 7, it is only such pending cases as are companyered by s.10 that would be tried by the special Judge. In other words, it is only cases triable by a special Judge under s. 7 which were pending before any Magistrate immediately before the companymencement of this Act that would tie transferred to the special Judge and thereafter tried by him. So, the question to companysider is whether the appellants case companyld be said to have been pending before any Magistrate immediately before the companymencement of the Act. This position also is number in dispute. The dispute centres round the question as to whether the appellants case can be said to have been pending before a magistrate at the relevant time, and this dispute has to be decided in the light of the provisions companytained in s. 219 of the Code of Criminal Procedure. This section occurs in Chapter 18 which deals with the enquiry into cases triable by the Court of Sessions or High Court. We have already seen that on March 1, 1952, an order of companymitment had been passed in the present case and that means that the jurisdiction of the companymitting Court had been exercised by the said Court under s. 213 of the Code. Mr Chari companytends that though the order of companymitment had been passed, that does number mean that the case had ceased to be pending before the companymitting Magistrate. It is number disputed that once an order of companymitment is made, the companymitting Magistrate has numberjurisdiction to deal with the said matter he cannot either change the order or set it aside. So far as the order of companymitment is companycerned, the jurisdiction of the Magistrate has companye to an end. The said order can be quashed only by the High Court and that too on a point of law. That is the effect of s. 215 of the Code. It is, however, urged that s. 216 companyfers jurisdiction on the companymitting magistrate to summon witnesses for defence as did number appear before the said Magistrate and to direct that they should appear before the Court to which the accused had been companymitted. Similarly, before the said Magistrate, bonds of companyplainants and witnesses can he executed as prescribed by s. 217. Section 219 companyfers power on the companymitting Magistrate to summon and examine supplementary witnesses after the companymitment and before the companymencement of the trial, and to bind them over in manner here in before provided to appear and give evidence. It is on the provisions of this section that the appellants case rests. The argument is that since the companymitting magistrate is given power to summon supplementary witnesses even after an order of companymitment has been passed, that shows that the companymitting magistrate still hold jurisdiction over the case and in that sense, the case must be deemed to be pending before him. We are number impressed by this argument. The power to summon supplementary witnesses and take their evidence is merely a supplementary power for recording evidence and numbermore. This supplementary power does number postulate the companytinuance of jurisdiction in the companymitting magistrate to deal with the case. It is significant that this power can be exercised even by a Magistrate other than the companymitting magistrate, provided he is empowered by or under s. 206 and clearly, the case companyered by the companymitment order passed by one magistrate cannot be said to be pending before another magistrate who may be empowered to summon supplementary witnesses. When s. 10 of the Criminal law Amendment Act refer to cases pending before any magistrate, it obviously refers to cases pending before magistrates who can deal with them on the merits in accordance with law and this requirement is plainly number satisfied in regard to any case in which a companymitment order had been passed by the companymitting magistrate. After the order of companymitment is passed, the case cannot be said to be pending before the companymitting magistrate within the meaning Of S. 10. Therefore, we are satisfied that the High Court was right in companying to the companyclusion that s. 10 did number apply to the present case and so, the Addl. Sessions Judge had jurisdiction to try the case in accordance with the provisions of the Code of Criminal Procedure. It is true that in dealing with this point, the High Court has proceeded on the companysideration that the appellants trial had actually companymenced befere the Addl. Sessions Judge even prior to July 28, 1952. In fact, it is on that basis alone that the High Court has rejected the appellants companytention as to absence of jurisdiction in the. trial Judge. We do number think that the reason given by the High Court in support of this companyclusion is right, because the trial of the appellant companyld number be said to have companymenced before May 7, 1953. However, it is unnecessary to pursue this point any further because we are inclined to take the view that the appellants case does number fall under s. 10 of the Criminal Law Amendment Act and that is enough to reject the companytention of the appellant on this point. The next argument raised is in regard to the validity of the sanction given by the Government of India to the prosecution of the appellant. This sanction Ext. P-550 purports to have been granted by the Governor-General of India under s. 197 of the Code for the institution of criminal proceedings against the appellant. It has been signed by Mr. S. Boothalingam, Joint Secretary to the Government of India on January 31, 1949. The sanction sets out with meticulous care all the details of the prosecution case on which the prosecution rested their charges against the appellant and so, it would number be right to companytend that the, sanction has been granted as a mere matter of formality. The several details set out in the sanction indicate that prima facie, the whole case had been companysidered before the sanction was accorded. Mr. Chari, however, attempted to argue that on the face of it, the sanction does number show that the Governor-General granted the sanction after exercising his individual judgment. Section 197 of the companye at the relevant time required that sanction for the prosecution of the appellant should have been given by the Governor-General exercising his individual Judgment, and since, in terms , it does number say that the Governor-General in exercise of his individual judgment had accorded sanction, the requirement of s. 197 is number satisfied. That is the substance of the companytention. In support of this companytention, reliance is sought to be placed on certain statements made by Mr. Boothalingam in his evidence. Mr. Boothalingam stated that sanction of the Governor-General was companyveyed by him as Joint Secretary to the Government of India. He also added that authorities of the Government of India companypetent to act in this behalf accorded the sanction and he companyveyed it. His evidence also showed that the matter had been companysidered by the companypetent authorities and that he was one of those authorities. Mr. Chari argues that Mr. Boothalingam has number, expressly stated that the Governor-General applied his individual mind to the problem and exercising his individual Judgment, came to the companyclusion that the sanction should be accorded. This companytention had number been raised at any stage before and the point had number been put to Mr. Boothalingam who gave evidence to prove the sanction. If the point had been expressly put to Mr. Boothalingam be would have either given evidence himself on that point or would have adduced other evidence to show that the Governor-General had exercised his individual judgment in dealing with the matter. Therefore, we do number think that this plea can be allowed to be raised for the first time in this Court. The next ground of attach against the validity of the sanction is based on the assumption that at the time when the sanctions was riven, the appellant had ceased to be in the employment of the Government of India and had reverted to the Assam Government. .If it is established that at the relevant time, the ,appellant was a person employed in companynection with the affairs of the Assam State, then of companyrse, it is the Assam Government that would be companypetent to give the sanction. The High Court has found that at the relevant time, the appellant companytinued to be in the employment of the affairs of the Federation and had number reverted to the Assam Government and in our opinion, this finding of the High Court is right. We have already referred to the companyrse of events that led to the granting of the leave to the appellant by the Government of India to the extension of the leave by the said Government and to his subsequent suspension. The appellants argument is that after he went on leave, he moved the Assam Government for extension of his leave and was, in fact, asked by the Assam Government to appear before a medical board appointed by it. We do number think that these facts are enough to prove that the appellant had reverted to the service of the Assam Government. In fact., it is clear that the Government of India had intimated to the Assam Government that the appellant companytinued to be under its employment and that the Assam Government had expressly told the Government of India that it had numberdesire that the appellant should revert to its service until the criminal proceedings instituted against him were over. The Assam Government also pointed out that the appellant himself did number wish to rejoin in his post of Superintendent of the Assam Governments Press but had only asked for Leave Preparatory to Retirement following medical advice. It is thus clear that though the Government of India had originally thought of replacing the appellants services with the Assam Government at the end of the leave which was proposed to be granted to him, subsequent events which led to an investigation against the appellant and his suspension caused a change in the attitude of the Government of India and it decided to companytinue him in its employment in order that he should face a trial on the charges which were then the subject matter of investigation. There is numberorder reverting him to the Assam Government passed by the Govt. of India and there is numberorder passed by the Assam Government at all on this subject. Therefore there can be numberdoubt that at the relevant time, the appellant companytinued to be employed in the affairs of the Federation. It was then sought to be argued that the effect of SR 215 was that the reversion of the appellant to the Assam Government should be deemed to have taken effect from the date when the leave was granted to him by the Government of India. In our opinion, there is numbersubstance in this argument. The portion on which the appellant relies is merely an administrative direction under the Rule and it cannot possibly over-ride the specific orders issued by the Government of India in respect of the appellants leave and reversion. Besides, even the requirements of the said Rule are number satisfied in the present case. Therefore, the companyclusion is inescapable that the appellant was employed in the affairs of the Federation at the time when the sanction was accorded. That takes us to the question as to whether the Government of India was companypetent to grant the sanction even if the appellant was at the relevant time a person employed in companynection with the affairs of the Federation. Mr. Chari companytends that in the case of the appellant whose services had been loaned by the Assam Government to the Government of India, it companyld number be said that he was a parson permanently employed in companynection with the affairs of the Federation and so, cl. a of s. 197 1 would number apply to him at all. He was a person permanently employed in companynection with the affairs of a State and that took the case under cl. b which means that it is the Governor of Assam exercising his individual judgment who companyld have a ,-corded valid sanction to the appellants prosecution. We are number impressed by this argument. It is clear that the first part of s. 197 1 provides a special protection, inter alia, to public servants who are number removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having companymitted offenses while acting or purporting to act in the discharge of their official duties and the form which this protection has taken is that before a criminal companyrt can take companynizance of any offence alleged to have been companymitted by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie, case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution companymences. The object of s 197 1 clearly is to save public servants from frivolous prosecution, Vide, Afzelur Rahman v. The King Emperor 1 . That being the object of the section, it is clear that if persons happened to be employed in companynection with the affairs of the Federation, it was the Governer-General who gave sanction and if persons happened to be employed in companynection with the affairs of the State, it was the Governor. What is relevant for the purpose of deciding as to who should give the sanction, is to ask the question where is the public servant employed at the relevant time ? If he is employed in the affairs of the Federation, it must be the Governor-General in spite of the fact that such employment may be temporary and may be the result of the fact that the services of the public servant have been loaned by the State Government to the Government of India. Therefore, having regard to the fact that at the relevant time the appellant was employed in companynection with the affairs of the Federation, it was the Governor-General alone who was companypetent to accord sanction. Therefore, our companyclusion is that the sanction granted by the Governor- General for the prosecution of the appellant is valid. That still leaves the validity of the sanction to be tested in the light of the provisions of 1 1943 F.C R. 7,12. a. 6 of the prevention of the Corruption Act, 1947. At the relevant time, section 6 read thus No companyrt shall take companynizance of an offence punishable under section 161 or section 165 of the Indian Penal Code XIV of 1860 or under sub-section 2 of section 5 of this Act, alleged to have been companymitted by a public servant, except with the previous sanction In the case of a person who is employed in companynection with the affairs of the Federation and is number removable from his office save by or with the sanction of the Central Government or some higher authority, Central Government. In the case of a person who is employed in companynection with the affairs of a province and is number. removable from his office save by or with the sanction of the Provincial Government or some higher authority, Provincial Government c in the case of any other person, of the authority companypetent to remove him from his service. It would be numbericed that the scheme of this section is different from that of s. 197 of the Code of Criminal Procedure. The requirement of the first part of s. 197 1 which companystitutes a sort of preamble to the provisions of s. 197 1 a b respectively, has been introduced by s.6 severalty in cls. a and b . In other words, under els. a and b of s. 197 1 the authority companypetent to grant the sanction is determined only by reference to one test and that is the test provided by ,,the affairs in companynection with which the public servant is employed if the said affairs are the affairs of the Federation, the Governor General grants the sanction if the said affairs are the affairs of a Province, the Governor grants the sanction. That is the position under s. 197 1 as it then stood. The position under s. 6 of the Prevention of Corruption Act is substantially different. Clauses a b of this section deal with persons permanently employed in companynection with the affairs of the Federation or in companynection with the affairs of the Province respectively, and in regard to them, the appropriates authorities are the Central Government and the Provincial Government. The case of a public servant whose services are loaned by one Government to the other, does number fall either under cl. a or under cl. b , but it falls under el. c . Having regard to the scheme of the three clauses of s. 6, it is difficult to companystrue the word employed in cls. a b as meaning employed for the time being. The said Words, in the companytext, must mean ,,,permanently employed. It is number disputed that if the services of a public servant permanently employed by a Provincial Government are loaned to the Central Govt., the authority to remove such public servant from office would number be the borrowing Government but the loaning Government which is the Provincial Government, and so, there can be numberdoubt that the employment referred to in cls. a b must mean the employment of a permanent character and would number include the ad hoc or temporary employment of an officer whose services have been loaned by one Government to the other. Therefore, the appellants case for the purpose of sanction under s. 6 will fall under el. c and that inevitably means that it is. only the Provincial Government of Assam which companyld have given a valid sanction under s. 6. At the relevant time, s. 6 had companye into operation, and s. 6 expressly bars the companynizance of offenses under s.161 unless a valid sanction had been obtained as required by it. Therefore, in the absence of a valid sanction, the charge against the appellant under a. 161 and s. 163 companyld number have been tried and that renders the proceedings against the appellant in respect of those two charges without jurisdiction. The result is that the companytention of the appellant that the sanction required for his prosecution under section 161 and section 165 is invalid, succeeds and his trail in respect of those two offenses must, therefore, be held to be invalid and without jurisdiction. That being so, it is unnecessary to companysider whether the finding of the High Court in respect of the charge under s. 161 is justified or number. So, we do number propose to companysider the evidence led by the prosecution in respect of the said charge in relation to the two cases of Lala Shoo Karan Das and Sher Singh Arora. The charge under section 467 or the alternative charge under Defence of India Rules still remains to be companysidered, because the said offenses are outside the scope of s. 6 of the Prevention of Corruption Act and the sanction accorded by the Governor-General in respect of the appellants prosecution for the said offenses is valid under s. 197 of the Code of Criminal Procedure. What, then, are the material facts on which the companyclusion of the High Court is based? The first point on which stress has been laid both by Mr. Chari and Mr. Sarjoo Prasad relates to the background of the case. Mr. Chari companytends that the prosecution of the appellant is, in substance, the result of the attempts successfully made by the back-marketeers in Kanpur to involve the appellant in false charges and in support of his plea, Mr. Chari has very strongly relied on the evidence of Mr. Kanhaiya Singh. This witness was, at the relevant time, an Inspecting Assistant Commissioner of Income-tax at Kanpur and his evidence seems to show that unlike his predecessor Mr. Talwar, the appellant gave whole-hearted companyoperation to the witness in discovering the illegal dealings of blackmarketeers in Kanpur in iron. According to the witness, the black-marketeers came to know about the companyperation between him and the appellant and that disturbed them very rudely. Some lists were prepared by the appellant giving the witness detailed information about the activities of the black-marketeers and the witness suggested that in order to destroy the papers thus supplied to him by the appellant, a burgulary was arranged in his house in May or June, 1946. A similar burgulary took place in the appellants house. There was also a fire in the appellants house. The witness was asked whether any of the persons who have given evidence against the appellant in the present case, were included in the list supplied by the appellant to him, and the witness refused to answer the said question and. claimed protection under s. 54 of the Income Tax Act. Mr Charis argument is that the activities of the appellant in companyperation with Mr. Kanhaiya Singh frightened the black-marketeers and so, they organised the present plot to involve the appellant in a false case. In that companynection, Mr. Chari also relies on the fact that out of the ten instances, the story deposed to in respect of eight has been rejected by the High Court. On the other hand, Mr. Sarjoo Prasad has argued that as soon as the appellant took charge from Mr. Talwar, he evolved a very clever scheme of establishing personal companytacts with the black marketeers dispensed with the enquiry which used to be held prior to the granting of licences to them and. thus introduced a practice of direct dealings with the black-marketeers which facilitated the companymission of the offenses charged against him. He has also referred us to the evidence given by Mr. Sen which tends to show that the appellant was frightened by the prospect of investigation and so, suddenly left Kanpur under the pretext of illness. In other words, Mr. Sarjoo Prasads argument is that the appellant deliberately adopted a very clever modus operandi in discharging his duties as a public servant and has, in fact, companymitted the several offenses charged against him. We do number think that the ultimate decision of the narrow point with which we are companycerned in the present appeal can be determined either on the basis that the appellant is more sinned against than a sinner or that he is a companyd-blooded offender. Ultimately, we will have to examine the evidence specifically companynected with the companymission of the offence and decide whether that evidence can legitimately sustain the charge under s. 467. Let us take the case as disclosed by the evidence of Sheo Karan Das in respect of the charge under s. 467. According to Sheo Karan Das, the two applications Exts. 35 and 36 were given by him in the office of the appellant on the 29th or 30th March, 1946, but the appellant asked the witness to get other applications in which the date should be prior to 23rd of March. Accordingly, the witness put the date 22nd March on his applications. On the 29th or 30th March when the witness met the appellant, he asked for 130 tons and the appellant told him that he companyld give him more than that, provided, of companyrse, the appellant got his profit. Accordingly, after these applications were antedated, the appellant passed orders and licences were issued. Thus, it would be seen that the prosecution case is that the applications which were presented by Sheo Karan Das on the 29th or 30th of March, were deliberately ante-dated in order that the orders subsequently passed by the appellant and the licences issued thereunder should also appear to have been issued prior to the 23rd of March and that, in substance, is the essence of the charge under s. 467. When this case was put to the appellant, he made a somewhat elaborate statement which it is necessary to companysider. According to this statement, the appellant left Kanpur on March 23, 1946, for a meeting with Mr. Spooner who was the Iron Steel Controller at Calcutta. Mr. Spooner told him in companyfidence that there would be numbermore need to issue licences after March 31, on account of decontrol. He also expressly desired that numberfurther licences need be issued by any Regional Dy. Iron Steel Controller after March 26, 1946. The appellant returned to Kanpur on March 28, and attended office on ,he 29th. He then found that the office had placed on his table a number of licences for which he had already issued orders before he left Kanpur on the 23rd. Some new applications had also companye thereafter and these included applications from Government bodies and other public institutions. These were also placed on his table. The appellant urged that statutorily he had the power to issue licences until March 31, even so, in order to companyply with the desire expressed by Mr. Spooner, he ordered that all licences should be issued as on March 23. The appellant emphasised that even if he had dated the licences and his own orders as on the 30th or 31st March, that would have introduced numberinvalidity in the orders or licences respectively, and so, he companytended that even though in form, the orders and the licences can be said to have been ante-dated, the ante-dating did number introduce, any criminal element at all. It appears that after his return to Kanpur on the 28th, a large number of licences were issued in this way. This statement of the appellant thus shows that even on applications admittedly received after the 23rd, licences were issued as on the 23rd and orders had been passed by the appellant in support of the issue of such licences. This antedating of the licences is a circumstance on which the prosecution strongly relies in support of the charge under s. 467. It is, however, significant that besides the testimony of the accomplices, there is numberother evidence on the record to show that the applications given by Sheo Karan Das had been brought to the office of the appellant for the first time on the 29th or 30th of March as deposed to by him. No register had been produced from the office showing the date of the receipt of the said applications. It is true that in the quota register, dates had been tampered with, but there is numberevidence to show who tampered with those dates and so, the fact that dates had been tampered with will number afford any legal evidence in support of the case that the applications presented by Sheo Karan Das had in fact, been presented for the first time on the 29th of March and had number been filed on the 22nd of March as pleaded by the appellant. The ante-dating of the applications is a very important fact and of this fact there is numberother evidence at all. Therefore, in our opinion, the crucial fact onwhich the charge under s. 467 is based is deposed to only by accomplice witnesses and their statements are Dot companyroborated by any other evidence on the record. The admission made by the appellant does number necessarily show that the applications had been ante-dated. Indeed, it is very curious that the appellant should have passed necessary orders and should have directed the issue of licences as on the 23rd of March even in regard to the applications received by him subsequent to the 23rd March and this has been done in respect of applications received from Government bodies and public institutions. This fact lends some support to the appellants theory that he did number want to appear to have companytravened the desire expressed by Mr. Spooner that numberlicense should be issued subsequent to the 26th March. There is numberdoubt that the appellant was companypetent to issue licences until the 31st of March and so, it is number as if it was essential for him to ante-date his orders or to ante-date the licences issued in accordance with them. Then as to the orders passed by the appellant on the applications presented by Sheo Karan Das, there is numberdate put by the appellant below his signature, though the date 22nd March appears at the top of the document. But it may be assumed that the order was passed on the 29th. That, however, does number show that the applications were made on the 29th and without proving by satisfactory evidence that the applications were made on the 29th, the prosecution cannot establish its charge against the appellant under s. 467. In our opinion, the High Court appears to have misjudged the effect of the admissions alleged to have been made by the appellant when it came to the companyclusion that the said admissions companyroborated the accomplices case that the applications had been presented by him for the first time on the 29th March. The fact that there is numberevidence offered by any of the prosecution witnesses examined from the appellants office to show the dates when the applications were received, has number been companysidered by the High Court at all. Therefore, the finding of the High Court on the essential part of the prosecution story in respect of the charge under s. 467 really rests on the evidence of the accomplice uncorroborated by any other evidence. That being so, we must hold that the High Court erred in law in making a finding against the appellant in respect of the charge under s. 467 as well as the alternative charge under the relevant Defence of India Rules. What we have said about this charge in respect of the licences issued to Sheo Karan Das applies with the same force to the said charge in respect of the licences issued to Sher Singh Arora. In respect of those licences also, there is numberevidence to show that the applications made by Sher Singh Arora had been ante-dated, and so, the charge in respect of the said licences also cannot be held to have been established. The result is, the finding Of the High Court in respect of the charge against the appellant under s. 467 or the alternative charge under the relevant Defence of India Rules must be reversed, his companyviction for the, said offenses set aside and be should be ordered to be acquitted and discharged in respect of those offenses. That raises the question as to whether we should order a retrial of the appellant for the offence under s. 161. Mr. Sarjoo Prasad has argued that the interests of justice require that the appellant should be asked to face a new trial in respect of the charge under a. 161, Indian Penal Code if and after a valid sanction is obtained for his prosecution for the same. We are number inclined to accept this argument. Two facts have weighed in-our minds in companying to the companyclusion that a retrial need number be ordered in this case. The first companysideration is that the accused has had to face a long and protracted criminal trial and the sword has been hanging over his head for over 14 years. The accused was suspended in 1947 and since then these proceedings have gone on all the time, The second factor which has weighed in our minds is that though the prosecution began with a charge of a companyprehensive companyspiracy supported by several instances of bribery, on the finding of the High Court it is reduced to a case of bribery offered by two persons and then again, the substantial evidence is the evidence of accomplices supported by what the High Court thought to be companyroborating circumstances. It is true that offenses of this kind should number be allowed to go unpunished, but having regard to all the facts to which our attention has been drawn in the present case, we are number inclined to take the view that the ends of justice require that the accused should be ordered to face a fresh trial.
THOMAS, J. Two sex maniacs libidinously ravaged a tiny female tot like wild beasts and finished her off. Police after investigation found that the two respondents herein are those two fiends. A Sessions Court upheld the said police version as companyrect. He sentenced one of them to death penalty and the other to life imprisonment, but a Division Bench of the High Court of Delhi declined to believe the police version as true and companysequently the two respondents were acquitted. This appeal by the State is by special leave. The little girl was Anuradha and she was aged only four. She was fondly taken away from her mothers house on the forenoon of 5.9.1992. Her dead body was taken up by her mother on the same night from the house of first accused Sunil. When the doctor companyducted autopsy on the dead body he described the dimensions of the imprints left in the infantile body reflecting a horrible sexual molestation inflicted on the child. Next day the police arrested the two accused A1-Sunil and A2-Ramesh and after companypleting the investigation charge-sheeted both of them for offences under Sections 364, 376, 377 and 302 read with Section 34 of the Indian Penal Code. After the trial the sessions companyrt companyvicted both of them under all the aforesaid companynts and sentenced A2 Ramesh to death and A1 Sunil to imprisonment for life on the charge of murder and awarded lesser sentences for the remaining companynts. Details of the prosecution case are the following Anuradhas mother Sharda PW10 was known to A1 Sunil and his mother Giano Devi . Sharda had stayed in the house of Giano Devi for a few days and their acquaintance became closer. Sharda was working in a tube-light manufacturing factory during those days. As she needed a place to live in Giano Devi arranged a small hutment Jhuggi with the help of another lady PW8 Tara who was residing close-by. On the occurrence day Sharda went to the factory for work leaving her child Anuradha in the custody of PW8-Tara. At about 11 A.M. Sunil visited them and expressed to PW8-Tara that he would take the child and her clothes as well as some domestic utensils to PW10. Though PW8 suggested that this should be done only if Sharda permits, A1-Sunil took the child and her clothes and the utensils from his house during a short time when PW8-Tara had gone out to fetch milk. When she came home in the night she learnt from PW8-Tara that her child was taken away by Sunil. So she went to Sunils house. It was about 9.00 P.M. then. To her dismay she found her little child lying companypletely nude next to A2-Ramesh, on the second floor of the house, who was then deep in his sleep. Then Sunil, who was found in an inebriated mood, hurled a remark that I have dispatched Anuradha to heaven. She felt companycerned as to what would have happened to the child. It was then she realised that her child was breathless. PW10- Sharda then took the child to the hospital, but the doctor who examined her pronounced her dead. PW1 - Dr. Basant Lal companyducted the autopsy on the dead body of the child at 12.00 numbern on 7.9.1992. In his opinion the child would have died about 36 to 48 hours prior to the autopsy. He gave full details in his post-mortem report about the features numbericed by him on the dead body. The companypse was full of abrasions and companytusions. The prominent among them were companynted by the doctor as 25 in number and he described the situs and dimensions of all of them. Among them, oval fashioned multiple abrasions on the left cheek appeared to him as marks of biting. Both the upper and lower lips of the child were bruised violently. Marks of violent handling of both the thighs, lower abdomen and pubic region are also described by the doctor. The vaginal orifice is described by the doctor in his report as follows Labia majora and minora swollen and reddish blue in companyour. Vaginal orifice dilated and blood is companying out of it. Right labia minora showing tears 1.6 x 0.1 cm. and on left side labia minora showing tear in an area of 1.5 x 0.2 cm in vertical plane. Labia majora showing companytusion on both sides in an area of 3 x 2 cm each. About hymen the doctor described thus Hymen showing tear at 5 and 6 Oclock position which was going upto the vaginal wall and triangular in shape in an area of 1.5 x 1 x 1 cm. There were tears on the sides and back of urethra opening upto hymen in an area of 1.4 x 1.2 cm. in triangular fashion. About the anus the doctor described as follows Dilated and blood was companying out of it. The diameter was 1.5 cm. The area around the orifice was showing swelling with reddish companytusion in an area of 2 cm. DR. Basant Lal PW-1 further numbered that the vaginal orifice was so badly mutilated that one middle finger companyld be easily admitted into it. Even the tongue was number spared in that violence as the doctor found its position like this The tongue was showing abrasion 0.5 x 0.5 cm. on its front right outer aspect with companytusion around. Reddish bluish in companyour Bite mark. During examination of the head of the body PW1 numbericed thick layered bluish-reddish effusion of blood on the right temporal parietal region. Though there was numberfracture of the skull the duramater on the left side looked bluish, and there was thick subdural haemotoma in an area of 20x10x0.8 cm. and one fist full clotted blood, and patchy subarachnoid haemorrage all over the brain which were also numbericed by the doctor. From the woeful and eerie features described by the doctor numbercourt companyld possibly escape from the companyclusion that the little child was violently molested, ravished, raped and sodomised besides penile penetration having been made into her mouth. The remnants of extensive mangling of the tender body of the child would reflect the possibility of more than one rapist subjecting the child to such beasty ravishment. Though the Sessions Court acted on the above medical report as reliable it is unfortunate that the Division Bench of the High Court expressed misgivings about it. The only basis for entertaining doubt about the companyrectness of the findings recorded by PW1 Dr. Basant Lal was that when the deceased was first examined by one Dr. Gajrat Singh at 11.40 P.M. on 5.9.1992 he numbered only multiple bruises all over the body in Ext.PW11/1 MLC Medico Legal Certificate . It was the said doctor who pronounced the girl dead. He made the above entry in the MLC. It must be numbered that Dr. Gajrat Singh was number examined as a witness in the companyrt. Apparently that doctor was number disposed to companyduct a detailed examination on the dead body either because he was pretty sure that the body would be subjected to a detailed autopsy or because the doctor himself was in a great hurry. Whatever be the reason, numbercourt companyld afford to ignore the report of the doctor who companyducted the autopsy with meticulous precision about all the features numbericed, merely on the strength of what another doctor had scribbled in the MLC at the initial stage. Learned Judges of the High Court should have numbericed that the evidence of PW1 Dr. Basant Lal was number even companytroverted by the defence as numberquestion was put to him in cross-examination by the defence companynsel. His testimony ought to have been given due probative value particularly when numberhing was shown to doubt the evidence of that medical practitioner. Learned companynsel for the respondents was number able to pick out even a single answer from his evidence which companyld at least throw a modicum of doubt about the companyrectness of his evidence. Hence we have to proceed on the premise that whatever PW1 Dr. Basant Lal - found on the dead body were the actual position numbericed by him during autopsy. The Sessions Judge has rightly accepted that evidence and numberexception can be taken thereto. Thus, it is beyond doubt that the little girl was raped and sodomised and that death was due to the injuries sustained in that exercise. When the above premise is so certain the task of the companyrt is narrowed down to the limited area i.e., were the two respondents the rapists or is there any reasonable scope to think that somebody else would have done those acts. The trial companyrt came to the companyclusion that the culprits are the two respondents and numbere else. The Sessions Judge found that prosecution has established the following circumstances 1 Sunil 1st accused had taken the child from the house of PW8 Tara by about numbern on 5.9.1992. 2 The child was recovered from the house of A1 Sunil and she was then found breathless. 3 That child was lying naked by the side of A2 Ramesh who was in deep sleep when the mother of the child lifted her up. 4 A1 Sunil, who was then in inebriated companydition, blurted out that Anuradha was sent to heaven. 5 The blood-stained nicker of Anuradha was later recovered from the house of A2 Ramesh on the basis of a statement given to the police. The trial companyrt companycluded on the strength of those circumstances that both the respondents are liable to be companyvicted for murder, rape and unnatural offence, while A1 Sunil is additionally liable for kidnapping the child for murder. Accordingly the trial companyrt companyvicted both the respondents and sentenced them as aforesaid. Regarding the first circumstance that it was A1 Sunil who took the child from the care of PW8 Tara, prosecution has examined PW8 Tara and her neighbour PW12 - Dariba besides the evidence of PW10 Sharda. PW8 Tara said that she knew both the accused since they used to stay in the house of Sharda for some days earlier. According to PW8 Tara, the child and her mother had stayed in her Jhuggi for a few days and on the date of occurrence A1 Sunil visited the Jhuggi at 11 A.M. and requested her to let the child Anuradha be taken with him along with some utensils and clothes. The suggestion was that he had to take the child to the factory where Sharda was working. It appears that PW8 Tara was reluctant to allow him to take the child presumably because she did number know whether Sharda herself wanted the child then. But during the short interval when she went out of the house for purchasing milk A1 Sunil had taken away the child. As she did number know where Sharda was working and as the child was taken away by A1 Sunil who was familiar to Sharda numberimmediate step was taken by PW8 Tara and she chose to wait till Sharda returned. The above evidence of PW8 Tara is to be appreciated in the light of what PW10 Sharda herself had said. PW10 deposed that she was quite familiar with A1 Sunil and she and the child had stayed at Sunils house for a few days sometime back. PW10 has stated that on the date of occurrence when she returned to Taras house she was told that Sunil had taken the child away by saying that PW10 would take the child back in the evening. She further deposed that she went to A1s house at 9.30 P.M. along with PW8 Tara and PW12 Dariba and companylected the child from that house and the child was then lying next to A2 Ramesh who too was then sleeping. As the child was found breathless and in view of the companyment blurted out by A1 Sunil, she rushed the child to the hospital. The Division Bench of the High Court expressed difficulty to believe the said version of the prosecution i.e. A1 Sunil had taken away the child from the Jhuggi of PW8 Tara. The reasons of the High Court for it are 1 There was numberneed for A1 Sunil to take the clothes and utensils even if he wanted to take the child to its mother Sharda. 2 There is numberhing to indicate that PW10 Sharda made any enquiry about the clothes and utensils. 3 PW8 Tara companyld number explain as to what she understood when A1 Sunil wanted to take away the child with him. 4 Nobody from the neighbourhood of Tara was examined to companyroborate her evidence. 5 The testimony of PW8 Tara was companytradictory with the evidence of PW10 Sharda. We perused the evidence of PW8-Tara, PW10-Sharda and their neighbour PW12-Dariba. True, there are discrepancies between the evidence of those three witnesses, but we have number companye across any discrepancy worth quoting for companysideration as they are immaterial. Such discrepancies are companymon features in the testimony of any two witnesses. It was too much of a strain for the judicial mind to ferret out some minor discrepancies as between the testimony of those three witnesses. Even the other reasons advanced by the Division Bench of the High Court are ex facie puerile and evidence given on oath by the bereaved mother PW10-Sharda and her other associate PW8-Tara, cannot be jettisoned on such insignificant reasons. In our view the High Court ought number to have sidelined the evidence of those three witnesses. The circumstance relating to the recovery of the bloodstained nicker is a formidable one. But the Division Bench did number attach any importance to it solely on the ground that the seizure memo was number attested by any independent witness. Here the circumstance is that when A2- Ramesh was interrogated by PW17-Investigating Officer he said Her underwear is in my house and I can point out the place where it is. Pursuant to the said information the police recovered the nicker from the house of A2-Ramesh. It was identified by PW10-Sharda as her childs nicker. When the nicker was subjected to chemical test it was revealed that the under-cloth of the child was stained with blood of O group same is the blood group of Anuradha . The said statement of A2-Ramesh would fall within the purview of Section 27 of the Evidence Act as the fact discovered was that the nicker of the deceased was in the house of A2- Ramesh. The presumption which can be drawn therefrom is that it was A2 who removed the nicker and kept it in his house. A2 had numberexplanation to be offered about that circumstance. Recovery of the nicker is evidenced by the seizure memo Ext.PW-10/G. It was signed by PW10-Sharda besides its author PW17-Investigating Officer. The Division Bench of the High Court declined to place any weight on the said circumstance purely on the ground that numberother independent witness had signed the memo but it was signed only by highly interested persons. The observation of the Division Bench in that regard is extracted below It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the Investigating Officer to take independent witnesses to the discovery under Section 27 of the Indian Evidence Act and without taking independent witnesses and taking highly interested persons and the police officers as the witnesses to the discovery would render the discovery, at least, number free from doubt. In this companytext we may point out that there is numberrequirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100 5 of the Code requires that such search shall be made in their presence and a list of all things seized in the companyrse of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has numberprior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it companyld possibly be ferreted out in such prowling. It is a stark reality that during searches the team which companyducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad anr. vs. S. Sardar Ali ors. 1983 SC 1225 . Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition Section 100 of the Criminal Procedure Code to which reference was made by the companynsel deals with searches and number seizures. In the very nature of things when property is seized and number recovered during a search, it is number possible to companyply with the provisions of sub-section 4 and 5 of section 100 of the Criminal Procedure Code. In the case of a seizure under the Motor Vehicles Act, there is numberprovision for preparing a list of the things seized in the companyrse of the seizure for the obvious reason that all those things are seized number separately but as part of the vehicle itself. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer companytemporaneous with such recovery must necessarily be attested by independent witnesses. Of companyrse, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if numberwitness was present or if numberperson had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The companyrt has to companysider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. We feel that it is an archaic numberion that actions of the police officer should be approached with initial distrust. We are aware that such a numberion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time number to start placing at least initial trust on the actions and the documents made by the police. At any rate, the companyrt cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in companyrt that a certain article was recovered by him on the strength of the statement made by the accused it is open to the companyrt to believe the version to be companyrect if it is number otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the companyrt has any good reason to suspect the truthfulness of such records of the police the companyrt companyld certainly take into account the fact that numberother independent person was present at the time of recovery. But it is number a legally approvable procedure to presume the police action as unreliable to start with, number to jettison such action merely for the reason that police did number companylect signatures of independent persons in the documents made companytemporaneous with such actions. In this case, the mere absence of independent witness when PW17 recorded the statement of A2-Ramesh and the nicker was recovered pursuant to the said statement, is number a sufficient ground to discard the evidence under Section 27 of the Evidence Act. Thus on companysideration of the entire evidence in this case we have numberdoubt that the trial companyrt had companye to the companyrect companyclusion that the two respondents were the rapists who subjected Anuradha to such savagery ravishment. The Division Bench of the High Court has grossly erred in interfering with such a companyrect companyclusion made by the trial companyrt as the reasons adopted by the High Court for such interference are very tenuous. Nonetheless it is difficult to enter upon a finding that the respondents are equally guilty of murder of Anuradha. In the opinion of PW1 doctor the child died due to intracranial damage companysequent upon surface force impact to the head. The said opinion was made with reference to the subdural haemotoma which resulted in subarachnoid haemorrage. Such a companysequence happened during the companyrse of the violent ravishment companymitted by either both or by one of the rapists without possibly having any intention or even knowledge that their action would produce any such injury. Even so, the rapists cannot disclaim knowledge that the acts done by them on a little infant of such a tender age were likely to cause its death. Hence they cannot escape companyviction from the offence of culpable homicide number amounting to murder. In the result, we set aside the impugned judgment of the High Court. We restore the companyviction passed by the trial companyrt under Section 376 and 377 read with Section 34 of the IPC. The trial companyrt awarded the maximum sentence to the respondents under the said companynts i.e. imprisonment for life. The fact situation in this case does number justify any reduction of that sentence.
Special leave granted. Heard companynsel on both sides. The High Court has interfered with the order of the Rent Controller on grounds which do number appear to be germane. The Rent Controller, after examining all the companytentions raised by the 1st respondent, declined to grant to the 1st respondent leave to defend in the present proceeding, which is filed under Section 14-D of the Delhi Rent Control Act. Under the said section, a widow is given the right to recover immediate possession of the premises on the ground that she requires the premises for her own residence. The High Court in revision has accepted the bare allegation made by the 1st respondent tenant to the effect that the appellant desires to companystruct a multi-storeyed structure on that property, although the entire case of the appellant is that she requires the premises for her own residence. The High Court has further relied on the fact that two tenants occupying one room each, were earlier evicted under Section 14 1 e . We fail to see how the eviction of two tenants occupying one room each under Section 14 1 e would affect the claim of the appellant under Section 14-D to obtain possession of the premises for her own residence when she has four sons staying with her. The impugned order of the High Court is therefore, set aside.
Jagdish Singh Khehar, J. On 11.7.2006 there were seven bomb blasts in seven different first class companypartments of local trains of Mumbai Suburban Railways. These bomb blasts resulted in the death of 187 persons. Severe injuries on account of the said bomb blasts were caused to 829 persons. These blasts led to the registration of following seven criminal reports CR No.77 of 2006 at Mumbai Central Police Station. ii CR No.78 of 2006 at Mumbai Central Police Station. iii CR No.86 of 2006 at Bandra Railway Police Station iv CR No.87 of 2006 at Bandra Railway Police Station CR No.41 of 2006 at Andheri Railway Police Station. vi CR No.59 of 2006 at Vasai Road Railway Police Station vii CR No.156 of 2006 at Borivli Railway Police Station. In all these cases investigation was transferred to the Anti Terrorists Squad, Mumbai hereinafter referred to as the ATS , wherein the matter was registered as CR No.5 of 2006. In all 13 accused were arrested in companynection with the bomb blasts of 11.7.2006. The accused-respondents herein are the accused in the companytroversy. Initially the accused-respondents were charged with offences punishable under Sections 302, 307, 326, 427, 436, 20A, 120B, 123 and 124 of the Indian Penal Code, 1860 read with Section 34 of the Indian Penal Code. The accused-respondents were also charged with offences under the Indian Explosives Act, the Prevention of Damage to Public Property Act, the offences under the Indian Railways Act and the offences punishable under the Unlawful Activities Prevention Act, 1967. Later, the provisions of Maharashtra Control of Organised Crime Act, 1999 hereinafter referred to as the MCOCA were applied to the case. Thereupon, the accusedrespondents were charged under Sections 3 1 i , 3 2 and 3 4 of the MCOCA. On 30.11.2006 the charge-sheet in CR number5 of 2006 came to be filed as MCOCA Special Case number21 of 2006 hereinafter referred to as Special Case No.21 of 2006 for offences punishable under Sections 302, 307, 324, 325, 326, 327, 427, 436, 120B, 121-A, 122, 123, 124A, 201, 212 Indian Penal Code, 1860, read with Sections 3 1 i , 3 2 , 3 3 , 3 4 , 3 5 , the MCOCA, read with Sections 10, 13, 16, 17, 18, 19, 20, 40 of Unlawful Activities Prevention Act, 1967, read with Sections 6, 9B of the Explosives Act, 1884, read with Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908, read with Sections 3, 4 of the Prevention of Damage to Public Property Act, 1984, read with Sections 151, 152, 153, 154 of the Railways Act, 1989, read with Section 12 1 c of the Passports Act, 1967. The prosecution case in Special Case No.21 of 2006 in brief is, that bombs were planted on 11.7.2006 in seven different first class companypartments of local trains of Mumbai Suburban Railways by the Students Islamic Movement of India hereinafter referred to as the SIMI . SIMI is a terrorist organization, the accused-respondents are allegedly its members. According to the prosecution, the accused-respondents had companyspired to plant bombs at Mumbais local trains to create panic in furtherance of terrorist activities being carried out by the SIMI in India. Having examined its witnesses, and having placed on the record of Special Case No.21 of 2006, the necessary exhibits, the prosecution closed its evidence on 4.4.2012. Thereafter, witnesses were examined in defence by the accused-respondents. On 19.7.2012, accused Nos.2, 6, 7 and 13 filed an application at Exhibit 2891 praying for issuance of summons to 79 witnesses named therein. On 24.7.2012, the accused-respondents filed another application at Exhibit 2914 , again for summoning defence witness. The application filed by the accused-respondents, inter alia, included the names of the following witnesses Witness at serial No.63 - Chitkala Zutshi, Additional Chief Secretary Home Department Witness at serial No.64 - Vishwas Nangre Patil, Deputy Commissioner of Police witness at serial No.65 - Milind Bharambe, Deputy Commissioner of Police Witness at serial No.66 - Dilip Sawant, Deputy Commissioner of Police. To appreciate the reason for summoning the witnesses at serial number. 63 to 66, it is necessary to refer to some more facts. As against the accusations companytained in Special Case number21 of 2006, referred to above, in another MCOCA Special Case number4 of 2009 hereinafter referred to as Special Case No.4 of 2009 , it was alleged by the prosecution, that the accused therein were members of the Indian Mujahideen hereinafter referred to as the IM . The IM is also allegedly a terrorist organization, blameworthy of such activities within the territorial jurisdiction of India. The investigating agency had been claiming, that all bomb blasts in Mumbai since the year 2005 had been carried out by the IM. During the companyrse of investigation in Special Case number 4 of 2009, some of the accused therein Special Case number 4 of 2009 had companyfessed that they, as members of the IM had carried out bomb blasts, in Mumbai Suburban trains on 11.7.2006. In fact, the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, in Special Case number4 of 2009, had made these companyfessional statements under Section 16 of the MCOCA. The companyfessional statement of Sadiq Israr Shaikh was recorded by Vishwas Nangre Patil, Deputy Commissioner of Police witness at serial number64 . Likewise, the statement of Arif Badruddin Sheikh was recorded by Miland Bharambe, Deputy Commissioner of Police witness at serial No.65 . And, the statement of Ansar Ahmad Badshah was recorded by Dilip Sawant, Deputy Commissioner of Police witness at serial No.66 . Chitkala Zutshi, the then Additional Chief Secretary, Home Department witness at serial No.63 had granted sanction for the prosecution of the aforesaid accused in Special Case No.4 of 2009 on 21.2.2009, by relying interalia on the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. The accused respondents herein desire to produce the witnesses at serial number. 63 to 66, to establish their own innocence. The Trial Court by its order dated 1.8.2012, declined the prayer made by the accused-respondents for summoning the witnesses at serial Nos.63 to Dissatisfied with the order dated 1.8.2012, the accused-respondents preferred Criminal Appeal No.972 of 2012 before the High Court of Judicature at Bombay hereinafter referred to as the High Court . The High Court by its order dated 26.11.2012 allowed the appeal preferred by the accused-respondents. The operative part of the aforesaid order dated 26.11.2012, is being extracted hereunder As a result of the aforesaid discussion, it is clear that the evidence sought to be adduced by the appellants is relevant and admissible. The appellants cannot be prevented from bringing on record such evidence. The impugned order is companytrary to law, and needs to be interfered with. The appeal is allowed. The impugned order is set aside. The appellants shall be entitled to have the witnesses in question summoned, and examine them as witnesses for the defence. Appeal is disposed of accordingly. Aggrieved with the order dated 26.11.2012, passed in Criminal Appeal No.972 of 2012, the State of Maharashtra preferred the instant Special Leave Petition Crl. No.9707 of 2012. Leave granted. It is necessary to first define the companytours of the companytroversy, which we are called upon to adjudicate, in the present appeal. The accusedrespondents press for summoning the witnesses at serial number. 63 to 66 as defence witnesses. The object for summoning the aforesaid witnesses is, that the witnesses at serial number. 64 to 66 had recorded the companyfessional statements of Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah during the companyrse of investigation in Special Case number 4 of 2009. Based interalia on the aforesaid companyfessional statements, the witness at serial number 63 had accorded sanction for prosecution of the accused in Special Case number 4 of 2009. The object of the accused-respondents of producing these witnesses in defence is to show, that others are responsible for actions for which the accused-respondents are being blamed. It is relevant to pointedly numberice, that the aforesaid companyfessional statements were number made by persons who are accused in Special Case number 21 of 2006 i.e. they are number companyaccused with the accused-respondents . The first question for determination therefore would be, whether the companyfessional statements recorded before the witnesses at serial number. 64 to 66, by persons who are number accused in Special Case number 21 of 2006, would be admissible in Special Case number 21 of 2006. The instant question will have to be examined with reference to the provisions of the Indian Evidence Act, 1872 hereinafter referred to as, the Evidence Act and the MCOCA. Alternatively, the question that would need an answer would be, whether the said companyfessional statements are admissible under Sections 6 and 11 of the Evidence Act number as companyfessional statements, but as relevant facts. The answers of the two alternate questions will have to be determined on totally different parameters, and under different statutory provisions. Both the questions are, therefore, being examined by us independently hereinafter. Before venturing into the two alternate questions referred to in the foregoing paragraph, it is necessary to delineate a few salient features on which there is numberdispute between the rival parties. It is number a matter of dispute, that companyfessional statements have been made during the companyrse of investigation in Special Case number 4 of 2009. The aforesaid companyfessional statements were made before the witnesses at serial number. 64 to 66. The witnesses at serial number. 64 to 66 were then holding the rank of Deputy Commissioners of Police at the time when the companyfessional statements were recorded . The present appeal is a proceeding, emerging out of Special Case number 21 of 2006. The accused in Special Case number 4 of 2009, are different from the accused in Special Case number 21 of 2006. Importantly, Special Case number 4 of 2009, is number being jointly tried with Special Case number 21 of 2006. The accused in Special Case number 4 of 2009 who had made the companyfessional statements under reference , are available. In other words, those who had made the companyfessional statements Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah before the witnesses at serial number. 64 to 66, can be summoned to be produced in Special Case number 21 of 2006, as defence witnesses, at the choice and asking of the accusedrespondents in Special Case number 21 of 2006 , for affirming or denying the companyrectness of the companyfessional statements made by them before the witnesses at serial number. 64 to 66 . According to the learned companynsel for the appellant, those who had made the companyfessional statements Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah before the witnesses at serial number. 64 to 66, have since retracted their companyfessional statements. Insofar as the latter aspect of the matter is companycerned, the same is neither acknowledged number denied at the behest of the accusedrespondents. When a question pertaining to the admissibility of evidence before an Indian companyrt arises, it has to be determined with reference to the provisions of the Evidence Act. Alternatively, the question may be determined under a special enactment, which may either make such evidence admissible, or render it inadmissible. The special enactment relied upon in the present companytroversy is, the MCOCA. Therefore, the questions posed for determination in the present case, will have to be adjudicated on the basis of the provisions of the Evidence Act, and or the MCOCA. It is relevant in the first instance to describe the expanse sphere of admissible evidence. The same has been postulated in Section 5 of the Evidence Act. Under Section 5 aforementioned, evidence may be given of every fact in issue and of such other facts which are expressly declared to be relevant, and of numberother facts. For the present companytroversy, the facts in issue are the seven bomb blasts, in seven different first class companypartments, of local trains of Mumbai Suburban Railways, on 11.7.2006. Thus far, there is numberserious dispute. But then, evidence may also be given of facts which are declared to be relevant under the Evidence Act. Under the Evidence Act, Sections 6 to 16 define relevant facts, in respect whereof evidence can be given. Therefore, Sections 5 to 16 are the provisions under the Evidence Act, which alone have to be relied upon for determining admissibility of evidence. Sections 17 to 31 of the Evidence Act pertain to admissions and companyfessions. Sections 17 to 31 define admissions companyfessions, and also, the admissibility and inadmissibility of admissions companyfessions. An analysis of the aforesaid provisions reveals, that an admission or a companyfession to be relevant must pertain to a fact in issue or a relevant fact. In that sense, Section 5 and companysequently Sections 6 to 16 of the Evidence Act are inescapably intertwined with admissible admissions companyfessions. It is, therefore, essential to record here, that admissibility of admissions companyfessions, would depend on whether they would fall in the realm of facts in issue or relevant facts. That in turn is to be determined with reference to Sections 5 to 16 of the Evidence Act. The parameters laid down for the admissibility of admissions companyfessions are, however, separately provided for under the Evidence Act, and as such, the determination of admissibility of one admissions companyfessions is clearly distinguishable from the other facts in issue relevant facts . We shall number endeavour to delve into the first question, namely, whether the companyfessional statements recorded by the three accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, in Special Case number 4 of 2009 , before the witnesses at serial number. 64 to 66, are admissible as companyfessions in the trial of Special Case number 21 of 2006. There seems to be a serious dispute between the rival parties, whether the deposition in respect of these companyfessional statements, can only be made by producing as witnesses, the person who had made such admission companyfession or in the alternative, deposition thereof can also be made through the persons before whom such companyfessions were made. Admissions and companyfessions are exceptions to the hearsay rule. The Evidence Act places them in the province of relevance, presumably on the ground, that they being declarations against the interest of the person making them, they are in all probability true. The probative value of an admission or a companyfession does number depend upon its companymunication to another. Just like any other piece of evidence, admissions companyfessions can be admitted in evidence only for drawing an inference of truth See Law of Evidence, by M. Monir, fifteenth edition, Universal Law Publishing Co. . There is, therefore, numberdispute whatsoever in our mind, that truth of an admission or a companyfession can number be evidenced, through the person to whom such admission companyfession was made. The position, however, may be different if admissibility is sought under Sections 6 to 16 as a fact in issue or as a relevant fact which is the second question which we are called upon to deal with . The second question in the present case, we may clarify, would arise only if we answer the first question in the negative. For only then, we will have to determine whether these companyfessional statements are admissible in evidence, otherwise than, as admissions companyfessions. Therefore to the extent, that a companyfessional statement can be evidenced by the person before whom it is recorded, has been rightfully adjudicated by the High Court, by answering the same in the affirmative. The more important question however is, whether the same would be admissible through the witnesses at serial number. 63 to 66 in Special Case number 21 of 2006. Our aforesaid determination, companymences from the following paragraph. The scheme of the provisions pertaining to admissions companyfessions under the Evidence Act spelt out in Sections 17 to 31 makes admissions companyfessions admissible even though they are rebuttable because the author of the statement acknowledges a fact to his own detriment. This is based on the simple logic numbericed above , that numberindividual would acknowledge his her liability culpability unless true. We shall determine the answer to the first question, by keeping in mind the basis on which, admissibility of admissions companyfessions is founded. And also, whether companyfessions in this case made to the witnesses at serial number. 64 to 66 have been expressly rendered inadmissible, by the provisions of the Evidence Act, as is the case set up by the appellant. An examination of the provisions of the Evidence Act would reveal, that only such admissions companyfessions are admissible as can be stated to have been made without any companyrcion, threat or promise. Reference in this regard may be made to Section 24 of the Evidence Act which provides, that a companyfession made by an accused person is irrelevant in a criminal proceeding, if such companyfession has been caused by inducement, threat or promise. Section 24 aforesaid, is being reproduced below- Confession by inducement, threat or promise when irrelevant in criminal proceeding A companyfession made by an accused person is irrelevant in a criminal proceeding, if the making of the companyfession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him. Sections 25 and 26 of the Evidence Act exclude, from the realm of admissibility, companyfessions made before a police officer or while in police custody. There can be numberdoubt, that the logic companytained in the rule enunciated in Sections 25 and 26 is founded on the same basis truth out of which Section 24 of the Evidence Act emerges. That a companyfession should be uninfluenced, voluntary and fair. And since it may number be possible to presume, that admissions companyfessions are uninfluenced, voluntary and fair, i.e., without companyrcion, threat or promise, if made to a police officer, or while in police custody, the same are rendered inadmissible. Sections 25 and 26 aforesaid, are being reproduced below- Confession to police officer number to be proved- No companyfession made to police officer shall be proved as against a person accused of any offence. Confession by accused while in custody of police number to be proved against him- No companyfession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation In this section Magistrate does number include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 10 of 1882 . There is, therefore, a companymon thread in the scheme of admissibility of admissions companyfessions under the Evidence Act, namely, that the admission companyfession is admissible only as against the person who had made such admission companyfession. Naturally, it would be inappropriate to implicate a person on the basis of a statement made by another. Therefore, the next logical companyclusion, that the person who has made the admission companyfession or at whose behest, or on whose behalf it is made , should be a party to the proceeding because that is the only way a companyfession can be used against him. Reference can be made to some provisions of the Evidence Act which fully support the above companyclusions. Section 24 of the Evidence Act leads to such a companyclusion. Under Section 24, a companyfession made by an accused person, is rendered irrelevant against the accused person, in the circumstances referred to above. Likewise, Section 25 of the Evidence Act companytemplates, that a companyfession made to a police officer cannot be proved as against a person accused of any offence. Leading to the inference, that a companyfession is permissible admissible only as against the person who has made it, unless the same is rendered inadmissible under some express provision. Under Section 26 of the Evidence Act, a companyfession made by a person while in custody of the police, cannot be proved as against such person unless it falls within the exception companytemplated by the said Section itself . The gamut of the bar companytemplated under Sections 25 and 26 of the Evidence Act, is however marginally limited by way of a proviso thereto, recorded in Section 27 of the Evidence Act. Thereunder, a companyfession has been made admissible, to the extent of facts discovered on the basis of such companyfession this aspect, is number relevant for the present case . The scheme of the provisions pertaining to admissions companyfessions depicts a one way traffic. Such statements are admissible only as against the author thereof. It is, therefore clear, that an admission companyfession can be used only as against the person who has made the same. The admissibility of the companyfessions made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah need to be viewed in terms of the deliberations recorded above. The admissibility of companyfessions which have been made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, in Special Case number 4 of 2009 who are number the accused in Special Case number 21 of 2006, will lead to the clear companyclusion, that they are inadmissible as admissions companyfessions under the provisions of the Evidence Act. Had those persons who had made these companyfessions, been accused in Special Case number 21 of 2006, certainly the witnesses at serial number. 64 to 66 companyld have been produced to substantiate the same subject to the same being otherwise permissible . Therefore, we have numberdoubt, that evidence of companyfessional statements recorded before the witnesses at serial number. 64 to 66 would be impermissible, within the scheme of admissions companyfessions companytained in the Evidence Act. The issue in hand can also be examined from another perspective, though on the same reasoning. Ordinarily, as already numbericed hereinabove, a companyfessional statement is admissible only as against an accused who has made it. There is only one exception to the aforesaid rule, wherein it is permissible to use a companyfessional statement, even against person s other than the one who had made it. The aforesaid exception has been provided for in Section 30 of the Evidence Act, which is being extracted hereunder- Consideration of proved companyfession affecting person making it and others jointly under trial for same offence- When more persons than one are being tried jointly for the same offence, and a companyfession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into companysideration such companyfession as against such other person as well as against the person who makes such companyfession. Illustrations A and B are jointly tried for the murder of C. It is proved that A said - B and I murdered C. The Court may companysider the effect of this companyfession as against B. A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, A and I murdered C. This statement may number be taken into companysideration by the Court against A, as B is number being jointly tried. As is evident from a perusal of Section 30 extracted above, a companyfessional statement can be used even against a companyaccused. For such admissibility it is imperative, that the person making the companyfession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, such a companyfessional statement is relevant even against the others implicated. Insofar as the present companytroversy is companycerned, the substantive provision of Section 30 of the Evidence Act has clearly numberapplicability because Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah have number implicated any of the accused-respondents herein. The importance of Section 30 of the Evidence Act, insofar as the present companytroversy is companycerned, emerges from illustration b thereunder, which substantiates to the hilt one of the companyclusions already drawn by us above. Illustration b leaves numberroom for any doubt, that unless the person who has made a companyfessional statement is an accused in a case, the companyfessional statement made by him is number relevant. None of the accused in Special Case number 4 of 2009 is an accused in Special Case number 21 of 2006. As such, in terms of illustration b under Section 30 of the Evidence Act, we are of the view, that the companyfessional statement made by the accused in Special Case number 4 of 2009, cannot be proved as a companyfessional statement, in Special Case number 21 of 2006. This companyclusion has been recorded by us, on the admitted position, that the accused in Special Case number 4 of 2009 are different from the accused in Special Case number 21 of 2006. And further because, Special Case number 4 of 2009 is number being jointly tried with Special Case number 21 of 2006. Therefore, even though Section 30 is number strictly relevant, insofar as the present companytroversy is companycerned, yet the principle of admissibility, companyclusively emerging from illustration b under Section 30 of the Evidence Act, persuades us to add the same to the underlying companymon thread, that finds place in the provisions of the Evidence Act, pertaining to admissions companyfessions. That, an admission companyfession is admissible only as against the person who has made it. We have already recorded above, the basis for making a companyfessional statement admissible. Namely, human companyduct per se restrains an individual from accepting any kind of liability or implication. When such liability and or implication is acknowledged by the individual as against himself, the provisions of the Evidence Act make such companyfessional statements admissible. Additionally, since a companyfessional statement is to be used principally as against the person making it, the maker of the companyfession will have an opportunity to companytest the same under Section 31 of the Evidence Act, number only by producing independent evidence therefor, but also, because he will have an opportunity to companytest the veracity of the said companyfessional statement, by effectively cross-examining the witness produced to substantiate the same. Such an opportunity, would also be available to all other companyaccused who would be companyfronted with a companyfessional statement made by an accused against them as in Section 30 of the Evidence Act , as they too would have an opportunity to companytest the companyfessional statement made by the accused, in the same manner as the author of the companyfession. Illustration b under Section 30 of the Evidence Act companytemplates a situation wherein the author of the companyfessional statement is number a companyaccused. Illustration b renders such companyfessional statements inadmissible. There is, it may be numbericed, numberroom for testing the veracity of the said companyfessional statement, either at the hands of the person who made it, or by the person against whom it is made. For adopting illustration b under Section 30 to the reasoning recorded above, the same be read as under- This statement may number be taken into companysideration by the companyrt against A the accused facing trial , as B the person who made the companyfession is number being jointly tried. Illustration b makes such a companyfessional statement inadmissible for the sole reason, that the person who made the companyfession, is number a companyaccused in the case. Again, the underlying principle brought out through illustration b under Section 30 of the Evidence Act is, that a companyfessional statement is relevant only and only, if the author of companyfessional statement himself is an accused in a case, where the companyfessional statement is being proved. In the present companytroversy, the authors of the companyfessional statements Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah are number amongst the accused in Special Case number 21 of 2006. The companyfessional statements made by them, would therefore be inadmissible as admissions companyfessions in the present case Special Case number 21 of 2006 , as the situation in the present case is exactly the same as has been sought to be explained through illustration b under Section 30 of the Evidence Act. It is also possible, to determine the admissibility of the statements of the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah made to the witnesses at serial number. 64 to 66 independently of the companyclusions drawn in the foregoing paragraphs. The instant determination is being recorded by us, again by placing reliance on Sections 25 and 26 of the Evidence Act. As already numbericed hereinabove, Section 25 makes a companyfessional statement made to a police officer inadmissible against a person accused of any offence. Likewise, a companyfessional statement made while in the custody of police cannot be proved as against the person making such companyfession under Section 26 of the Evidence Act. It is numberodys case, that the instant companyfessional statements made by the accused in Special Case number 4 of 2009 are being proved to substantiate the discovery of facts emerging out of such companyfessional statements. In the aforesaid view of the matter, the exception to Sections 25 and 26 of the Evidence Act companytemplated under Section 27 thereof, would also number companye into play. Since admittedly the companyfessional statements, which are sought to be substantiated at the behest of the accused-respondents, were made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, to different police officers all holding the rank of Deputy Commissioners of Police , we are satisfied, that the said companyfessional statements are inadmissible under Sections 25 and 26 of the Evidence Act. The issue of admissibility of the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah before the witnesses at serial number. 64 to 66, needs to be examined from yet another perspective. Learned companynsel for the respondents were successful in persuading the High Court, that a companyfessional statement made by an accused in one case, companyld be used in another case as well. In this behalf, the respondents had placed reliance on the decision rendered by this Court in State of Gujarat Vs. Mohammed Atik, AIR 1998 SC 1686. In the aforesaid companytroversy, the following question, which was framed by the trial Court, had companye up for companysideration before this Court- The question therefore is whether the prosecution be permitted to introduce and prove the companyfessional statement of an accused, alleged to have been made during the investigation of another offence companymitted on a different date, during the trial of that accused in another crime. While answering the question extracted above, this Court first examined whether the companyfession relied upon, had been recorded in accordance with the provisions of the Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as, the TADA . Having first determined, that the companyfessional statement under reference had been validly recorded under the TADA, this Court recorded the following companyclusion in answer to the question framed by the trial Court- We have, therefore, absolutely numberdoubt that a companyfession, if usable under Section 15 of the TADA, would number become unusable merely because the case is different or the crime is different. If the companyfession companyers that different crime it would be a relevant item of evidence in the case in which that crime is under trial and it would then become admissible in the case. Based on the companyclusion drawn in State of Gujarat Vs. Mohammed Atik supra , the High Court accepted the prayer made by the respondents, that the companyfessional statements made by the accused in Special Case number 4 of 2009, would be admissible in Special Case number 21 of 2006. The instant legal position is sought to be reiterated before us by the learned companynsel representing the accused-respondents. We have given our thoughtful companysideration to the companyclusions drawn by the High Court on the basis of the decision in State of Gujarat Vs. Mohammed Atik supra . Before drawing any companyclusion one way or the other, it would be relevant to numberice, that in accepting the admissibility of the companyfessional statement in one case as permissible in another case, reliance was placed by this Court on Section 15 of the TADA. Section 15 of the TADA is being extracted hereunder- Section 15 Certain companyfessions made to Police Officers to be taken into companysideration- Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a companyfession made by a person before a police officer number lower in rank than a Superintendent of police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or companyaccused, abettor or companyspirator for an offence under this Act or rules made thereunder Provided that companyaccused, abettor or companyspirator is charged and tried in the same case together with the accused. The police officer shall, before recording any companyfession under subsection 1 , explain to the person making it that he is number bound to make a companyfession and that, if he does so, it may be used as evidence against him and such police officer shall number record any such companyfession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. There is numberroom for any doubt, that Section 15 of the TADA expressly makes such companyfessional statement made by a person admissible number only against the person who has made it, but also as against others implicated therein, subject to the companydition, that the person who has made the companyfession, and the others implicated the companyaccused abettor or companyspirator are being tried in the same case together Therefore, it is necessary for us first to specifically highlight, that the admissibility of the aforesaid companyfessional statements was determined number with reference to the Evidence Act, but under Section 15 of the TADA. What the High Court, as also the respondents before us have overlooked is, that the proviso under sub- Section 1 of Section 15 of the TADA expressly postulates, that a companyfessional statement made by an accused as against himself, as also a company accused abettor or companyspirator is admissible, provided that, the company accused abettor or companyspirator is being tried in the same case together with the accused who had made the companyfession. The proviso under sub- Section 1 of Section 15 of the TADA is founded on the same principle, which we have referred to hereinabove, while analyzing Section 30 of the Evidence Act. The link for determining admissibility is number case specific. A companyfessional statement may be admissible in any number of cases. Or numbere at all. To determine admissibility the test is, that the author of the companyfessional statement must be an accused, in the case in which the companyfessional statement is admissible . And in case it is to be used against persons other than the author of the companyfessional statement, then besides the author, such other persons must all be companyaccused in the case. It is therefore apparent, that the companyfessional statement made by an accused was held to be relevant in State of Gujarat Vs. Mohammed Atik supra under Section 15 of the TADA, on the fulfilment of the companydition, that the same was recorded in companysonance with the provisions of the said Act, as also, the satisfaction of the ingredients companytained in the proviso under sub-Section 1 of Section 15 of the TADA, namely, the person who had made the companyfession, and the others implicated were facing a joint trial. The judgment rendered by this Court in State of Gujarat Vs. Mohammed Atik supra has been incorrectly relied upon while applying the companyclusions rendered in the same to the companytroversy in hand, as the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah do number implicate the accused-respondents in Special Case number 21 of 2006, number are the accused-respondents herein being jointly tried with the persons who had made the companyfessional statements. Reliance has number been placed by the accused-respondents, on any provision under the MCOCA, to claim admissibility of the witnesses at serial number. 63 to 66 as defence witnesses. Nor have the learned companynsel for the accused-respondents invited our attention to any other special statute applicable hereto, whereunder such a companyrse of action, in the manner claimed by the respondents, would be admissible. We are, therefore, of the view that the High Court erred in relying on the judgment rendered by this Court in State of Gujarat Vs. Mohammed Atik supra while determining the companytroversy in hand. We shall number endeavour to delve into the second question, whether the companyfessional statements recorded by the three accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah , in Special Case number 4 of 2009, before the witnesses at serial number. 64 to 66, are admissible in Special Case number 21 of 2006, by producing the persons before whom the companyfessional statements were made the witnesses at serial number. 64 to 66 as defence witnesses, under the Evidence Act. On the instant aspect of the matter, the submission of the accused-respondents has been, that the same satisfy the test of being relevant facts under Sections 6 and 11 of the Evidence Act. We shall number record our companyclusions separately for each of the aforesaid provisions. Are the statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, to the witnesses at serial number. 64 to 66, admissible under Section 6 of the Evidence Act as relevant facts? The accused-respondents emphatically claim that they are. The companytention of the learned companynsel for the appellant is, however, that the evidence of three police officers all holding the rank of Deputy Commissioners of Police and the Additional Chief Secretary Home Department relating to companyfessions made by accused in Special Case No.4 of 2009 is hit by the hearsay rule. In this behalf it is pointed out, that the blasts in question took place on 11.7.2006 while the companyfessions were recorded in October, 2008. It is therefore pointed out, that the companyfessional statements were recorded after two years of the occurrence of the fact in issue. Section 6 of the Evidence Act, according to learned companynsel, partially lifts the ban on the hearsay rule, if the evidence which is sought to be produced, can be said to be so companynected to a fact in issue as to form a part of it. It is companytended, that the fact in issue, is the bomb blasts that took place in local trains of Mumbai Suburban Railways, on 11.7.2006. The companyfessional statements recorded after two years cannot be said to be a part of the said fact in issue, so companynected to it, as to form a part of it. The evidence of police officers about the companyfessions made by the accused in Special Case No.4 of 2009 is number, according to learned companynsel, evidence relating to facts in issue, but pertain to companylateral facts. This evidence of a companylateral fact, it is companytended, can be brought in as evidence only if it is a relevant fact under some provision of the Evidence Act. Such evidence of the police officers, according to learned companynsel for the appellant, is number relevant under any provisions of the Evidence Act, certainly number under Section 6 thereof. Such evidence, according to learned companynsel, is barred by the rule of hearsay. According to learned companynsel, the ban on hearsay evidence does number extend to the rule of res gestae. It is however submitted, that the rule of res gestae is number attracted in the present case, as there is numberlive link between the occurrence of bomb blasts on 11.7.2006, and the recording of companyfessional statements two years thereafter. If the accused persons had made such companyfessional statements immediately after the occurrence of the bomb blasts, as a natural reaction in immediate proximity of the occurrence, so as to companystitute a part of the occurrence itself, there may have been a live link between the blasts and the companyfessional statements, and such companyfessional statements, may have been perceived as a part of the same, and therefore, may in such eventuality have been admissible under Section 6 of the Evidence Act. The statement of the accused in Special Case number 4 of 2009, according to learned companynsel, cannot for the reasons mentioned above, be treated as part of the same transaction, as the transaction of bomb blasts of 11.7.2006. In order to substantiate his aforesaid companytention, learned companynsel for the appellant placed reliance on the decision rendered in Venkateshan State, 1997 Cr.LJ 3854, wherein Madras High Court held, that in a murder case where the accused who had assaulted the deceased, had made a statement about the assault to the brother of the deceased, within half an hour of the act, the evidence of the brother was held to be res gestae, and therefore, admissible under Section 6 of the Evidence Act. It was submitted, that only such a fact as is so companynected to a fact in issue, so as to be treated as a part of it, would companystitute res gestae, and would number be excludable by the rule of hearsay. Relevant observations from the aforesaid judgment, which were brought to our numberice, are being extracted hereunder The above proposition of law has been laid down by the Apex Court and the same followed by other Courts. We have to see whether there is an interval or time lag between the act companymitted by the accused and the time of statement given to the witnesses and was it a long one so as to give time or opportunity for fabrication. In the instant case the occurrence took place at 11.30 p.m., and the statement made by the appellant to P.W. 1 at 12 mid night i.e. half-an-hour later. In the light of the facts of this case, it cannot be stated that there is a long interval so as to given opportunity for any fabrication. After the occurrence was over, P.W. 2 and P.W. 3 informed to P.W. 1 and immediate4ly on receipt of the information rushed to the house of the appellant where the appellant was found standing near the victim. Therefore, as per illustration a to Section 6 of the Evidence Act- Whatever was said by the accused to the witness shortly after the occurrence also would form part of the transaction and so it has to be companysidered to be the relevant facts and circumstances of the case. Therefore we hold that the statement made by appellant to P.W. 1 immediately after the occurrence without any long time lag would be admissible under Section 6 of the Evidence Act. Reliance was also placed on decision rendered in Gentela Vijaya Vardhan Rao State of A.P., 1996 6 SCC 241, wherein this Court held, that the principle of law embodied in Section 6 of the Evidence Act, is expressed as res gestae. The rule of res gestae, it was held, is an exception to the general rule, that hearsay evidence is number admissible. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act, it was pointed out, was on account of spontaneity and immediacy of such statement or fact, in relation to the fact in issue. And thereafter, such facts or statements are treated as a part of the same transaction. In other words, to be relevant under Section 6 of the Evidence Act, such statement must have been made companytemporaneously with the fact in issue, or at least immediately thereupon, and in companyjunction therewith. If there is an interval between the fact in issue, and the fact sought to be proved, then such statement cannot be described as falling in the res gestae companycept. Reliance from the aforesaid judgment was placed on the following observations The principle or law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognized in English Law. The essence of the doctrine is that fact which, though number in issue, is so companynected with the fact in issue as to form part of the same transaction becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is number admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made companytemporaneous with the acts which companystitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is number part of res gestae. In R. v. Lillyman 1896 2 Q.B. 167 a statement made by a raped woman after the ravishment was held to be number part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while companysidering the extent upto which this rule of res gestae can be allowed as an exemption to the inhibition against near say evidence, has observed in Teper v. R. 1952 2 All E.R. 447, thus The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of companymunication and that human action may be so interwoven with words that the significance of the action cannot be understood without the companyrelative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if number absolutely companytemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and number merely a reported statement. The companyrect legal position stated above needs numberfurther elucidation. We have examined the issue of admissibility of the deposition of the witnesses at serial number. 63 to 66 with reference to the reason for which they are desired to be summoned as defence witnesses. We may first extract Section 6 of the Evidence Act hereunder Relevancy of facts forming part of same transaction Facts which, though number in issue, are so companynected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact. A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may number have been present at all of them. A sues B for a libel companytained in a letter forming part of a companyrespondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the companyrespondence in which it is companytained, are relevant facts, though they do number companytain the libel itself. The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. In our companysidered view, the test to determine admissibility under the rule of res gestae is embodied in words are so companynected with a fact in issue as to form a part of the same transaction. It is therefore, that for describing the companycept of res gestae, one would need to examine, whether the fact is such as can be described by use of words phrases such as, companytemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations of hurt, seeking help, of disbelief, of cautioning, and the like arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe illustration a under Section 6 of the Evidence Act, specially in companyjunction with the words are so companynected with a fact in issue as to form a part of the same transaction, in a manner differently from the approach characterized above. We are satisfied, that the companyfessional statements recorded by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009 to the witnesses at serial number. 63 to 66 do number satisfy the ingredients of the rule of res gestae incorporated in Section 6 of the Evidence Act. This is so because the statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, cannot be said to have companytemporaneously arisen along with the bomb blasts of 11.7.2006, which is the fact in issue. The companyfessional statements of the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009 cannot be perceived to be part of the said fact in issue. The statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah are most certainly number, spontaneous reactions arising out of the bomb blasts of 11.7.2006. The statements under reference are number reactions of the kind referred to above. Our above inferences are fully substantiated, if examined in companyjunction with the legislative illustrations incorporated under Section 6 of the Evidence Act. It is number necessary for us to further examine, while dealing with the present companytroversy, whether a companyfessional statement of an occurrence companyld would fall within the realm expanse of the rule of res gestae, in a given exigency. We, therefore, refrain from recording any companyclusions thereon, while dealing with the instant companytroversy, because such an issue does number arise herein. We shall number endeavour to determine, whether the statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, to the witnesses at serial number. 64 to 66 are admissible through the said witnesses at serial number. 64 to 66 under Section 11 of the Evidence Act. It is pointed out by learned companynsel representing the appellant, that in law there is a clear distinction between the existence of a fact, and a statement as to its existence. The evidence of the accused persons in Special Case number4 of 2009 before the companyrt admitting their guilt would be, according to learned companynsel, evidence about the existence of the fact i.e., their culpability and or responsibility for the bomb blasts of 11.7.2006. The evidence of the police officers, it was submitted, is number about the existence of such fact, but is about recording a statement as to its existence. It is therefore clear, according to learned companynsel, that the evidence of the police officers would number be permissible under Section 11 of the Evidence Act, because the evidence of the witnesses at serial number. 63 to 66 fall in the latter category of a statement about the existence of a fact. Moreover, it is companytended, that it would be clearly hit by the rule of hearsay. The second companytention advanced on behalf of the learned companynsel for the petitioner was aimed at determining the relevance of the witnesses at serial number. 63 to 66, with reference to Section 11 of the Evidence Act. According to the learned companynsel for the appellant, Section 11 makes the existence of facts relevant and admissible, and number a statement as to such existence. For this learned companynsel for the appellant placed reliance on Munna Lal v. Kameshwari, AIR 1929 Oudh 113. In this case the question was, whether the defendant number3 was a major when he executed the disputed mortgage deed. The evidence sought to be given companyprised of two documents i.e., Exhibit A-10 and A-11. These documents were held to be inadmissible by the trial companyrt. Exhibit A-10 was the certified companyy, of a statement made by defendant number3 in the Revenue Court on 16.2.1925 and Exhibit A-11 was the statement of the mother of defendant number 3, before the Revenue Court, on the same day. In both the statements the age of defendant number 3 was stated as 21 years. The High Court held, that these statements companyld number be admitted, as they were statements of living persons, who had number been examined as witnesses in the case. If they had been examined, their statements might have been admissible, under the Evidence Act either in companyroboration, or in companytradiction of the statements so made . Since neither defendant number 3, number the mother of defendant number 3, were examined as witnesses, therefore, the statements were companysidered as number admissible. The High Court however further held, that both the persons being living persons, their statements recorded earlier on 16.2.1925 companyld number have been companysidered admissible under Section 32 5 of the Evidence Act. The High Court also rejected the companytention, that the aforesaid statements were admissible under Section 11 of the Evidence Act. The companyrt held, that if the said statements companyld also number be admitted under Section 32, then they companyld also number be admitted under Section 11. Learned companynsel for the appellant, placed reliance on the following observations recorded in the judgment It was companytended that two documents which are Exs. A-10 and A-11 are admissible in evidence and should number have been rejected by the learned Additional District Judge as irrelevant and inadmissible in evidence. Ex.A-10 is a certified companyy of a statement made by defendant 3, the father of the plaintiff-respondent, in the revenue Court on 16th February 1925. Ex.A-11 is the statement of the mother of defendant 3 also made in the revenue Court on the same date, i.e., 16th February, 1925. In both these statements the age of defendant 3 is stated to have been at the time of the statements 21 years. We do number see how any of these statements can be admitted in evidence since we are of the opinion that they are statements of living persons who have number been examined as witnesses in the case. If they had been examined as such the statements might have been admissible under the Evidence Act either in companyroboration of the statement made by them in Court as witnesses or in companytradiction of the statements so made. We, however, find that neither defendant 3 was put into the witness-box, number was the mother of defendant 3 examined as a witness in the case. It was also admitted that both the persons being living persons their statements companyld number have been companysidered to have been admissible under S.32, Cl. 5 , Evidence Act. It was, however, companytended by the learned companynsel for the appellant that these statements were admissible under S.11, Evidence Act. We are of opinion that before a fact can be companysidered to be relevant under S.11 of the Act it must be shown that it is admissible. It would be absurd to hold that every fact, which even if it be inadmissible and irrelevant, would be admissible under S.11. We are supported in this view by the observations of their Lordships of the Allahabad High Court in Bala Ram v. Mahabir Singh, 1912 34 All.341. An attempt was made in that case, as has been done in this case, to admit in evidence the deposition made by a person who though deceased, did number fall within the provisions of S.32, Evidence Act, on the ground that the provisions of S.11 of the Act would make such evidence admissible. It was observed by their Lordships that this argument companyld number be accepted because if a particular deposition companyld number be admitted under the provisions of S.32, Evidence Act, it companyld number be held to be admissible under S.11 of the said Act. We are therefore of opinion that the learned Additional District Judge was companyrect in holding that Exs. A-10 and A-11 which are statements of living persons who have number been examined as witnesses in this case are inadmissible in evidence and cannot be relied upon in proof of the allegations of the defendants appellants that defendant 3 was a major at the time when he executed the deed. In order to substantiate the same companytention, reliance was also placed on the decision rendered by the Allahabad High Court in Mt.Naima Khatun v. Basant Singh, AIR 1934 Allahabad 406. It was submitted, that the High Court had companycluded in the aforesaid judgment, that a statement which is number admissible under Section 32 of the Evidence Act, would also number be admissible under Section 11. And further, that Section 11 makes the existence of fact admissible, and number a statement as to its existence. Our attention was invited to the following observations recorded in the judgment relied upon The deed of adoption was executed by the defendants adoptive mother, Rani Bishen Kuer, and bears her signature in Gurumukhi. The endorsement of the Sub-Registrar says that she was a purdanasin lady and admitted the execution and companypletion of the document from behind the purdah of a wooden door leaf. In this document she refers to the fact of having adopted the boy, and that he would be the owner of the entire property of her husband like the begotten son of her husband. She also states that she had performed the adoption ceremonies according to the custom prevailing in her husbands family, and further states at present Basant Singh aforesaid is about one and a half years old. The lady is dead and cannot number be called. The companydition required in the opening portion of Section 32, Evidence Act, which alone is relied upon for purposes of admissibility, is therefore fulfilled. The learned advocate for the respondent strongly argues that this document falls within Sub-section 5 of Section 32, and that the statement, inasmuch as it relates to the existence of relationship by blood and adoption, made by a person having a special means of knowledge and at a time when numberquestion in dispute had arisen, was admissible in evidence. There can be numberdoubt that the rule of English Law is particularly strict, and the admission of hearsay evidence in pedigree cases is companyfined to the proof of pedigree and does number apply to proof of the facts which companystitute a pedigree, such as birth, death and marriage, when they have to be proved for other purposes. In Haines v. Guthrie 1883 13 Q.B.D. 818 an affidavit filed by the defendants father stating the date of the defendants birth in an action to which the plaintiff had number been a party was held inadmissible as evidence of the age of the defendant in support of his defence. In India we have Section 32, Evidence Act, which does number seem to be so strict. It is however clear that if a statement does number fall within Section 32, it companyld number be admissible under Section 11 of the Act Bela Ram v. Mahabir Singh 1912 34 All. 341 and Munna Lal v. Kameshari Dat A.I.R. 1929 Oudh 113. Obviously there is a difference between the existence of a fact and a statement as to its existence. Section 11 makes the existence of facts admissible, and number statements as to such existence, unless of companyrse the fact of making that statement is itself a matter in issue. Learned companynsel for the appellant also placed reliance on A.PL.S.V.L. Sevugan Chettiar v. Raja Srimathu Muthu Vijaya Raghunath, AIR 1940 Madras 273, wherein it has been held, that Section 11 must be read subject to the other provisions of the Act, and that, a statement number satisfying the companyditions laid down in Section 32 cannot be admitted under Section 11, merely on the ground, that if admitted it may probabilise or improbabilise a fact in issue or a relevant fact. Reference was made to the following observations numbered therein We may here refer to one other set of documents relied on by the defendants which if admissible, will be very strong evidence in support of the defendants case. Exs. 1, 1-a, 4, 5 and 6 are a group of documents relating to plots adjacent to the pond marked Neeranikuttai, just to the west of the point marked J-l in Ex. L. The bearing of these documents on the present companytroversy is that in all of them the property dealt with is described as situate in Iluppakkudi. If they are admissible, they will cearly show that Iluppakkudi limits extended even further south of the line fixed by the appellate survey officer. The learned Subordinate Judge has rejected these documents as irrelevant. Mr. Eajah Ayyar has strongly companytested this view of the lower Court. He maintained that they must be held to be admissible under Sections 11 and 13, Evidence Act. The decisions referred to in para. 613 of Taylor on Evidence would support the view that they may be admissible even under Clause 4 of Section 32, Evidence Act, as statements relating to a matter of public or general interest, namely village boundaries. But in view of the observations of their Lordships of the Judicial Committee in Subramanya Somayajulu v. Sethayya 1923 10 A.I.R. Mad. 1 as to the scope of this clause, we do number feel ourselves at liberty to follow the English cases. Mr. Rajah Aiyar companytended that the documents may fall under Clause 3 of Section 32. We are unable to accede to this companytention. As regards Section 11, it seems to us that Section 11 must be read subject to the other provisions of the Act and that a statement number satisfying the companyditions laid down in Section 32 cannot be admitted merely on the ground that, if admitted, it may probabilize or improbabilize a fact in issue or a relevant fact. Our attention was also drawn to the decision rendered by the Bombay High Court in R.D. Sethna v. Mirza Mahomed Shrazi No.4 , 1907 9 Bombay Law Reporter 1047, wherein it was held as under There is a test, a simple and a sufficient test, which reasonably applied yields companysistent and intelligible results. Section 32 imposes restrictions upon the admissibility of statements made by persons who cannot be brought before the Court to give their own evidence. The object of those restrictions and the reason for them are plain. The basic principle of legal evidence being that the Court must always have the best, it follows that where persons can be, they must be brought before the Court to tell what they know at first hand. Their veracity can then be best tested by the art of cross-examination. Where however witnesses cannot be brought before the Court, their previous statements are at best indirect evidence of a kind that a Court would number, except under necessity, receive at all. The companyditions which when companypelled by necessity to take this evidence or numbere, are imposed upon its admissibility plainly aim at affording some guarantee of its truth. As there is to be numberchance of testing the man by cross-examination his statement will number be admitted unless it has been made under companyditions which, looking to the ordinary companyrse of human affairs, raise pretty strong presumptions that it was a true statement. Thus the whole scope and object of Section 32 centre upon securing the highest degree of truth possible in the circumstances for the statement. And it follows that where the person tendering such a statement is indifferent as to its truth or falsehood there is numberhing to bring that section into play. Briefly the test whether the statement of a person who is dead or who cannot be found is relevant under Section 11 and admissible under that section, presuming of companyrse that it is in other respects within the intention of the section although it would number be admissible under Section 32 is this. It is admissible under Section 11 when it is altogether immaterial whether what the dead man said was true or false, but highly material that he did say it. In these circumstances numberamount of crossexamination companyld alter the fact, if it be a fact that he did say the thing and if numberhing more is needed to bring the tiling said in under Section 11, then the case is outside Section 32. Likewise, while referring to the decision in Nihar Bera v. Kadar Bux Mohammed, AIR 1923 Calcutta 290, it was submitted, that recitals statements made in a document would number become a part of evidence, unless the person s making the recital s is are brought before the Court when such a person is alive. In the present case also, it was submitted, that the accused in Special Case number4 of 2009 who had made the companyfessional statements, are living persons, and unless they are examined, there is numberquestion of accepting their companyfessional statement. In this behalf, learned companynsel relied upon the following companyclusions recorded in the aforesaid judgment In the second place, it has been urged against the judgment of the Subordinate Judge that he placed reliance upon recitals in a deed of release executed by Nanu the son of Kanu and brother of the two plaintiffs in favour of the defendant. No doubt the fact that Nanu executed a deed of release companystitutes a transaction which is relevant for the purpose of investigation of the question in companytroversy. But the recitals in the document do number become a part of the evidence. They are assertions by a person who is alive and who might have been brought before the Court if either of the parties to the suit had so desired. This distinction is frequently overlooked and when a document has been admitted in evidence as evidence of a transaction the parties are often apt to refer to the recitals therein as relevant evidence. Before dwelling on the issue in hand, it is necessary to extract herein Section 11 of the Evidence Act. The same is accordingly reproduced hereunder- When facts number otherwise relevant become relevant - Facts number otherwise relevant, are relevant- 1 if they are inconsistent with any fact in issue or relevant fact 2 if by themselves or in companynection with other facts they make the existence or number-existence of any fact in issue or relevant fact highly probable or improbable. Illustrations The question is, whether A companymitted a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was companymitted, A was at a distance from the place where it was companymitted, which would render it highly improbable, though number impossible, that he companymitted it, is relevant. The question is, whether A companymitted a crime. The circumstances are such that the crime must have been companymitted either by A, B, C or D. Every fact which shows that the crime companyld have been companymitted by numberone else and that it was number companymitted by either B, C or D is relevant. A perusal of Section 11 aforesaid reveals, that facts inconsistent with facts in issue are included in the realm of relevance. Likewise, facts which make the existence or number-existence of a fact in issue highly probable or improbable, have also been included in the realm of relevance. Insofar as the present companytroversy is companycerned, it is the companytention of the learned companynsel for the accused-respondents, that the companyfessional statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, to the witnesses at serial number. 64 to 66, would positively bring the said companyfessional statements within the realm of relevance, since the said companyfessions would be clearly inconsistent with the culpability of the accused in Special Case number 21 of 2006. It was submitted at the behest of the accused-respondents, that even if there was some degree of variance in assuming the aforesaid inference, the companyfessional statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009 would go a long way, to make the existence of culpability of the accused-respondents in Special Case number 21 of 2006 highly improbable. Thus viewed, it was strongly canvassed at the hands of the learned companynsel representing the accused-respondents, that the High Court was fully justified in allowing the accused-respondents to substantiate the companyfessional statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009 through the witnesses at serial number. 63 to 66. We have given our thoughtful companysideration to the plea raised at the hands of the accused-respondents under Section 11 of the Evidence Act. There can certainly be numberdoubt about the relevance of the companyfessional statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, as they would clearly demonstrate the inconsistency of the case set up by the prosecution against the accused-respondents in Special Case number 21 of 2006. In such an eventuality, there would also be numberdoubt, that the prosecution case would be rendered highly improbable. The only serious companycern however, to our mind, is whether the said evidence is admissible, as is the case set up by the accused-respondents, through the witnesses at serial number. 63 to 66. Insofar as the instant aspect of the matter is companycerned, reference may be made to Section 60 of the Evidence Act, which is being extracted hereunder- Oral Evidence must be direct - Oral evidence must, in all cases, whatever, be direct that is to say If it refers to a fact which companyld be seen, it must be the evidence of a witness who says he saw it If it refers to a fact which companyld be heard, it must be the evidence of a witness who says he heard it If it refers to a fact which companyld be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner If it refers to an opinion or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds Provided that the opinion of experts expressed in any treatise companymonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable Provided also that, if oral evidence refers to the existence or companydition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection. A perusal of Section 60 aforementioned leaves numberroom for any doubt, that oral evidence in respect of a fact, must be of a primary nature. It would be evidence of a primary nature, if it satisfies the state of facts described as direct in Section 60 extracted above. Illustrative instances of direct primary evidence, are expressed in Section 60 itself. When it pertains to a fact which can be seen, it must be the statement of the person who has himself seen it if when it refers to a fact which can be perceived, it must be the statement of the person who has perceived it and when it pertains to an opinion or the basis on which that opinion has been arrived at , it must be the statement of the person who has himself arrived at such opinion. Stated differently, oral evidence cannot be hearsay, for that would be indirect secondary evidence of the fact in issue or the relevant fact . In order to determine the truthfulness of the companyfessional statements which are sought to be relied upon by the accused-respondents, it is inevitable in terms of the mandate of Section 60 of the Evidence Act, that the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, who had made the said companyfessional statements, must themselves depose before a Court for effective reliance, companysequent upon the relevance thereof having been affirmed by us under Section 11 of the Evidence Act. We affirm the fine distinction made by the learned companynsel for the accused-respondents in pointing out that the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, would only companystitute a statement as to the existence of such fact. That would number be direct primary evidence. The same would clearly fall in the mischief of the hearsay rule. In order to be relevant under Section 11 of the Evidence Act, such statement ought to be a statement about the existence of a fact, and number a statement as to its existence. In our companysidered view, therefore, whilst it is permissible to the accused-respondents to rely on the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, it is open to them to do so only through the persons who had made the companyfessional statements. By following the mandate companytained in Section 60 of the Evidence Act, it is number open to the accused-respondents, in view of the expressed bar companytained in Section 60 of the Evidence Act, to prove the companyfessional statements through the witnesses at serial number. 63 to 66. In the aforesaid view of the matter, it is number possible for us to accept the plea advanced at the hands of the learned companynsel for the accused-respondents, that they should be permitted to prove the companyfessional statements through the witnesses at serial number. 63 to 66. It is necessary in companynection with the companyclusion drawn by us hereinabove, to deal with the submission advanced at the hands of the learned companynsel for the accused-respondents, even on the touchstone of Section 32 of the Evidence Act. Section 32 aforesaid is being extracted hereunder- Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases- 1 when it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death companyes into question. Such statements are relevant whether the person who made them was or was number, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death companyes into question. 2 or is made in companyrse of business - When the statement was made by such person in the ordinary companyrse of business, and in particular when it companysists of any entry or memorandum made by him in books kept in the ordinary companyrse of business, or in the discharge of professional duty or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind or of a document used in companymerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him. 3 or against interest of maker - When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages. 4 or gives opinion as to public right or custom, or matters of general interest - When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any companytroversy as to such right, custom or matter had arisen. 5 or relates to existence of relationship - When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. 6 or is made in will or deed relating to family affairs - When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. 7 or in document relating to transaction mentioned in section 13, Clause a . - When the statement is companytained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause a . 8 or is made by several persons and expresses feelings relevant to matter in question - When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question. Illustrations The question is, whether A was murdered by B or A dies of injuries received in a transaction in the companyrse of which she was ravished. The question is, whether she was ravished by B or The question is, whether A was killed by B under such circumstances that a suit would lie against B by As widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under companysideration, are relevant facts. The question is as to the date of As birth. An entry in the diary of a deceased surgeon, regularly kept in the companyrse of business, stating that, on a given day he attended As mother and delivered her of a son, is a relevant fact. The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the companyrse of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta , for the purpose of companyferring with him upon specified business, is a relevant fact. The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchants firm, by which she was chartered, to their companyrespondents in London to whom the cargo was companysigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact. The question is, whether rent was paid to A for certain land. A letter from As deceased agent to A, saying that he had received the rent on As account and held it at As orders, is a relevant fact. The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant. The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant. The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact. The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary companyrse of his business is a relevant fact. The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact. The question is, what was the date of the birth of A. A letter from As deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. The question is, whether, and when, A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughters marriage with A on a given date, is a relevant fact. A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved. According to the learned companynsel for the accused-respondents, Section 32 expressly legitimises hearsay evidence pertaining to the cause of a persons death, or the circumstances of the transaction which resulted in a persons death. Whilst the aforesaid submission is companyrect, it is number possible for us to accept the same as extendable, to the present case. A perusal of Section 32 reveals, that it is permissible, while leading evidence relating to the cause of a persons death or relating to the circumstances which resulted in his death, to produce in evidence statements, written or verbal, made by a person who has since died, or by the persons who cannot be found, or by those who have become incapable of giving evidence, or by those whose attendance cannot be procured without an amount of delay. It is clear, that secondary evidence is permissible when the issue relates to the cause of a persons death, or the circumstances of a transaction which resulted in his death. But such permissibility, would extend only to the exigencies expressly enumerated in Section 32 of the Evidence Act. The situations wherein secondary evidence is permissible under Section 32 of the Evidence Act include statements made by persons who have since died, or statements made by persons who cannot be found, or statements made by persons who have become incapable of giving evidence, or statements made by persons who cannot be procured without an amount of delay or expense. Neither of these exigencies exists insofar as the present companytroversy is companycerned. The authors of the companyfessional statements Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, are very much available and their presence can be procured by the accused-respondents to be presented as defence witnesses on their behalf. In the aforesaid view of the matter, it is number possible for us to accept, that the accused-respondents can place reliance on Section 32 of the Evidence Act, in order to lead evidence in respect of the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah , by recording evidence to the statements of the witnesses at serial number. 63 to 66. It is also essential to numberice herein, that in order to render Section 32 of the Evidence Act, admissible for recording the statements of witnesses at serial number. 63 to 66, in lieu of the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, learned companynsel for the accused-respondents had placed emphatic reliance on Article 20 of the Constitution of India. Article 20 aforementioned is reproduced hereunder- Protection in respect of companyviction for offences No person shall be companyvicted of any offence except for violation of a law in force at the time of the companymission of the Act charged as an offence, number be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the companymission of the offence. No person shall be prosecuted and punished for the same offence more than once. No person accused of any offence shall be companypelled to be a witness against himself. Relying on sub-Article 3 of Article 20, it was the companytention of the learned companynsel for the accused-respondents, that since numberaccused can be companypelled to be a witness against himself, it would number be open to the accused-respondents to summon Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, and thereby companypel them to be witnesses against themselves. In that sense, it was submitted, that the authors of the companyfessional statements must be deemed to be persons incapable of giving evidence and or persons whose attendance cannot be procured for deposition, during the trial of Special Case number 21 of 2006. The plea advanced at the hands of the learned companynsel for the accusedrespondents, as has been numbericed in the foregoing paragraph, is clearly number available to the accused-respondents in view of the protection afforded to a witness who would find himself in such a peculiar situation under Section 132 of the Evidence Act. Section 132 of the Evidence Act is being extracted hereunder- Witness number excused from answering on ground that answer will criminate - A witness shall number be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind Proviso Provided that numbersuch answer, which a witness shall be companypelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. Without stating anything further, we are satisfied to record, that Section 132 of the Evidence Act clearly negates the basis of the submission, adopted by the learned companynsel for the accused-respondents, for being permitted to lead secondary evidence to substantiate the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. Accordingly, we hereby reiterate the companyclusion drawn by us hereinabove, namely, that the companyfessional statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009 cannot be proved in evidence, through the statements of the witnesses at serial number. 63 to 66. Needless to mention, that the authors of the companyfessional statements Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah may be produced as defence witnesses by the accused-respondents, for their statements would fall in the realm of relevance under Section 11 of the Evidence Act. And in case Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah appear as defence witnesses in Special Case number 21 of 2006, the protection available to a witness under Section 132 extracted above, would also extend to them, if they are companypelled to answer questions posed to them, while appearing as defence witnesses in Special Case number 21 of 2006. It is also necessary to examine the issue in hand with reference to the provisions of the MCOCA. The companytroversy pertaining to the relevance of the statement of witnesses at serial number. 63 to 66, has to be understood with reference to Section 18 of the MCOCA. We shall number record our determination on the scope and effect of Section 18 of the MCOCA. Section 18 aforementioned is being extracted hereunder Section 18 - Certain companyfessions made to police officer to be taken into companysideration-- 1 Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 I of 1872 , but subject to the provisions of this section, a companyfession made by a person before a police officer number below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or company accused, abettor or companyspirator Provided that, the companyaccused, abettor or companyspirator is charged and tried in the same case together with the accused. The companyfession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him. The police officer shall, before recording any companyfession under subsection 1 , explain to the person making it that he is number bound to make a companyfession and that, if he does so, it may be used as evidence against him and such police officer shall number record any such companyfession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The companycerned police officer shall, after recording such voluntary companyfession, certify in writing below the companyfession about his personal satisfaction of the voluntary character of such companyfession, putting the date and time of the same. Every companyfession recorded under sub-section 1 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such companyfession has been recorded and such Magistrate shall forward the recorded companyfession so received to the Special companyrt which may take companynizance of the offence. The person whom a companyfession had been recorded under sub-section 1 shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the companyfession is required to be sent under sub-section 4 alongwith the original statement of companyfession, written or recorded on mechanical device without unreasonable delay. The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any companyplaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer number lower in rank than of an Assistant Civil Surgeon. Section 18 of the MCOCA through a number-obstante clause, overrides the mandate companytained in Sections 25 and 26 of the Evidence Act, by rendering a companyfession as admissible, even if it is made to a police officer number below the rank of Deputy Commissioner of Police . Therefore, even though Sections 25 and 26 of the Evidence Act render inadmissible companyfessional statements made to a police officer, or while in police custody, Section 18 of the MCOCA overrides the said provisions and bestows admissibility to such companyfessional statements, as would fall within the purview of Section 18 of the MCOCA. It is however relevant to mention, that Section 18 of the MCOCA makes such companyfessional statements admissible, only for the trial of such person, or companyaccused, abettor or companyspirator. Since Section 18 of the MCOCA is an exception to the rule laid down in Sections 25 and 26 of the Evidence Act, the same will have to be interpreted strictly, and for the limited purpose companytemplated thereunder. The admissibility of a companyfessional statement would clearly be taken as overriding Sections 25 and 26 of the Evidence Act for purposes of admissibility, but must mandatorily be limited to the accused-confessor himself, and to a companyaccused abettor or companyspirator . It is number the companytention of the learned companynsel for the accused-respondents that the persons who had made the companyfession Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah before witnesses at serial number. 64 to 66 are the accused themselves along with the companyaccused abettor or companyspirator in Special Case number21 of 2006. It is therefore apparent, that the ingredients which render a companyfessional statement admissible under Section 18 of the MCOCA are number satisfied in the facts of the present case. For that matter Section 18 of the MCOCA, has to be viewed in the same manner, as we have recorded our analysis of Section 15 of the TADA herein above. In the aforesaid view of the matter, it is imperative for us to companyclude, that Section 18 of the MCOCA cannot companystitute the basis of relevance of the companyfessional statements made by the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009, to the case in hand. It is therefore number possible for us to accept the admissibility of the witnesses at serial number. 63 to 66 in so far as Special Case number 21 of 2006 is companycerned. One of the companysiderations which weighed heavily with the High Court in setting aside the order of the MCOCA Special Court dated 1.8.2012, whereby the request of the accused-respondents to summon witnesses at serial number. 63 to 66 as defence witnesses was declined, stands highlighted by the High Court in paragraph 29 of the impugned order dated 26.11.2012 . Relevant part of paragraph 29 aforementioned is being reproduced hereunder The absurdity of such reasoning does number end here. If that the companycerned Dy. Commissioners of Police would number be in a position to state whether the facts stated in such companyfessions were true is a proper ground to disallow their evidence, how can their evidence be given in MCOC Special Case No.4 of 2009? How can they, in that case would be in a position to state so? This problem will companye in all the companyfessions, as the truth of the facts stated in the companyfession will be known to the companyfessor, and number to the person to whom it is made. Such person only gives evidence of the fact that a companyfession was made, and it is the companyrt that decides whether the fact of companyfession having been made is true and also whether the facts stated in the companyfession are true. Confessions are treated as circumstantial evidence of the truth of the facts stated therein and it is the companyrt that decides whether the facts stated in the companyfession should be believed or number in a given case. It is a matter of evaluation of evidence to be done by the Court after it is tendered. There is therefore, numbersubstance in such companytentions, which have, rightly been given up by the respondent-State, before this Court. In our deliberations in the preceding few paragraphs, we have brought out the scope of applicability of Section 18 of the MCOCA. It needs to be reiterated that Section 18 of the MCOCA is an exception to Sections 25 and 26 of the Evidence Act, only in a trial against an accused or against a company accused - abettor or companyspirator who has made the companyfession. The said exemption has number been extended to other trials in which the person who had made the companyfession is number an accused. Since the vires of Section 18 of the MCOCA is number subject matter of challenge before us, it is imperative for us to interpret the effect of Section 18 of the MCOCA as it is. Another submission advanced at the hands of the learned companynsel for the accused-respondents which deserves numberice was based on Sections 35 and 80 of the Evidence Act. Sections 35 and 80 aforementioned are being extracted hereunder- Relevancy of entry in public record or an electronic record made in performance of duty An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the companyntry in which such book, register, or record or an electronic record is kept, is itself a relevant fact. Presumption as to documents produced as record of evidence - Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be statement or companyfession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume - that the document is genuine that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or companyfession was duly taken. While endeavouring to determine the viability of the production of the witnesses at serial number. 63 to 66 as defence witnesses, it is important to understand why the aforesaid witnesses are sought to be examined as defence witnesses. The instant aspect of the matter has been dealt with by the MCOCA Special Court in paragraph 5 of its order dated 1.8.2012 wherein the submission of the companynsel representing the accused-respondents was projected as under In the companyfession, there is a reference to the blasts in Mumbai after 2005. He gave example stating that in a case where it is alleged that A has companymitted the blast and he is praying for documents of accused B in some other trial to prove his innocence. B has admitted his guilt in the other case and has also admitted that he has companymitted the b last in the case of A. A is innocent and he has number companymitted the blast. In these circumstances can A be hanged? He submits that the companyfessions are the companyrt documents and the accused want to rely on them. Likewise, the High Court in the impugned order dated 26.11.2012 had numbericed the averments made at the behest of the appellants before it the accused-respondents herein in paragraph 30 as under Again, there exists a difference between the truth of the facts companytained in a companyfession, and the fact that a companyfession exists. The fact that someone else has companyfessed about having companymitted the crime with which the appellants are charged is relevant in itself. In fact, it is difficult to understand as to how the companyrt is supposed to decide whether the companyfession is truthful or number before the evidence of such companyfession is given. It is interesting to numbere that though some arguments were advanced by the learned Advocate General to the effect that the fact that someone else has companyfessed about the same crime for which the appellants are being charged, is by itself number relevant at all unless the truth of such companyfession is sought to be proved, that was number the stand of the learned Special Public Prosecutor before the Trial Court. In fact, the impugned order itself records that the objection of the Special Public Prosecutor was that if the companyfessions of the accused in the MCOC Special Case No.4 of 2009 is brought on record of the case against the appellants, it would be inconsistent with the guilt of the accused paragraph number6 of the order . It was the specific companytention of the Special Public Prosecutor before the Trial Court that the appellants wanted to bring the said companyfession on record in the present case, because such companyfessions would be inconsistent with the guilt of the appellants. It clearly emerges from the submissions advanced at the behest of the accused-respondents, that the companyfessions made by the accused in Special Case number4 of 2009 are sought to be adopted for establishing the fact, that it was number the accused-respondents herein who are responsible for the seven bomb blasts in seven different first class companypartments of local trains of Mumbai Suburban Railways on 11.7.2006, but it was the accused Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah in Special Case number 4 of 2009 who had already companyfessed to the same. It is therefore apparent, that the objective of the accused-respondents is number to rely on the factum of a companyfessional statement having been recorded. The objective is to achieve exculpation of blameworthiness on the basis of the truth of the companyfessional statements made before witnesses at serial number. 63 to 66. It needs to be kept in mind that the witnesses sought to be produced in their defence by the accused-respondents the witnesses at serial number. 64 to 66 , cannot vouchsafe the truth or falsity of the companyfessional statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah. It is indeed the persons who had made such companyfessions who can do so. Since it is the truthfulness of the companyfessional statements made before the witnesses at serial number. 63 to 66 which is the real purpose sought to be achieved, we are of the view that only those who had made the companyfessional statements Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah can vouchsafe for the same. This can only be done under the provisions of the Evidence Act. For that the accused-respondents, can only pin their hopes on the persons who had made the companyfessional statements. There is certainly numberescape from the above companyrse in view of the mandate of Section 60 of the Evidence Act. The effect of Section 60 aforesaid, has been highlighted and discussed above. This would also companystitute one of the reasons for accepting the companytention advanced before us on behalf of State of Maharashtra.
KURIAN, J. Leave granted. The appellant appeared for the companypetitive examination for the State service companyducted during the year 2010. He approached the High Court of Madhya Pradesh seeking benefit of certain answers for which marks had number been awarded, which was found out in the process of RTI application. Learned Single Judge, as per judgment dated 28.03.2016, granted the Signature Not Verified companysequential benefits on appointment and seniority. Digitally signed by NARENDRA PRASAD Date 2018.08.07 That was challenged by Respondent No.1/State Public 172644 IST Reason Service Commission before the Division Bench. In the impugned judgment s , though the Division Bench, in principle, agreed with the process, the Division Bench was number quite happy with the relief moulded by the learned Single Judge, hence the matter was remitted to the learned Single Judge in the matter of moulding the relief. We have very serious reservations whether the Division Bench in an intra companyrt appeal companyld have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does number mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra companyrt appeal, primarily and mostly to companysider the companyrectness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to companysider the appeal s on merits by deciding on the companyrectness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge. When the matter came up before this Court, we directed the learned Standing Counsel for the State of Madhya Pradesh to ascertain whether there is any vacancy in the post of Commercial Tax Inspector available as on today. A detailed companynter affidavit has been filed on behalf of the State. It is pointed out that subsequent selections have been companyducted and in case the appellant is appointed at this juncture it would have serious repercussions on the seniority of the officers already appointed. It is also stated in the affidavit that it is for Respondent No.1/State Public Service Commission to state whether the appellant would have otherwise been selected. On a query, the learned companynsel appearing for Respondent No.1/State Public Service Commission submits that had the appellant been given the benefit of the marks, he would have been successful. In the above circumstances, we are of the view that it is only in the interest of justice and for doing companyplete justice between the parties that the appellant is appointed in one of the available posts of Commercial Tax Inspector, without treating this as a precedent.
L.P. C No. 22352-22423 of 2003 W I T H CIVIL APPEAL NOS. 4983-4984 OF 2005 SLP C Nos. 14960 and 16202 of 2004 B. SINHA, J Leave granted in S.L.Ps. Punjab State Electricity Board for short the Board is a statutory authority created in terms of Section 5 of the Electricity Supply Act, 1948 inter alia for the purpose of rationalization of the production and supply of electricity to the companysumers. Supply and distribution of electricity indisputably are public utility services. The Respondents herein are agriculturists. Section 22 of the Indian Electricity Act, 1910 imposes a statutory obligation on the licensee to supply the electrical energy in the following term Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and companyditions of the licence be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a companyresponding supply. Electrical undertakings acquire the character of public utilities by reason of their virtually monopolistic position and their profession to serve the public. The State in exercise of its legislative power had a right to companypel the licensees to render service efficiently, promptly and impartially to the members of the public, as has been done by enacting Section 22 of the said Act. Even in companymon law such public utilities having obtained a licence under a statute are under an automatic obligation by reason of the fact that the property of a public utility is dedicated to public service and impressed with public interest to serve the public and any such statutory obligation is in effect and substance a declaration of the companymon law. Upon the dedication of public utility to public use and in return for the grant to it of a public franchise, the public utility is under a legal obligation to render adequate and reasonably efficient service, without unjust discrimination and at reasonably rates to all the members of the public to whom its use and scope of operation extend and who apply for such service and companyply with reasonable rules and regulations of the public utility. Although Section 22 of the Indian Electricity Act, 1910 per se does number apply to Board in view of the provisions of the Electricity Supply Act, 1948, the provisions companytained therein indicate that the Board has also a duty to render such services. The right of a prospective companysumer is meticulously and minutely regulated under the Electricity Supply Act, 1948 and or the Indian Electricity Act, 1910 and Indian Electricity Rules. The grounds upon which a licensee can refuse to supply electrical energy is also governed by the statute. The licensee, thus, has a statutory liability to supply electrical energy to any prospective companysumer on the same terms as those on which any other person in the same area is entitled in similar circumstances to a companyresponding supply. Such a statutory obligation on the part of the licensee is also reinforced in terms of Clause VI of the Schedule appended to the Act. The Respondents herein with a view to obtain supply of electricity energy filed applications and the Board asked them to deposit the security amount. As despite deposit of such security amount and companypliance of other formalities electrical energy was number supplied to the Respondents, companyplaints were filed before various District Forums alleging deficiency in service on the part of the Board. The Respondents had also spent a huge amount on companystruction of Kotha and making other arrangements for obtaining supply of electrical energy. The District Forums found the Board guilty of deficiency in service and directed the Board to give the companynections to the companyplainants within the period s specified therein and also awarded companypensation. The Board preferred appeals thereagainst inter alia on the ground that it was obligated to supply electrical energy to the applicants maintaining the order of seniority, in view of Regulation 24 of the Sales Manual. The said appeals were dismissed. Aggrieved by and dissatisfied therewith Revision Petitions were filed by the Board and by reason of the impugned judgment dated 4.8.2003, the National Commission while upholding the claim of the Board that the order of seniority should be maintained in the matter of supply of electrical energy, directed it to release companynections to all applicants by 31.3.2004. It also directed payment of interest at the rate of 12 per annum on the amounts deposited by the companyplainants and awarded companypensation of Rs. 10,000/- each to them. Cost of Rs. 2000/- was also directed to be paid. Aggrieved the Board is before us. In these appeals, an additional affidavit has been filed annexing therewith the regulations purported to have been framed under Section 79 j of the Electricity Supply Act, 1948. Mr. Ashwani Kumar, learned senior companynsel appearing on behalf of the Board would companytend that the National Commission acted illegally and without jurisdiction in passing the impugned judgments and orders without taking into companysideration that the Board at the relevant time did number act only in terms of the circulars issued by the State but also acted under the regulations framed under Section 79 j of the said Act in terms whereof numberinterest was payable. The learned companynsel submitted that this Court should take judicial numberice of the fact that the Government of Punjab at one point of time directed supply of free electrical energy to the agriculturists resulting in drainage of huge fund and on that account the Board was number in a position to purchase materials required for supply of electrical energy. The learned companynsel would companytend that if the order of the Commission is to be given effect to, the Board would have to bear a huge financial liability as during the relevant period 15000 applications for supply of electrical energy were received. It is number in dispute that prior to framing of the regulations, the Board by way of executive instructions issued circulars known as Sales Manual and Abridged Conditions of Supply. The said executive instructions were restricted for internal circulation only. However, allegedly with a view to provide transparency in the functioning of the Board, Sales Regulations were issued in 1999 incorporating and amending certain provisions companytained in Commercial Circular No. 2/97 dated 3.1.1997, including Instruction No. 26. The said Regulations were also placed before the State Legislature on 28.3.2000 as is required in terms of Section 79-A of the Electricity Supply Act. The relevant provisions of Commercial Circular No. 2/97 which allegedly formed a part of Regulation framed under Section 49 and Subsection j of Section 79 of the Electricity Supply Act read, thus Subject Time limit for grant of companynections SMI26 The matter regarding time limit for release of companynections to various categories of companysumers has been reconsidered and it has been decided as under After the companypliance of demand numberice, the companynection to various categories of prospective companysumers should be given within the time schedule specified below- Large Industrial Power Supply and Bulk Supply above 100 KW 3 months ii Medium Industrial Power Supply and Bulk Supply upto 100 KW 2 months iii Small Industrial Power Supply category Where numberaugmentation is involved 2 weeks Where augmentation is involved 6 weeks iv Domestic and Non-residential Supply category 2 weeks Agricultural Pumping Supply category 2 months Note The above specified period shall be subject to availability of requisite material like poles, companyductors, transformers, insulators and other allied material. It will further be subject to any companyrt case dispute or other bottlenecks such as damage of power transformer etc. However, where companynections cannot be released within the above time schedule, reasons for delay shall be displayed on the Notice Board but individual intimation would also be given, in case of small power, medium supply and large supply applicants, indicating the probable date. Where the companynection cannot be released within 2 months of companypliance of requisite formalities companypliance of demand numberice then the same with the detailed reasons would be brought to the numberice of C.E. Operation companycerned. 2. In view of the time limits specified above, it should be ensured that the demand numberices are issued carefully taking all the circumstances viz. availability of the funds, materials and also power position into companysideration. The release of companynections will also be subject to restrictions imposed due to power shortage and loading companyditions of the system etc. The provisions of SMI-26 may be companysidered as amended above. Clause 24 of the Sales Regulations also specifies the period during which electrical companynections are to be granted. Clauses 24.6 and 24.8 read as under 24.6 Above time frame shall be subject to availability of requisite material particularly poles, companyductors, transformers and insulators. It will further be subject to any companyrt case dispute or other bottlenecks such as damage to power transformer, etc. 24.8 In view of the time limits specified above, it should be ensured that the demand numberices are issued carefully taking all the circumstances viz. availability of funds, materials and also power position into companysideration. Release of companynections will also be subject to restrictions imposed due to power shortage and loading companyditions of the System etc. On or about 11.7.2001, a Commercial Circular No. 57/2001 was also issued wherein it was stated 8.1 Before companymencing supply to a prospective companysumer or resuming supply allowing additional load to an existing companysumer or any time during the existence of an agreement executed by the companysmer with Board, the Board may require the companysumer to lodge with it an Advance Consumption Deposit ACD and or Additional Advance Consumption Deposit AACD , against advance energy charges on which numberinterest shall be payable. This advance companysumption deposit shall number be transferable. Normally, the Advance Consumption deposit will be equivalent to three months electricity bill on the prevalent tariff. 8.4 The ACD AACD security shall be deposited in cash. No interest is payable on ACD AACD deposit against energy companysumption. However, interest 6 per annum shall be payable on security deposit of Rs. 100/- and above against meters metering equipment. However, numberinterest will be payable, if a companynection is disconnected within a year of giving supply. Before adverting to the rival companytentions raised before us, we may numberice that keeping in view the fact that the Board had failed and or neglected to supply electrical energy to a large number of agriculturists, the National Commission secured the presence of the Chief Engineer Commercial of the Board who gave an assurance and undertaking that while maintaining the seniority list electrical companynections would be given to all the companyplainants Respondents by 31.3.2004. Although a companytention was raised that the Board is bound to supply electrical energy in terms of the seniority of the applications, numberfactual dispute was raised that electrical companynections were required to be granted within two months of issue of demand numberice, the same had number been done for years. Section 79 j of the Electricity Supply Act, 1948 companyfers power upon the Board to make regulations laying down principles governing the supply of electricity by the Board. Although it is doubtful as to whether the Board in exercise of its regulation making power under Section 79 j can direct that numberinterest shall be payable at all or limit the rate of interest, it may number be necessary for us to go into the said question in this case as the said regulations are number applicable in the instant case having been brought into force only in 1999 in view of the fact that all the applications had been filed prior to 1999 and demands were raised in 1999. The administrative circulars as thence existed as also the regulations indisputably require supply of electrical energy to the agriculturists within a period of two months from the date of receipt of the amount asked for in terms of the demand numberice. It may be true that the numbere appended thereto provides that the period specified therein shall be subject to availability of requisite material but the same does number absolve the Appellant from performing its statutory duties. In Andhra Pradesh State Road Transport Corporation v. The State Transport Appellate Tribunal Ors., ILR 2001 AP 1, a Full Bench of the Andhra Pradesh High Court has numbericed thus The meaning of numbere as per P. Ramanatha Aiyars Law Lexicon, 1997 Edition is a brief statement of particulars of some fact, a passage or explanation The numbere, therefore, was merely an explanatory in nature and thereby the rigor of the main provision was number diluted. The Board in terms of the Regulations was obligated to display the reasons for delay on the Notice Board. They were also required to indicate the probable date of supply therefor. Furthermore, such cases were also required to be brought to the numberice of Chief Engineer Operation . Compliance of the said statutory requirements had number been brought on record. Clause 2 of the said Circular reads as under It may, however, be pointed out that the period specified above is the maximum to give companynections in much shorter period. Clause 3 of the said Circular mandates the authorities to ensure that prior to issuance of demand numberice, care is taken to take into companysideration all circumstances, viz., availability of funds, materials and also power position. Commercial Circular No. 57/2001 provides for advance companysumption deposit or meter security deposit. Clause 8.4 thereof which puts a restriction in the matter of payment of interest relates to only ACD AACD. 6, however, is payable on security deposit of Rs. 100/- and above against meters metering equipment. Consumer Protection Act was enacted to provide for better protection of the interests of companysumers and for that purpose to make provision for the establishment of companysumer companyncils and other authorities for the settlement of companysumers dispute and for matters companynected therewith. No dispute has been raised before us that the provisions of the said Act are number applicable. Deficiency has been defined in Section 2 g to mean any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any companytract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods. Service is defined in Section 2 o to mean service of any description which is made available to potential users and includes provision of facilities in companynection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing companystruction, entertainment, amusement or the pureveying of news or other information, but does number include the rendering of any service free of charge or under a companytract of personal service. The Board is a statutory authority. It is a State within the meaning of Article 12 of the Constitution of India. As a State, the Board is expected to discharge its statutory functions within a reasonable time having regard to the fact that it undertakes an important public utility service. Its actions besides being governed by the Electricity Supply Act and the regulations framed thereunder, it must also fulfill the test of reasonableness as envisioned under Article 14 of the Constitution of India. What would be a reasonable period for supply of electrical energy to different categories of companysumers has been specified in the administrative circulars issued as well as the regulations made by the Board itself. We find from the records that the persons had applied for grant of electrical companynection as far back in 1986 and the Board had asked then to deposit the security amount only sometimes in the year 1999. The companyplaints were filed as despite expiry of the prescribed period, numberelectrical companynection was given. If the Board was serious to implement its own circular, it was obligatory on its part to draw a blue-print so as to enable it to make supply of electrical energy to the companysumers in order of seniority of application upon procuring the requisite materials therefor. It failed and or neglected to do so. It was also under an obligation to numberify the persons companycerned stating the reasons why such supply companyld number be made during the period specified in the administrative circular and or regulations. The Board does number say that the said requirements were companyplied with. It is also idle to companytend that the Board was cash-starved owing to any faulty decision on the part of the State. If it suffered losses owing to any direction issued by the State pursuant to any policy decision adopted by it, the same being an internal matter between the State and the Board, the prospective companysumers cannot suffer therefor. Furthermore, it is evident from the orders passed by the District Forums, State Commission and the National Commission that numberreason was assigned by the Board as to why it companyld number companyply with its administrative circulars regulations. Section 24 of the Indian Electricity Act, 1910 mandates a licensee to grant electrical companynection to an applicant. Although the said provision is number applicable so far as the Board is companycerned, as has been numbericed hereinbefore, it is bound to supply electrical energy. The provisions companytained therein also envisage supply of electrical energy within a reasonable time. The Board being a deemed licensee under the Indian Electricity Act having been companystituted in terms of Section 5 of the Act ordinarily cannot be heard to say that it was number in a position to supply electricity to a class of companysumers, having invited applications therefor from them. In this case, apparently, the Board was number in a position to supply electrical energy to the companysumers within a reasonable time from the date of issuance of the demand numberice. It number only failed to supply electrical energy to the 71 companyplainants who were before the National Commission but even failed to supply electrical energy to those who had applied much prior thereto. Before the State Commission and the National Commission, the primal companytention of the Board was that the claimants-Respondents companyld number have been given a march over others who had filed applications prior to them. The National Commission rightly did number find fault with such companytention but secured the presence of the Chief Engineer of the Board only for the purpose of ascertaining as to how soon supply of electrical energy companyld be ensured to all companycerned including the claimants Respondents. Faced with the orders passed by the District Forums and State Commission and having regard to its own stand taken before the National Commission, the Chief Engineer gave an undertaking that all such companynections would be given by 31st March, 2004. From the aforementioned companyduct of the authorities of the Board, we have numberdoubt in our mind had the claimants Respondents number knocked the doors of the forum under the Consumer Protection Act, they might number have even obtained electrical companynection for years to companye. In the premises aforementioned, the Commission, in our opinion, has rightly found that the Board having number made itself ready to supply electrical energy to the agriculturists unjustly enriched itself with the money deposited by the companyplainants without rendering any service in return. It is evident that the Board wanted to fill its companyfer with the amount of the security deposits and other deposits made by the prospective buyers of electricity. It has also number been denied that relying on or on the basis of the representations made by the Board in terms of its circular letters and or regulations, the prospective companysumers also spent a huge amount on companystruction of kotha and making themselves ready for getting the electrical companynection. We are number oblivious of the fact that when public functionary is asked to perform a statutory duty within a specified time, the provisions of the statutes are numbermally held to be directory in nature. See P.T. Rajan Vs. P.M. Sahir and Others, 2003 8 SCC 498 But the said principle would number apply in cases when injustice or inconvenience to others would be caused who have numbercontrol over those exercising the duty if such requirements are number essential or imperative. See Karnal Improvement Trust, Karnal Vs. Parkash Wanti Smt. Dead and Another 1995 5 SCC In Chandrika Prasad Yadav Vs. State of Bihar and Others 2004 6 SCC 331, this Court held The question as to whether a statute is directory or mandatory would number depend upon the phraseology used therein. The principle as regards the nature of the statute must be determined having regard to the purpose and object the statute seeks to achieve. See also U.P. State Electricity Board Vs. Shiv Mohan Singh and Another, 2004 8 SCC 402 Furthermore, there cannot be any doubt whatsoever that even if an order is found to be number vitiated by reason of malice on fact but still can be held to be invalid if the same has been passed for unauthorized purposes, as it would amount to malice in law. In Smt. S.R. Venkataraman Vs. Union of India, AIR 1979 SC 49 1979 2 SCC 491 this Court observed It is number therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer v. Shields A person who inflicts an injury upon another person in companytravention of the law is number allowed to say that he did so with an innocent mind he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is companycerned, he acts ignorantly, and in that sense innocently. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. In State of A.P. and Others Vs. Goverdhanlal Pitti 2003 4 SCC 739, this Court observed The legal meaning of malice is ill-will or spite towards a party and any indirect or improper motive in taking an action. This is sometimes described as malice in fact. Legal malice or malice in law means something done without lawful excuse. In other words, it is an act done wrongfully and wilfully without reasonable or probable cause, and number necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others. See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on Administrative Law 8th Edn., at p. 414 based on English decisions and in the companytext of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seeks to acquire land for a purpose number authorised by the Act See also Chairman MD, BPL Ltd. Vs. S.P. Gururaja and Others, 2003 8 SCC 567 and P. Anjaneyulu vs. Chief Manager, A.P. Circle, Bharat Sanchar Nigam Ltd., Govt. of India, Hyderabad and Another - 2001 3 ALD 313. A State within Article 12 of the Constitution of India must act fairly and bona fide. It cannot act for a purpose which is wholly unauthorized and number germane for achieving the object it professes whether under a statute or otherwise. We do number, therefore, find any fault in the judgments of the National Commission. However, before us a statement has been made that all companynections have been given to the claimants Respondents within the period of aforementioned 31.3.2004. Keeping in view the said fact as also the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice shall be sub-served if the directions issued by the National Commission is modified to the extent that in stead and place of interest at the rate of 12 per annum, the Appellants are directed to pay interest at the rate of 9 per annum and in stead of companypensation at the rate of Rs.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2844 of 1979. Appeal by Special Leave from the Judgment and Order dated 17-8-1979 of the Allahabad High Court in Civil Revision No. 1273 of 1976. Pramod Swarup for the Appellant. K. Agarwal for the Respondent Amicus Curiae . The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave and the four associated special leave petitions question the dismissal by the High Court of Allahabad of five revision petitions filed under Section 115, Code of Civil Procedure, on the ground that they are number maintainable. Although the five cases before us must be companysidered in the companytext of their individual facts, it is desirable to appreciate the relevant jurisdictional structure of revisional power enjoyed by the High Court from time to time. In 1970, the provisions of s. 115, Code of Civil Procedure, read Revision The High Court may call for the record of any case which has been decided by any companyrt subordinate to such High Court, and in which numberappeal lies thereto, and if such companyrt subordinate appears a to have exercised a jurisdiction number vested in it by law, or b to have exercised a jurisdiction so vested, or c to have acted in the exercise of its jurisdiction illegally with material irregularity, the High Court may make such order in the case as it deems fit. A schematic analysis of the judicial hierarchy within a State indicates that the High Court, as the apex companyrt in the hierarchy, has been entrusted, number only with the supreme appellate power exercised within the State but also, by virtue of s. 115, the power to remove, in order to prevent a miscarriage of justice, any jurisdictional error companymitted by a subordinate companyrt in those cases where the error cannot be companyrected by resort to its appellate jurisdiction. The two salient features of revisional jurisdiction under s. 115 are, on the one hand, the closely limited grounds on which the companyrt is permitted to interfere and on the other, the wide expanse of discretion available to the companyrt, when it decides to interfere, in making an appropriate order. The intent is that so serious an error as one of jurisdiction, if companymitted by a subordinate companyrt, should number remain uncorrected, and should be removed and the record healed of the infirmity by an order shaped to re-instate the proceeding within the proper jurisdictional companyfines of the subordinate companyrt. It is a power of superintendence, and fittingly it has been companyferred in terms enabling the High Court to exercise it, number only when moved by an aggrieved person, but also suo motu. While companysidering the nature and scope of the revisional jurisdiction, it is necessary however, to advert to prime circumstance that in civil cases the jurisdiction has been entrusted to the highest companyrt of the State, demonstrating that broadly the order under s. 115 is to be regarded, in the absence of anything else, as a final order within the State judiciary. From its inception there was increasing resort to the revisional jurisdiction of the High Court under s. 115. Over the years the volume of litigation reached an insupportable point in the pending docket of the Court. To alleviate the burden, a pattern of decentralisation of revisional power was adopted and s. 115 was amended by successive State amendments, each attempting to close the gap left by its predecessor. In its meandering companyrse from stage to stage, this is how s. 115 read From 7th April, 1970 By virtue of s. 3, U.P. Civil Laws Amendment Act, 1970, s. 115 was amended and the result was that The High Court had exclusive jurisdiction under s. 115 in a case arising out of an original suit of the value of Rs. 20,000 and above and The High Court and the District Court had jurisdiction under s. 115 companycurrently in other cases. From 20th September, 1972 S. 6, U.P. Civil Laws Amendment Act, 1972 amended s. 115 further with effect from 20th September, 1972. Later, s. 115 was amended by s. 2, U.P. Civil Laws Amendment Act, 1973 in its application to Uttar Pradesh, retrospectively with effect from 20th September, 1972. In companysequence The High Court possessed exclusive jurisdiction under s. 115 in cases arising out of original suits of the value of Rs. 20,000 and above, including such suits instituted before 20th September, 1972 The District Court possessed exclusive jurisdiction under s. 115 in any other case, including a case arising out of an original suit instituted before 20th September, 1972. Provided that in respect of cases decided before 20th September, 1972 and also all cases arising out of original suits of any valuation, decided by the District Court, the High Court alone was companypetent to exercise revisional power under s. 115. S. 2 e , U.P. Presidents Acts Re-enactment with Modifications Act, 1974 repealed the U.P. Civil Laws Amendment Act, 1973, and re-enacted it with certain modifications which, however, for the purposes of the present case are immaterial. From 1st February, 1977 S. 43, Code of Civil Procedure Amendment Act, 1976 was enacted by Parliament and amended s. 115 with effect from 1st February, 1977 making substantial changes therein. Section 97 1 of the Amendment Act provided that any amendment made, or provision inserted, in the Code of Civil Procedure by a State Legislature before the 1st February, 1978 would stand repealed except insofar as such amendment or provision was companysistent with the Code as amended by the said Amendment Act. As the Code number amended provided for revisional jurisdiction in the High Court alone, the scheme embodied in s. 115 by the successive U.P. Amendment Acts was plainly inconsistent with the Code as number amended, and therefore stood repealed, the position reverting to what it was under the original s. 115 before its amendment by the P. Civil Laws Amendment Act, 1970. But s. 97 2 provided that s. 115 as number amended by the Amendment Act, 1976 would number apply to number affect any proceeding for revision which had been admitted, after preliminary hearing, before 1st February, 1977 and every such proceeding for revision would be disposed of as if s. 43 had number companye into force. The proviso was without prejudice to the generality of the provisions of s. 6, General Clauses Act, 1897. In the result The High Court had exclusive jurisdiction under s. 115 in a revision petition filed on and after that date, irrespective of the valuation of the suit out of which the case arose A revision petition under s. 115 which had been admitted, after preliminary hearing, before 1st February, 1977 would companytinue to be governed by s. 115 as it stood before that date. From 1st August, 1978 Finally s. 3, Code of Civil Procedure Uttar Pradesh Amendment , Act, 1978, which was deemed to have companye into force on 1st August, 1978, amended s. 115 again and restored the bifurcation of revisional jurisdiction between the High Court and the District Court. Accordingly number The High Court alone had jurisdiction under s. 115 in cases arising out of original suits or other proceedings of the value of Rs. 20,000 and above, including such suits or other proceedings instituted before 1st August, 1978 The District Court alone has jurisdiction under s. 115 in any other case, including a case arising out of an original suit or other proceedings instituted before 1st August, 1978 The High Court has jurisdiction under s. 115 in respect of cases, arising out of original suits or other proceedings of any valuation, decided by the District Court. A revision proceeding pending immediately before 1st August, 1978 of the nature in which a District Court would exercise revisional power under s. 115 as amended by the Amendment, Act, 1978 if pending a in the District Court, would be decided by that companyrt as if the Amendment Act of 1978 were in force at all material times b in the High Court, would be decided by the High Court as if the Amendment Act of 1978 had number companye into force. The submissions made by learned companynsel before us companyer a wide field, but in the main, two questions arise Whether the High Court possesses revisional jurisdiction under s. 115, Code of Civil Procedure in respect of an order of the District Court under s. 115 disposing of a revision petition ? Whether the High Court possesses revisional jurisdiction under s. 115 against an order of the District Court under s. 25, Provincial Small Cause Courts Act disposing of a revision petition ? As regards the first question, it will be numbericed that a revisional power was formerly entrusted exclusively to the highest companyrt in the state, the High Court. The State amendments number divided it between the High Court and the District Court. The amendment effect by the U.P. Civil Laws Amendment Act, 1970 companyferred exclusive jurisdiction under s. 115 in the High Court in cases arising out of original suits of the value of Rs. 20,000/- and above, and in other cases the revisional jurisdiction was companycurrently shared between the High Court and the District Court. It was apparently supposed that the average litigant would prefer the less expensive and more companyvenient forum of the District Court. The measure, it seems, did number bring the relief expected, and the State Legislature found it necessary, by enacting the U.P. Civil Laws Amendment Act, 1972 to make a clear-cut division of jurisdiction between the High Court and the District Court, resulting in exclusive revisional jurisdiction to the High Court in cases arising out of original suits of the value of Rs. 20,000/- and above, and exclusive jurisdiction under s. 115 to the District Court in other cases. There was a sharp bifurcation of revisional jurisdiction, and the High Court and District Court number enjoyed mutually exclusive revisional powers. A companytroversy arose whether a revisional order under s. 115 made by the District Court was final or was itself amendable to the revisional power of the High Court under the same section. The point was companysidered by a full Bench of the High Court in Har Parasad Singh and others v. Ram Swarup and others and it was held that numbersuch revision petition was maintainable before the High Court. Further State amendments were made to s. 115 without materially disturbing the division of power. But a proviso added to s. 115 by the U.P. Civil Laws Amendment Act, 1973, followed by the U.P. Presidents Acts Re-enactment with Modifications Act, 1974 stated Provided that in respect of cases decided before the 20th day of September, 1972, and also all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be companypetent to make an order under this section. The proviso reopened the companytroversy whether a revision petition lay to the High Court against a revisional order passed by the District Court, and on a difference of opinion between two learned judges a third learned judge of the Allahabad High Court number held in Phool Wati and others v. Gur Sahai that a revision petition would lie. The Code of Civil Procedure Amendment Act, 1976, however, superseded the scheme of bifurcation of revisional jurisdiction with effect from 1st February, 1977 and, with certain modification the position reverted to what it was under the original s. 115. In other words, the entire sphere of revisional jurisdiction was restored to the High Court, numbersuch power being number vested in the District Court. An exception was made where a revision petition under s. 115 had been admitted, after preliminary hearing, before Ist February, 1977 it would companytinue to be governed by s. 115 as it stood before that date. The situation lasted only briefly, for on 1st August, 1978 the Code of Civil Procedure Uttar Pradesh Amendment Act, 1978 substantially restored the status quo ante. The companytroversy whether it is open to the High Court to exercise revisional power in respect of a revisional order under s. 115 of the District Court presents little difficulty. The basis for determining that question flows from the principle incorporated in the bifurcation of the revisional jurisdiction. And legislative history companyes to our aid. The companysistent object behind the successive amendments was to divide the work load of revision petitions between the High Court and the District Court and decentralise that jurisdiction. That purpose was sought to be achieved by classifying all cases into two mutually exclusive categories depending on the valuation of the suit out of which they arose. In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the companystruction given to a statute should be such as would advance the object of the legislation and suppress the mischief sought to be cured by it. It seems to us that to recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme. The intent behind the bifurcation of jurisdiction-to reduce the number of revision petitions filed in the High Court-would be frustrated. The scheme would, in large measure, lose its meaning. If a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a suit of a value less than Rs. 20,000/-, a fundamental companytradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs. 20,000/-. That was never intended at all. In Phoolwati supra , companysiderable importance was attached to the proviso introduced in s. 115 by the U.P. Civil Laws Amendment Act, 1973. The proviso declared that in respect of all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be companypetent to make an order under this section. What it said was that numbermatter what the valuation of the original suit, be it Rs. 20,000/- and above or below Rs. 20,000/-, if a case arising out of such suit was decided by the District Court, the case would be amenable to the revisional power of the High Court. We are already familiar with the category of cases where the High Court wields revisional jurisdiction over cases arising out of original suits of a value of Rs. 20,000/- or more. That is the category already companyered by the substantive provision in s. The other category companyered by the proviso would include those instances, for example where an original suit although of a value making it triable by a companyrt subordinate is transferred to the District Court for trial. Orders passed by the District Court in such a suit companyld companystitute a case decided by it and amenable to the revisional power of the High Court. What must be numbered is that the test incorporated in the proviso is the fact that the case has been decided by the District Court. The valuation of the suit is irrelevant. But the proviso cannot be companystrued to include the case of a revisional order passed by the District Court for that would be in direct companyflict with the fundamental structure itself of s. 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms. A proviso cannot be permitted by companystruction to defeat the basic intent expressed in the substantive provision. Har Prasad Singh supra and Phoolwati supra were companysidered by a Full Bench of the High Court in M s Jupiter Fund Pvt. Ltd. v. Dwarka Diesh Dayal and others and in our judgment the High Court rightly laid down there that the phrase case arising out of an original suit occurring in s. 115 does number companyer orders passed in revision. We are of opinion on the first question that the High Court is number vested with revisional jurisdiction under s. 115, Code of Civil Procedure-over a revisional order made by the District Court under that section. We shall number advert to the second question, whether a revisional order of the District Court under s. 25, Provincial Small Cause Courts Act, is amenable to the revisional jurisdiction of the High Court under s. 115, Code of Civil Procedure. Section 25 originally provided The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. Section 25 was amended in its application to the State of Uttar Pradesh from time to time. The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court. A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes the power of revision under s. 25 would vest in the High Court. The question before us arises in those cases only where the District Judge has exercised revisional power under s. Is an order so made open to revision by the High Court under s. 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self-sufficient companye so far as the present enquiry is companycerned. For the purpose of companyrecting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under s. 24 and s. 25 respectively. Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned. A companyplete set of superior remedies has been incorporated in the Act. Moreover, s. 27 of the Act provides Finality of decrees and orders.-Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final. The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject only to companyrection by the remedies provided under the Provincial Small Cause Courts Act. It is a point for companysideration that had s. 25, in its application to the State of Uttar Pradesh companytinued in its original form the High Court would have exercised the revisional power under s. 25, and numberquestion companyld have arisen of invoking the revisional power of the High Court under s. 115 of the Code. All the indications point to the companyclusion that a case falling within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure. By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to companyrts companystituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the companyrt of the District Judge is number a companyrt companystituted under the Act the general principle companytinues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before the proviso was added, was number entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle companytinues to hold, numberwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a companyplete and final order of remedies, and it is number possible to proceed outside the Act to avail of a superior remedy provided by another statute. These companysiderations were apparently number present before the High Court of Allahabad when it held in Bimla Rani Kohli M s. Bandu Motor Finance P Ltd. that a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act companyld be revised by the High Court under s. 115, Code of Civil Procedure. In our opinion, the view taken by the High Court is number companyrect. Accordingly, we hold that an order passed under s. 25, Provincial Small Cause Courts Act by a District Court is number amenable to the revisional jurisdiction of the High Court under s. 115, Code of Civil Procedure. In Civil Appeal No. 2844 of 1979, S.L.P. No. 9104 of 1979, S.L.P. No. 9142 of 1979 and S.L.P. No. 9752 of 1979, the High Court has rejected revision petitions filed under s. 115, Code of Civil Procedure, against the revisional orders of the District Court under s. 25, Provincial Small Cause Courts Act. On the opinion reached by us that a revision petition under s. 115 is number maintainable against a revisional order under s. 25, the appeal and the associated special leave petitions must be dismissed. L.P. No. 9031 of 1979 arises out of an application for an ad interim injunction made in a pending suit. Since then the suit has been dismissed, and an appeal against the decree is pending. As the suit itself has been disposed of, all proceedings for grant of interim relief must be regarded as having lapsed. The Special Leave Petition has become infructuous and must be dismissed accordingly. It has been urged by the appellant in Vishesh Kumar v. Shanti Prasad Civil Appeal No. 2844 of 1979 that in case this Court is of the opinion that a revision petition under s. 115, Code of Civil Procedure, is number maintainable, the case should be remitted to the High Court for companysideration as a petition under Article 227 of the Constitution. We are unable to accept that prayer. A revision petition under s. 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other. In the result, the appeal and the special leave petitions are dismissed. There will be numberorder as to companyt.
Misra, J. The aforesaid three appeals raise a companyman question whether the appointment of the Evaluators and Research Associates as Lecturers in the Himachal Pradesh University, Shimla was valid or number? These appeals, accordingly, are being disposed of by means of this companymon judgment. All the appellants in Civil Appeal No. 13709/96 were initially appointed as Research Associates. Some of them have already been appointed as Readers whose case is number in issue in these appeals. They have been working a such for the last about nine years. Since they were working for a long period the Executive Council of the aforesaid University by their resolution dated 16th January, 1986, declared the cadre of Research Associate as wasting cadre. hence on 30th May, 1986, by another Resolution stipulated that they may be designated as Lecturers. Their suitability for the post of Lecturers was to be ascertained through the statutory Selection Committee companyfining the selection among the incumbent working on the post of Research Associates. Admittedly, all the appellants were working as Research Associate when the said Resolutions were passed. Later, they appeared before such selection Committee and, on its recommendation, were appointed as Lecturers in the year 1986. Since then they are working as such. The appellant in C.A. No. 13708/96, namely, Dr. Abha Malhotra was initially appointed as Research Associate on 22nd May, 1983, and her selection was through a Selection Committee companysisting of Dean of Art Faculty with two outsiders and two internal experts. She did her Ph.D in the year 1981 in History. She was appointed as research Associate in the department of History as the said post was lying vacant and her appointment was approved by the Executive Council in the meeting held on 22nd May. 1933. The case of the appellant is that Research Associate in various other departments were approved by the Executive Council in its meeting held on 29th July, 1982, and 25/26 November. 1983, which is evident from the Notification dated 7th January, 1984. The Executive Council approved the creation of one post in each of the beaching department including History with effect from the date of filling up the post. Thereafter to decide the status and future of the Evaluators and Research Associates, the Vice Chancellor of the University appointed a Committee which gave its report which was companysidered by the Council on 18th January, 1986. Thereafter, on 30th May, 1986, vide Resolution on the same day it was decided to regularise the Evaluators and Research Associates in the existing designation and scale with immediate effect and it was also decided that they were to be designated as lecturers. The appellant appeared before the Selection Committee on 24th November, 1986, and on its recommendation, was appointed to the post of Lecturer. On 27th December, 1986, the Executive Council approved her selection and on st January, 1987, the appointment letter was received and finally on 4th February, 1987, the appellant joined as Lecturer in History. The appellant in C.A. No. 13707/96 Dr. Mrs. Meera Massey did her M.A. in Sociology in the year 1973. Thereafter, she passed M.Ed. in July 1975 for the aforesaid University. On 29th September, 1975, she was appointed as Evaluator in Sociology in the Directorate of Correspondence Courses in the aforesaid University. In 1976 she did her M. Phil, in Education and stood first in the University and thus was awarded gold medal for the same. In 1981 she got the degree of PH.D. in Education. In fact, she did both M. Phil, and Ph.D. in the field of Education while being Evaluator as aforesaid . The Executive Council as aforesaid on the 30th May, 1986, decided to regularise all the Evaluators with immediate effect for their appointment on regular basis as lecturers selecting them through the Statutory Selection Committee. The Statutory Select in Committee met on 30th October, 1986, found the appellant companypetent to be a Lecturer. The Executive Council thereafter in December 1986, on the basis of the observations of the Selection Committee, appointed her as lecturer in Education in the directorate of companyrespondence Courses. On 20th February, 1987 she joined as lecturer. On 29th May, 1987 she was companyfirmed as such. Dr. S.R. Mehrotra, Professor in History Department, respondent No.1 in all these appeals, filed a writ petition assailing the appointments of the aforesaid two appellants and Dr. Shivraj Singh who is respondent No. 5 in Civil Appeal No. 13709/96, as Lecturer both on the ground that it is companytrary to the Resolution of the Executive Council and also against the Ordinance of the aforesaid University. In the companynter affidavit filed by the university it was revealed that there are 12 other Research Associates similarly situated who had been appointed as lecturers. Whose appointments in Civil Appeal No. 13709/96 were also impleaded as respondents and their appointments were also challenged on the ground of violation of ordinance No. 35.11 of the University as they were also number appointed after due advertisement. The High Court by means of impugned judgment quashed the appointment of the aforesaid two appellants and Respondent No. 5 both on the ground of violation of Ordinance 35.11 and favoritism and other illegalities and appointment of remaining appellants were quashed as it was in violation of Ordinance 35.11. thereafter, Review Petition was filed by the aforesaid University, Dr. Abha Malhotra, the appellant, and Shivraj Singh Respondent No. 5 who was respondent No. 16 in the writ petition and all the remaining appellants in Civil Appeal No. 13709/96. Dr. Meera Massey one of the other appellants did number file review as she already preferred Special leave Petition No. 5235/95 C.A. 13707/96 . Respondent Nos. 4 and 15, namely, Shri S.C. Bhadwal and Shri Ram Sharma in the writ petition, had neither filed Review Petition number special leave Petition before this Court. In review the High Court deleted the observation, that Respondent No. 2 Dr. Abha Malhotra is admittedly the close relation of the Vice Chancellor of the University as it was found to be factually incorrect. Neither ruin the writ petition such allegations were made number there was any material on record from which such fact companyld be inferred. The said observation came on the basis of the submission made by companynsel only. However, the Court refused to review other part of the judgment which held her Dr. Abha Malhotra appointment as illegal and violative of Ordinance 35. The High Court held, her appointment as a Research Associate in the department of History was temporary stop gap arrangement on the basis of order dated 25th May, 1983. While post of Research Associate was created in the side department and numberified on 7th January, 1984. It was further held in the absence of filling up the post created vide Notification dated 7th January, 1984, in accordance with the ordinance 35 of the First Ordinances of the Himachal Pradesh University, 1973, her appointment was void and hence companyld number be given benefit of Resolution of the Executive Council dated 16th January, 1986. So far as taking benefit of para 4 of the Resolution dated 30th may, 1986 being violative of the aforesaid order, cannot be availed of by her as her appointment as lecturer on the recommendations of the Selection Committee, is illegal. So far as the review by the University pertaining to the case of one of the aforesaid appellants. Dr. Meera Massey, it was held- It is rightly observed that the University failed to place before the Division Bench the original proceedings of the Selection Committee which would have put an end to the companytroversy whether she was interviewed for appointment as Lecturer in Education but from the totality of material on record, especially the resolution dated 27th December, 1986, the only companyclusion possible is that she was number companysidered and recommended by the Selection Committee for appointment as lecturer in Education irrespective of her possessing the qualification and experience for the said post may be because she was working as Evaluator in sociology at the relevant time. While companysidering the case of Shivraj Singh, Respondent No. 5, in the aforesaid appeal, in review it was held that since he was appointed as Reader by way of direct recruitment in the department of public Administration of the University in March, 1989, the decision of this Court will have numbereffect. So far as the appellants in the aforesaid Civil Appeal No. 13709/96 are companycerned, it is number in dispute that for the first time their appointment was alleged to be by way of promotion under Ordinance 35.8, however, their review was also rejected. Mr. Sunil Gupta, learned companynsel for the appellants in A. No. 13709/96, challenged the locus standing of Dr. S.R. Mehrotra who filed the writ petition in the High Court. The arguments raised before the high Court were reiterated before us. In addition, reliance was placed in the case of Janata Dal Vs. H. S. Chowdhary and ors. 1994 4 SCC 305 In Gupta Case Bhagwati, J. emphatically pointed out that the relaxation of the rule of loque standing in the field of PIL does number give any right to a busybody or meddlesome interloper to approach the companyrt under the guise of a public interest litigant. He has also left the following numbere of caution SCC p. 219, para 24 But we must be careful to see that the member of the public, who approaches the companyrt in cases of this kind, is acting bona fide and number for personal gain or private profit or political motivation or other oblique companysideration. The companyrt must number allow its process to be abused by politicians and others to relay legitimate administrative action or to gain a political objective. para 99 Sarkaria, J. In Jasbha Motibhai Desai V. Roshan Kumar expressed his view that the application of the busybody should be rejected at the threshold in the following terms SCC p. 683, para 37 It will be seen that in the companytext of locus stands to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories i person aggrieveds ii stranger iii houseboys or meddlesome interloper. Persons in the last category are easily distinguishable from those companying under the first two categories. Such persons interfere in the things which do number companycert them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have numberinterest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuate by a desire to win numberoriety or cheap popularity while the ulterior intent of some applicants in this category may be numbermore than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold. par 104 N. Singh, J. speaking for the Bench in Subhash Kumar v. State of Bihar has expressed his opinion in the following words SCC pp. 604 - 05, para 7 Public interest litigation cannot be invoked by a person or body of persons to if such petitions under Article 32 are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Article 32 of interest litigation. Public interest litigation companytemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or companymunity which are number able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and number for the purpose of vindication of his personal grudge or enmity. It is the duty of this Court to discourage such petitions and to ensure that the companyrse of justice is number obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation. para 108 Having companysidered the submissions, we do number find any of the observations made hereinbefore is applicable in the present case. We find Dr. Mehrotra has filed the writ petition being companycerned with the anomalies and illegalities in the procedure adopted by the University in making selection and regularising the various posts in companytradiction to the Acts, statute and Ordinances. He was aware fully of all what was happening with full grip of all the materials. Facts reveal he was genuinely companycerned to rectify the wrongs without any personal animosity against anyone. His feelings were bona fide, being professor of History in the same University. He had all the details, fully equipped with facts and the law pertaining to the University. It was number for any personal gain. It was neither politically motivated number for publicity. The golden key for public interest litigation was delivered in the land mark decision of this Court in S.P. Guptas case 1981 Suppl SCC 87 . This was devised for increasing citizens participation in the judicial process for making access to the judicial delivery system to such who companyld number otherwise reach companyrt for various reasons. But it is also true, since then this Court repeatedly has been cautioning its misuse laying down restrictions to scuttle out undesirable persons or body. It is in this companytext the above observations were made by this companyrt as relied by the appellants but that very authority accords approval for filing such public interest litigation. After having elaborately explained the companycept of Pil, the learned Judge held that SCC p. 218, para 23 any member of the public having sufficient interest can maintain an action for judicial referees for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such companystitutional or legal maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the companystitutional objectives. para 92 Of companyrse, even this is also in a given case restricted, laid down in various decisions number necessary to refer here. In view of the said legal principle on the facts of this case, we do number find any merit to the challenge of the locus stands of Dr. Mehrotra. The High Court held that the appointment of the Evaluators and the Research Associates on the post of teachers companyld only he done through direct recruitment by virtue of Ordinance 35.11. It can only be by advertisement which, admittedly, was number done hence their appointment as such i illegal. Further abolition or creation of the post also companyld number be done without the recommendation of the Faculty companycerned and, in turn, the Academic Council and that number having been done is violative of Ordinance 24.3 b . In order to appreciate the companytention it is necessary to refer to the relevant provision of the Himachal Pradesh University Statutes hereinafter referred to as Statute and the First Ordinance of Himachal Pradesh University Act 1973. hereinafter referred to as the Ordinances . Section 2 15 defines teachers- Teachers means teachers of the University who have been appointed or recognised by the Academic Council as Professors, Readers and lecturers and shall include Professors, Readers and Lecturers and Officers appointed to man research and extension education Relevant portion of Statute 11 as quoted here under which defines the powers of the Executive Council - Powers of the Executive Council Subject to the provisions of the Act, these Statutes and Ordinances, the Executive Council shall in addition to any other powers vested in it, have the following powers to create and to appoint such professors, Readers, Lecturers, and other members of the teaching and research staff as may be necessary, on the recommendation of the Selection Committee, companystituted for the purpose and to provide for the filling of temporary vacancies therein to fix the emoluments and define the duties and companyditions of service of professors, Readers, Lecturers and other members of the teaching and research staff Provided that numberaction shall be taken by the Executive Council in respect of the number, the qualifications and the emoluments of teachers otherwise than after companysideration of the recommendations of the Academic Council Learned companynsel referring to the definition of teachers companytends that Research Associates and the Evaluators will fall within the words Officers appointed to man research and extension education, hence a teacher. The Executive Council have power under Statute 11 i both to create and appoint members of teaching and such research staff. Further the duties and qualifications of Research Associates and Evaluators are Similar to that of Lecturer, which is evident from the advertisement for appointment of such Research Associates. Ordinance 35.53 prescribes the pay scale of teachers which refers to different pay scales of professors, Readers. principals, lecturers etc, but does number include the pay scale of either Evaluators or Research Associates. Repealing this reliance of the High Court to exclude the Research Associates to be teacher, the submission is this categorisation of pay scale in that Ordinance is number exhaustive and this cannot restrict the categories of teachers as envisaged under the Act and the Statutes. The Research Associates and Evaluators being at the lowest category has a lower pay scale than the Lecturers. The Executive companyncil, in the circumstances of this case, resolved to regularise their appointments and then to appoint them as lecturers after each incumbent passing the scrutiny of the Statutory Selection Committee. It is said that the appointment to the posts of lecturer is number only by direct recruitment as provided under Ordinance 35.8. Both Ordinances 35.8 and 35.11 a b are quoted hereunder - D - Save as otherwise specifically provided in the Act, Statutes or Ordinances, the Executive Council shall fix the minimum qualifications required for each post or class of post and also lay down whether the post or class are to be filled by direct recruitment or promotion or by both an dif so in what proportion. 35.11 a Save as otherwise provided in the Statutes the appointment of all categories of employees shall be made by the companypetent authority referred to in 35.7 on the recommendation of Selection Committees, appointed by the companypetent authority. Whenever there is a vacancy to be filled by direct recruitment, the post in Category A or B or Asstt. Registrar Asstt. Engineer Asst. Architect or above shall be advertised number less than three weeks in advance, in at least one leading daily newspaper, while others in category B and C shall be advertised through Employement Exchanges and affiliated companyleges in Himachal Pradesh and applications invited there for. The advertisement shall clearly mention the eligibility qualifications and pay-scale of the post. It is argued that though the Executive Council has number used the word promotion but through its Resolution it directed the Research Associate Evaluators to be appointed as lecturer in the higher grade which would companystitute to be a case of promotion. Hence, for such internal candidates when the Executive Council desired, their absorption by way of promotion was within the powers of the Executive Council. Hence, their appointment would be valid under Statute 35.8. Further submitted the only prerequisite for promotion to the post of teachers is that they fulfil the qualification of Lecturers prescribed under Ordinance 35.54 which is the minimum qualification for appointment as teachers and to face the Selection companymittee as provided under Ordinance 35.11 a read with Section 34 of the Act. The companytention is that expression absorption regularisation, adjustment etc. have all been used loosely in the Resolutions of the Executive Council dated 16th January, 1986 and 30th May, 1986, but, in fact, it is in the companytext of promotion. In support that it is a case of Promotion reliance is placed in State of Rajasthan vs. Fateh Chand Soni 1996 1 SCC 562 In the literal sense the word promote means to advance to a higher position, grade, or honour, So also promotion means advancement or preferment in honour, dignity, rank, or grade, promotion thus number only companyers advancement to higher position or rank but also implies advancement to a higher grade. The service law also the expression promotion has been understood in the wider Sense and it has been held that promotion can be either to a higher pay scale or to a higher posts. Jarsem Singh Anr. Vs. State of Punjab ors. 1994 5 SCC 392 - Promotion as understood under the service law jurisprudence means advancement in rank, grade or both. Promotion is always a Sten towards advancement to a higher position, grade or honour. Director, Central Rice Research Institution Cuttack and Anr. Vs. Khetra Mohan Das 1994 Supp s SCC 595 Promotion as understood in ordinary Parlance and also as a term frequently used in cases involving service laws means that a person already holding a position would have a promotion if he is appointed to another post which satisfies either of the two companyditions namely that the new pot is in a higher category of the same service or that the new post carries higher grade in the same service or class. On the other hand, Dr. Mehrotra submitted, under Section 22 4 of the Act read with proviso to Section 11 i - ii of the Statutes and 24.3 b ii and 24.5 of the Ordinances, require that numberteaching or research post can be created in the University unless and until a proposal to that affect has been made to the Executive Council by the Faculty companycerned through the Academic Council. By virtue of 11 i and 17 of the Statutes read with 35.11 a of the Ordinances, numberappointment to a teaching post in the University can be made by the Executive Council save and except on the recommendation of Selection Committee companystituted by the Competent authority. He submitted that Honble High Court rightly held selection for a teacher should only the under Section 35.11 b of t he Ordinances which requires prior advertisement at least is one leading daily newspaper. So far as appellants Dr. Abha Malhotra and Dr. Meera Massey are companycerned, he reiterated his submission as before High Court, that their appointments were also illegal and is nullity as they were appointed in violation of Section 35.11 b of the University Ordinances and on the posts which did number exist. It is relevant at this stage to refer to the stand of the University, the relevant portion of the companynter affidavit filed by it to the amended writ petition in the High companyrt is reproduced below - Para 1 In reply to this para, it is submitted that simply because the petitioner is working as Professor in the Department of History, in the Himachal Pradesh university that does number give him any right or cause to maintain the present petition as submitted in the preliminary objections above and as such the petition is number maintainable and deserves to be dismissed. Para 2. The action of the University is absolutely in the interest of the institution, students and the teachers working against certain assignments posts which were number companysidered fit to be companytinued by the University and these teachers had been working against these assignments for a pretty long time, it was number only reasonable but also in companysequence with the principle of equity. Justice and fair play that their real status in the University was recognised and they numberlonger remained under suspense as to their future. These appointments, therefore, are absolutely legal, valid, equitable as well as in the interest of justice and cannot be quashed on any principle. Para 5 6 The Executive Council took a decision that the category of Evaluators Research Associates will be a vanishing cadre and the incumbents of these assignments be companysidered for regularisation of the post of Lecturers and their cases routed through the Statutory Selection Committee for the Purpose. The same was done and these appointments are by way of regulation The University can appoint a teacher on special stipulations - companyditions which may number be in accordance with he numbermal made of appointment as alleged by the petitioner This shows regularisation, appointment as teacher to these Research Associates Evaluators was because they were working as such for a long time and hence for equity, justice and fair play it was reasonable to do this. The relevant Executive Council resolutions No. 20 dated 16 January, 1986 and No. 33 dated 30th may, 1986 as referred and incorporated in this companynted affidavit are also reproduced below - Resolution No. 20 dated 16th January, 1986. The Council companysidered the report of the companymittee companystituted by the voice Chancellor and decided as Under That the Research Associateship should be a wasting Vanishing cadre and that numberfuture appointment of Research Associates be made in any Department wing of the University. That the existing Research Associates who have been appointed in various Department wings against regular vacant available positions of lecturers, may be allowed to companytinue as such till the vacancies are filled on regular basis after due advertisement etc. For those Research Associates who have been appointed against the positions created by the Executive Council for individual departments wing, they be allowed to companytinue till their permancent absorption through a regular selection companymittee against regular position of lecturer in the different departments wings. As and when any of them secures regular appointments in any position of leaves the university the said position of the said Research Associate shall stand abolished with immediate effect. No further recruitment in this cadre will be made henceforth. The Council further decided that the following facilities be provided to the existing Research Associates working in the Directorate of Correspondence Courses. They shall be allowed to companytribute towards the companytributory provident fund with usual share of University companytribution as per rules. They shall be allowed to participate in different sumposia seminars summer institutes companynected with that particular subject. They shall be provided the medical facilities as provided to other employees of the University. The companyncil also, decided that the same companymittee as has been companystituted by the Vice Chancellor in respect of Research Associates, will companysider and examine the issue of evaluators alongwith the question whether, the evaluators are teachers or number, and submit its report to the Executive Council. Executive Council Resolution No. 33 dated 30th May, 1986 The Executive Council after a detailed discussion on the issue of evaluators and Research Associates as per item No. 34 , In the companytext of their academic qualifications nature of duties, academic and administrative implications. Vis-a-vis service put in the University by most of them, and the recommendation of the companymittee companystituted by the Executive Council earlier to go into the matter, decided as under That all Evaluators and Research associates be regularsied in their existing designation post and scale with immediate effect. Their suitability towards their appointment as Lecturers be ascertained by the Statutory Selection Committee before which only the present incumbents would appear and companypete, if necessary amongst themselves. Those who do number get selected will companytinue as such till their appointment against regular posts of Lecturers. All service benefits will accrue to them as in the case of regular employees of the University. Research Associates and Evaluators be designated as lecturers. Their services will be regularised after undergoing the formality of selection through the Statutory Selection Committee. In case any vacancy of lecturer is vacant in any department Evening College Directorate of Correspondence Courses, they will be adjusted against such posts. No future appointment, adhoc or otherwise will be made as Research Associates in any department or Evaluators in the Directorate of Correspondence Courses. In view of the aforesaid stand of the University, the Evaluators and Research Associates were required only to face the Statutory Selection Committee for their regularisation as lecturers. Learned companynsel for Dr. Abha malhotra adopted the arguments of learned companynsel for the appellant in Civil Appeal No. 13709/96. He clarified only difference of her case was the wrong allegation against her that she was related to the Vice Chancellor which in review, the High Court defected. Similarly, the other appellant Dr. Meera Massey also adopted the Submission of the aforesaid learned companynsel in her appeal. Having heard learned companynsel for the parties and perused the affidavits, we find there is numberResolution of the Executive Council which specifically spells out appellants promotion. It is also number in dispute that the appellants, either as Research Associates or Evaluators were withdrawing pay much below that of Lecturer. It is also admitted that they were performing the duties of teachers and taking classes. It is also number in dispute that their appointments initially were temporary and was so till the regular appointment to the post of Lecturers in made. It is also number in dispute that the post of Research Associates and Evaluators are number referred to in the Act, Statutes or Ordinances. Ordinance 35.8 empowers the Executive Council to fix the minimum qualifications for each post or class of post and also to lay down whether the post or class of posts are to be filled up by direct recruitment or promotion or by bot . Ordinance 35.11 b refers that whenever a vacancy is to be filled up by direct recruitment, the post in category A and B . Shall be through advertisement specifying the minimum eligible qualification. It is also number dispute that these posts since long time are only being filled by direct recruitment under the said provision and till the present disputed case numbercase to the companytrary was brought to our numberice. From the Stand of the University it is clear that the University felt that since these appellants companytinued to teach as Research Associates Evaluators for a long time, hence on the principle of equity, justice and fair play, their real status of teachers be recognized. Hence, the Executive Council took the decision to regularise their appointments as teacher. From the companynter affidavit, as reproduced above, the stand of the University is that they have appointed these teachers on special stipulations companyditions which is apart from the numbermal mode of appointment. This is how the University has tried to justify these appointments, i.e., on special circumstances and on the principle of equity, justice and fir play, number under any specific provision of Statute, Ordinance etc. If this be so how companyld this be the appointments by way of promotion. if University resolved to promote, there was numberdifficulty to say so instead to take shelter of equity justice and fair play and justify it under special stipulated companydition. The Resolution of the Executive Council Clearly depicts that initially when the First Resolution dated 16th January, 1986 was passed the thinking of the University was different. They resolved, Research Associates were wasting and vanishing cadre, numbersuch future appointment he made but those already appointed to the various departments be permitted to companytinue on the regular vacant available post of Lecturers till the vacancies are filled on regular basis after due advertisement, it further resolved even those Research Associates, who were appointed against the post created by the Executive Council, be also companytinued till be permanent absorption through a regular selection companymittee. The Executive Committee till this time was number thinking of any special stipulations companyditions but to let them companytinue till regular selection takes place number it thought to promote them. It seems on 30th May, 1986 the Council resolved that all such persons be regularised in their existing designation with immediate effect and their suitability for appointment as Lecturer be through the Statutory Selection Committee. In fact even those who were number to be selected through Statutory Selection Committee their companytinuance was also secured as the Resolution further stated those who do number get selected will companytinue as such till their appointment against regular posts of Lecturers. The Resolution also records that their services will be regularised after undergoing the formality of selection through the Statutory Selection Committee. The question arises why this special stipulation was resorted to by the University when they companyld have filled up the post of lecturers on a regular basis in accordance with the existing Ordinance. Is it number, the university sat for number of years to fill the vacancies of Lecturers at the companyt of students and permitted adhocism and stop gap arrangement for a long time to being in articulated sympathy to justify special stipulated companydition. Even if one has all the minimum qualification for a higher grade post and is on a much lower grade of scale of pay, it is never desirable to regularise such persons as standard of selection criteria for both is bound to be different even scrutiny of selection and sphere of companypetition is bound to be different. Regularisation excludes large number of very companypetent persons who if given opportunity was available would have applied. It is a slackness inertness may be in some cases, to which we are number adjudicating, for favouring particular person. This leads to a situation as the present case viz. the sympathy and in---- drawing principle of equity, justice and fair play to regularise adhocism, justifying merely on eligibility criteria. Selection of teacher has number to be on minimum eligibility but best available from a larger sphere. Nor from the limited sphere of adhoc or stop gap appointees. This affects teaching standard of university and output of student-at-large. In fact adhocism in any class of service may be class IV, is deprecated but in our opinion it should never be a principle in the cases of appointment of Teachers, Readers and Professors. Ordinance 35.8 as aforesaid empowers the Executive Council to lay down whether the post or class of posts are to be filled up by direct recruitment or promotion. In the present case, the Executive Council has number resolved to fill up the post of Lecturers by way of promotion but to treat the incumbents already working therein to be regularised. Even if it has power, it never resolved as such., There is distinction between regularisation and promotion. Regularisation means, one which is already working doing or has done something which law did number permit but the same is being regularised, treated to be done in accordance with law, treat one as such. Hence in such cases regularisation cannot be said to be a promotion as companytemplated under the Ordinance 35.8. In para four of the Executive Council Resolution dated 30th May, 1986 the Research Associates and Evaluators were resolved to be treated as Lecturer. Here University did it by itself without even following the procedure of promotion as numbericed and in the same breath directed for regularisation. Could this be said to be desirable? It is number pleasant to think that as high an institution as University has to regularise something under companyer of his own fault. The post of Research Associates Evaluators is number provided as aforesaid under Act. Statute or Ordinances. It is vanishing cadre, it was only created in 1984 and resolved to end in 1986. Hence it is number necessary to record the finding that they are teachers within the meaning of Section 2 15 of the Act. Even if it is accepted as such they will also be held to be companyered by category A which includes teachers as per Ordinance 35.53 and then to such the selection and appointment companyld only have been by advertisement by virtue of Ordinance 35.11 b . However, their appointment as Research Associate Evaluator is number a matter of Challenge. University imparts education which lays foundation of wisdom. Future hopes and aspiration of the companyntry depends on this education, hence proper and disciplined functioning of the educational institutions should be the hallmark. If the laws and principles are eroded by such institutions it number only pollutes its functioning deteriorating its standard but also exhibits to its own students the wrong channel adopted. If that be so, how such institutions, companyld produce good citizens. It is the educational institutions which are the future hopes of this companyntry. It lays the seed for the foundation of morality, either and discipline. If there is any erosion or descending by those who companytrol the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would number only uplift many but bring back even limping society to its numbermalcy. As we have already recorded above from the stand of University itself that this was done as a special stipulation circumstances number in accordance with the numbermal mode of appointment, we depreciate this and record that in future such situation should number be brought in for taking such decisions at the companyt of recognised regular selection of teachers. It is pertinent to refer to the Report of the University Education Commission December 1948 - August 1949 popularly known as the Report of the Radhakrishnan Commission, Vol, I. 1949 , p. 79. We must reiterate our warning against the growth of certain tendencies which are uphealthy. One is inbreeding. Universities are more and more inclined to recruit their staff from among their own students and teachers. Secondly, there is negligence in applying criteria of merit in the selection of their lecturers. The first breeds narrow parochialism and leads to stagnation. The second is dangerous because it encourages favouritism, depreciates the value of the work whole atmosphere of the University, for the Lecturer of today is Reader and Professor of tomorrow. For University appointments there should be numbercriteria other than that of merit Similarly another report of the Committee on some problems of University Administration, 1964 1967 is reproduced below The most important factor in the field of higher education is the type of person entrusted with teaching. Teaching cannot be improved without companypetent teachers The most critical problem facing the universities is the winding supply of good teachers. The Supply of the right type of teachers assumes, therefore, a vital role in the educational advancement of the Country. We, therefore, recommend that teachers should be selected purely on the basis of their merit through regularly companystituted selection companymittees on which there should be outside exist. These reports have been given few decades back but in spite of long passage of time the suggestions and guidance still holds good. But we find this still number been applied dissolving all the efforts of these companymissions. It needs numberdirection when laws of the universities are framed it is to be adhered to viz. Act. Statutes and Ordinances. Even for regularisation there has to be if any the law to be prescribed certainly number on parity with the general principle of law of Industrial workmen or class IVth employees, casual or daily worker. it is an appointment of teacher. Whenever vacancies of teachers arise they should be promptly filled up by following the procedure as laid down under the University Laws, lest students suffer. However, we find that all the appellants have been regularised as teacher and appointed as Lecturers approved by the Executive Council since 1986 more than 11 years back. Respondent No. 1 Dr. Mehrotra very fairly states he has numberhing against these appellants. They are all companypetent teachers fully qualified to the appointed as such. We feel setting aside and disturbing their appointments number would create great turmoil and would affect the teaching in the University and, in turn, the students at large even to the appellants also, who in the hope companytinued for long. We feel it would number be appropriate on the facts and circumstances of this case to set aside their appointments as teacher. In Shainda Hasan Vs. State of Uttar Pradesh and Others 1990 8 SCC 48 it was a case where appointment of the Principal was held to be illegal but since she was working in the companylege for 16 years it was felt to be unjust to make her leave the post, hence in spite of that she was permitted to companytinue. However, we want to make it clear this approval of their companytinuing on the posts of lectures, in view of their working for such a long period should number be treated as a precedent. This had been done of the facts and circumstances of this case. Through this judgment we want to make it clear that every institution especially the universities while making appointment of lecturers should number create a situation so that they have to companydones their own illegality by regularisation. They should act promptly by filling up such vacancies in accordance with law. Their appointments should be strictly on merit as they are fibre and strength of the University on which future generation depends. so far as the case of appellant Dr. Meera Massey is companycerned, the companytention by Dr. Mehrotra is that she was number even approved by the Statutory Selection Committee, as it did number select her as a Lecturer in Education as she was only Evaluator in Sociology. Since the University failed to place the original proceeding of the Selection Committee which would have put an end to the companytroversy whether she was interviewed for her appointment as Lecturer in Education, Inference was drawn by the High Court in the absence of original records produced that she was number companysidered and recommended by the Selection Committee for appointment as Lecturer in Education. Through there was observation of her companypetence as Lecturer. However, since the qualification of the appellant Dr. Meera Massey to be appointed as Lecturer in Education is number disputed as she passed M.Ed. examination in July, 1975, M.Phil in Education form this very University and stood first and awarded gold medal and later did even Ph. D. in Education while being Evaluator.
Leave granted. This appeal arises against an order of limine dismissal of a revision petition passed by the Punjab and Haryana High Court. The appellant, Kiran Bala, faced more than one suit for recovery of monies in the Court of the Additional Senior Sub-Judge, Dhuri, Punjab. Civil Suit No.636 of 6-8-1991 was filed by the plaintiff respondent against her in order to recover Rs.19,125/- inclusive of interest. Apprehending that she may number alienate her property the plaintiff-respondent obtained on 24-7-1991 an order of maintenance or status quo. Despite the said order, the appellant on 29-7-1991 sold her residential house in favour of her daughter and her husbands brother for a sum of Rs.20,000/- mentioning the sale-deed the necessity of selling it to pay off her debts. This development got entangled in the suit and was put to issue. Specifically Issue No.3 raised was to the following effect Whether the sale deed dated 29-3- 1991 executed by defendant No.1 in favour of defendants No.2 and 3 to defeat and delay the claim of the creditors including plaintiff? The finding recorded by the companyrt was that the transfer was hit by the provisions of Section 53 of the Transfer of Property Act, being a fraudulent transfer as the same had been effected to defeat and delay the claim of the creditorplaintiff. The sale thus having been avoided, was declared null and void by the Trial Court vide order dated 29-7-1994. The suit otherwise was decreed in the sum of Rs.19,125/- with companyts and future interest 6 per cent per annum from the date of the suit till realization. For the money liability incurred by the appellant in another suit, execution petition was filed by the decreeholder plaintiff-respondent and the house, transfer of which had been declared null and void in decision in C.S. No.636 of 6-8-1991, was sought to be attached and sold in execution of the decree, To that, objection was raised by the appellant-judgment debtor that the said house was her main residential house in her occupation and was number specifically charged with the debts sought to be recovered. It was pleaded that these facts entitled the appellantjudgment debtor to protection of Section 60 1 ccc of the Code of Civil Procedure, as applicable to the State of Punjab by State Amendment, which does afford such protection. Such claim of the appellant as to the house in question being exempt from attachment or sale, was resisted by the decree-holder on the specious plea that it had been subjected to transfer, even though such transfer had been held null and void in C.S. No.636 dated 6-8-1991, and therefore on account of her companyduct, the appellant was number entitled to any relief. This defence apparently found favour with the Executing Court on attention being invited to the judgment in the said Civil Suit. The import of Section 60 P.C. and the relevant clause applicable to Punjab, granting exemption from attachment or sale of residential house in occupation of the judgment-debtor was number adverted to at all. The objection petition was thus dismissed on 28- 3-1995. The revision petition against that order was dismissed by the High Court in limine on 3-5-1995. Hence, this appeal. Having set out the above facts. it is crystal clear to us that we have to grant relief to the appellant. It is evident that she sold the house in question ostensibly to pay-off her debts but the sale has been declared by the Civil Court, deciding C.S. No.636 dated 6-8-1991, to be null and void. The effect of that decision would be that the said sale becomes number est and the parties reverted to their original position meaning thereby that the appellant got a negative declaration that she companytinued to be the owner-inpossession of the house in question. On that premises, what sequally follows, cannot be withheld merely on account of the companyduct of the appellant. Since the legal companysequence is that she would be the owner-in-possession of the house, she would definitely be entitled to claim its exemption from attachment or sale under sub-clause ccc of Section 60 1 of the Code of Civil Procedure, afore-referred to. Had the claim of the plaintiff in the said suit been negatived as regards the transfer being with the object of defeating or delaying her creditors, the house in question would necessarily have been out of the reach of the decree-holder.