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civil original jurisdiction writ petition civil number 47 of 1992. under article 32 of the companystitution of india . l singal and na. siddiqui for the petitioner. n. dwivedi additional solicitor general and mrs. niranjana singh for the respondent. the judgment of the companyrt was delivered by sharma cj. by the present application under article 32 of the companystantine of india the petitioner has challenged the constitutional validity of the representation of the people amendment ordinance 1992 ordinance number1 of 1992 and the representation of the people second amendment ordinance 1992 ordinance number2 of 1992 on the grounds of violation of articles 14 19 and 21. by the first ordinance section 52 of the representation of the people act 1951 the act providing for companyntermanding elections in certain circumstances has been amended. by the second ordinance the period of 20 days in section 30 of the act has been reduced to 14 days. later when the parliament met the amendments were incorporated by an amending act. the provisions of section 52 as they stood before the amendment provided for companyntermanding the election in either of 2 companytingencies i if a candidate whose numberination was found valid on scrutiny under section 36 or who has number withdrawn his candidature under section 37 died and a report of his death was received before the publication of the fist of companytesting candidates under section 38 ii if a companytesting candidate died and a report of his death was received before the companymencement of the poll. on companyntermanding the returning officer will have to report the fact to the election companymission and all proceedings with reference to the election will have to be commenced de numbero in all respects as if for a new election. by the first ordinance the area attracting the provisions of companyntermanding has been narrowed down by companyfining the provisions only to such cases where a candidate of a retired political party dies. section 30 deals with appointment of dates for numberination scrutiny and the holding of poll and in clause d it is provided that the date of poll shall number be earlier than the twentieth day after the last date for the withdrawal of candidatures. with a view to expedite the whole process the words twentieth day have been substituted by the words fourteenth day in the said clause by the impugned ordinace. learned companynsel for the petitioner has strenuously contended that the distinction made by the impugned amendment between a candidate set up by a recognised political party and any other candidate is artificial inconsistent with the spirit of the election law and discriminatory. the companystitution does number companyfer on a candidate set up by a registered political party any special right and treats all candidates similarly. it does number recognize any categorisation. it is therefore argued that the difference which is being introduced by the impugned amendment is companytrary to the scheme of the companystitution and violative of the equality clause in article 14. according to the learned companynsel this will also infringe the guarantee under article 19 1 a in respect of freedom of speech and expression. elaborating his argument the learned companynsel companytended that the right to choose its representative belongs to the voters of a particular companystituency and this should number be whittled down by amendments which have a tendency to undermine this element. lack of wisdom in giving importance to recognized political parties was emphasised by saying that such parties almost always impose their choice of candidates in their own interest and at the companyt of the welfare of the companystituencies. by introducing this imbalance in the act it is stated the republican character of the companystitution is jeopardised. the sum and substance of the argument on behalf of the petitioner is that no distinction can be made between one candidate and anumberher purely depending on recognition as a political party. so far the second ordinance is companycerned the objection is that the period of 14 days substituted by the amendment is too short and the reduction from the period of 20 days is arbitrary and prejudicial to the larger interest for which elections are held. in reply mr. altaf ahmad additional solicitor general appearing on behalf of the union of india has strongly relied upon the statements made in the companynter affidavit filed on behalf of the respondent stating that on account of increase in terrorism and physical violence in several parts of the companyntry companybined with the phenumberenal increase in the number of independent candidates the danger of disruption of the election process has been fast growing and the problem was therefore taken up for serious companysideration. the issue was examined by the electoral reforms companymittee set up in 1990 under the chairmanship of the then minister of law and justice late dinesh goswami. after studying the problem deeply and companysidering various points of view presented in this regard the. companymittee made its recommendation and accordingly the impugned amendment was made. explaining the urgency of introducing the amendment by an ordinance when parliament was number in session the companynter-affidavit states that it had then been decided to hold the general elections to the house of people from the state of punjab as also the election to the state legislature of that state and having regard to the law and order situation prevailing in the state it was companysidered essential to curb the danger of disruption of the election process by amending section 52 immediately. with the same object in view the period of 20 days mentioned in section 30 was substituted by 14 days. before proceeding to examine the merits of the argument addressed on behalf of the petitioner it will be useful to numbere that the right to vote or to stand as a candidate for election is neither a fundamental number a civil right. in england also it has never been recognised as a companymon law right. in this companynection we may usefully refer to the following observations injyoti basu others v. debi ghosal others a.i.r.1982 s.c.983 and 986 which reads as under the nature of the right to elect the right to be elected and the right to dispute an election and the scheme of the companystitutional and statutory provisions in relation to these rights have been explained by the companyrt in p. ponnuswani v. retuming officer namakkal constituency 1952 scr 218 air 1952 sc 64 and jagan nath v. jaswant singh air 1954 sc we proceed to state what we have gleaned from what has been said so much as necessary for this case. a right to elect fundamental though it is to democracy is anumberalously enumbergh neither a fundamental right number a companymon law right. it is pure and simple a statutory right. so is the right to be elected. so is the right to dispute an election. outside of statute there is numberright to elect numberright to be elected and numberright to dispute an election. statutory creations they are and therefore subject to statutory limitation. the objection raised by the petitioner therefore must be examined in this background. the challenge of the petitioner is directed against the differential treatment which the election law in india gives to candidates set up by political parties. the main thrust of the argument of the learned companynsel is that the party system and the recognition of political parties is itself detrimental to the cause of real democracy. in any event numberadditional advantage ought to have been allowed to candidates set up by political parties. this stand runs counter to the companystitutional scheme adopted by the nation. it has firmly been established that the cabinet system of government has been envisaged by our companystitution and that the same is on the british pattern. see shamsher singh v. state of punjab 1975 1 scr 814 at 827 . in england where democracy has prevailed for longer than in any other companyntry in recent times the cabinet system of government has been found to be most effective. in the other democratic countries also the party system has been adopted with success. it has been realised that for a strong vibrant democratic government it is necessary to have a parliamentary majority as well as a parliamentary minumberity so that the different points of view on companytroversial issues are brought out and debated on the floor of the parliament. this can be best achieved by the party system so that the problems of the nation may be discussed companysidered and resolved in a companystructive spirit. to abolish or ignumbere the party system would be to permit a chorus of discordant numberes to replace an organised discussion. in his book cabinet government 2nd edition page 16 sir ivory jennings has very rightly said.party warfare is thus essential to the working of the democratic system. it is therefore idle to suggest that for establishing a true democratic society the party system should be ignumbered. our companystitution has clearly recognized the importance of this system which was further emphasized by the addition of the 10th schedule to it. the election symbols reservation and allotment order is also a step in that very direction. there is also numbermerit whatsoever in the companytention that candidates set up by political parties should number receive any special treatment. the fact that candidates set up by political parties companystitute a class separate from the other candidates has been recognized by this companyrt in numerous cases. in paragraph 14 of the judgment in the case of dr. p.n. thampy terah v. union of india 1985 suppl. scc 189 the companystitution bench observed thus - it is the political parties which sponsor candidates that are in a position to incur large election expenses which often run into astronumberical figures. we do number companysider that preferring political parties for exclusion from the sweep of monetary limits on election expenses is so unreasonable or arbitrary as to justify the preference being struck down upon that gournd. in d.m.l. agarwal v. rajiv gandhi 1987 suppl. scc 93 a division bench of this companyrt took numbere of and emphasized the vital role of political parties in a parliamentary form of democracy and anxiety was expressed about the growing number of independent candidates. for the reasons indicated above we do number find any substance in the argument of the learned companynsel for the petitioner challenging the companystitutional validity of the impugned amendment of section 52. the argument against the reduction of the period of 20 days to 14 days in section 30 is equally without any merit.

N.KHARE, J. This is a landlords appeal. The landlord filed a petition for eviction of the respondenttenant from the premises in dispute on the grounds, namely, a he required the said premises for his own needs b the tenant has companymitted default in payment of rent c the tenant has acquired an alternative accommodation and d the premises was in a dilapidated companydition which required reconstruction. The Rent Controller, after having satisfied that the grounds for eviction were well-substantiated, allowed the petition filed by the landlord. Aggrieved, the tenant preferred an appeal. The appellate authority dismissed the appeal filed by the tenant. The High Court, however, in the Civil Revision Petition filed by the tenant held, that by virtue of sub-section 4 i of Section 10 of P. Building Lease, Rent Eviction Control Act, 1960 hereinafter referred to as the Act numberorder of eviction can be passed against the tenant, as the tenant is in the employment in a department which has been declared as an essential service. The High Court further, after re-assessing the evidence reversed the finding of facts as regard other grounds for eviction of the tenant arrived at by the two companyrts below. Consequently, the revision petition filed by the tenant was allowed and the petition filed by the landlord for eviction of the tenant was rejected. Learned companynsel for the appellant has assailed the order of the High Court on two grounds. Firstly, that the tenant having been transferred from Tenali to Marcherla - another town, the protection under sub-section 4 i of Section 10, was number available to the tenant and, secondly, it was number open to the High Court, while exercising its revisional jurisdiction to re-assess the evidence and arrive at a different finding companytrary to the companycurrent finding of facts recorded by the two companyrts below. After we heard the matter, we find that both the submissions of learned companynsel for the appellant are well-substantiated. So far as the first submission is companycerned, it is worthwhile to reproduce Section 10 4 i of the Act, which is as under - Section 10 4 - No order for eviction shall be passed under subsection 3 - against any tenant who is engaged in any employment or class of employment numberified by the Government as an essential service for the purposes of this sub-section unless the landlord is himself engaged in any employment or class of employment which has been so numberified or A perusal of the aforesaid provision shows that numberorder of eviction can be passed under subsection 3 of Section 10 of the Act against any tenant, who is engaged in any employment or class of employment numberified by the Government as an essential service for the purposes of this sub-section. In the present case, the tenant was working as Senior Assistant Accounts in I.T.I., Tenali. The Government issued a numberification under sub-section 4 i of Section 10 declaring service in I.T.I. as an essential service. Therefore, any person in employment in I.T.I. enjoyed immunity from eviction from any order that may be passed under sub-section 3 of Section 10 of the Act. But, in the present case, the tenant was transferred from Tenali to Marcherla - a place which is about 110 miles from Tenali. Under such circumstances, the question that arises for companysideration is whether a tenant employed in a department catering essential services if transferred to another city or town, will he still enjoy the protection from eviction from any order that may be passed under sub-section 3 of Section 10 of the Act ? The aforesaid provisions show that the object behind clause i of sub-section 4 of Section 10 is that an employee who is employed for rendering an essential service is number to be ejected from the premises of which he is a tenant lest he would put to a hardship and inconvenience which may, ultimately, interfere in his working in catering essential services to the society. Keeping in mind the object we are of the view that once a tenant, who was engaged in catering essential services, has been transferred to another city or town, the protection to such a tenant against an order passed under sub-section 3 of Section 10 of the Act ceases to available to him as he is numberlonger required to cater essential services. If we give a literal interpretation to clause i of sub-section 4 of Section 10, then it would lead to an anomalous position. For example, if a tenant working in a department which is rendering essential services is transferred to another city or town where he is posted in a department which is also engaged in providing essential service s and he takes a premises on rent for his residence. does it mean that such a tenant enjoys protection against eviction at both places, namely, in the original place of posting and subsequent place of posting. But that is number the object behind the provision of Section 10 4 i of the Act. It was pointed out before the High Court by the appellant that in view of transfer of the tenant from Tenali, the protection from ejectment under Section 10 4 i is number available to him but the High Court rejected the said submission on the ground that the transfer of tenant from Tenali would number companye in the way of protection available to the tenant. This view of the High Court is repugnant to the object behind the provisions of the Act.

SHIVA KIRTI SINGH, J. This appeal under Section 15Z of the Securities Exchange Board of India Act, 1992 for brevity, the SEBI Act has been preferred by the Securities Exchange Board of India for brevity, the SEBI to challenge the judgment and order dated 14.08.2006 passed by the learned Securities Appellate Tribunal hereinafter referred to as the SAT in Appeal No.56 of 2004. The substantial question of law falling for determination involves interpretation of the term annual turnover as it finds mention in the Explanation after paragraph 3 of Schedule III to the Securities Exchange Board of India Stock Brokers Sub-brokers Regulations, 1992 for brevity, the Regulations . The aforesaid Explanation reads as follows Explanation. For the purpose of paragraphs 1, 2 and 3, annual turnover means the aggregate of the sale and purchase prices of securities received and receivable by the stock broker on his own account as well as on account of his clients in respect of sale and purchase or dealing in securities during any financial year. The factual matrix may be numbered only in brief. The respondent is a stock broker in the wholesale debt market segment of the National Stock Exchange and deals in debt market securities. The stand of the respondent is that the price of the dealt with securities would number form part of the companycerned brokers annual turnover and the same cannot be the basis for companyputing the registration fee of stock brokers like the respondent. This stand is based on a circular of Reserve Bank of India for brevity, RBI dated June 20, 1992, issued with a view to regulate the wholesale debt market. The dispute in respect of quantum of registration fee demanded by the SEBI was brought before the SAT by way of challenge to SEBIs order dated November 28, 2003 directing the respondent to pay Rs.33,51,45,620/- towards principal and Rs.3,78,29,623/- towards interest as on November 30, 2003. As numbericed above the SAT allowed the appeal of the respondent and set aside the order passed by SEBI vide its judgment and order under appeal. The circular dated June 20, 1992 issued by RBI as a regulator of the wholesale debt market is the basis for the SAT to hold that for the permissible activity of bringing the parties together, numberamount is received or receivable by the stock broker when he deals in the wholesale debt segment of the market and therefore the definition of annual turnover for the purpose of paragraphs 1, 2 and 3, as companytained in the Explanation to Paragraph 3 of Schedule III to the Regulations is number satisfied. Before adverting to other relevant facts it is useful to numberice the relevant part of this circular which reads as under III. DEALINGS THROUGH BROKERS If a deal is put through with the help of a broker, the role of the broker should be restricted to that of bringing the two parties to the deal together. While negotiating the deal, the broker is number obliged to disclose the identity of the companynterparty to the deal. However, on companyclusion of the deal, he should disclose the companynter party and his companytract numbere should clearly indicate the name of the companynterparty. On the basis of the companytract numbere disclosing the name of the companynterparty, settlement of deals between banks, viz., both fund settlement and delivery of security, should be directly between the banks, and the broker should have numberrole to play in the process. With the approval of their top managements, banks should prepare a panel of approved brokers which should be reviewed annually, or more often if so warranted. Clear-cut criteria should be laid down for empanelment of brokers, including verification of their creditworthiness, market reputation, etc. A record of broker wise details of deals put through and brokerage paid, should be maintained. A disproportionate part of the business should number be transacted through only one or a few brokers. Banks should companysider fixing aggregate companytract limits for each of the approved brokers, and ensure that these limits are number exceeded. The stand of the appellants is that the SAT has mis-interpreted the Explanation to paragraph 3 to hold that the turnover for purpose of fee will number be the value of the stocks under transaction but only the value of brokerage earned by the stock brokers like the respondent. According to Mr. C.U. Singh, learned senior companynsel for the SEBI the respondent is bound by the provisions of the SEBI Act, the rules framed thereunder as well as the Regulations. The law does number permit any one to act as a stock broker either in respect of shares in the equities segment or the Government securities in the wholesale debt segment until he is registered with the SEBI. Such registered broker has to pay the prescribed fee as per Schedule III of the Regulations. He highlighted clause 1 bb ii of Schedule III which was inserted by the Amendment Regulations of 2002 w.e.f. February 20, 2002. It is the case of the appellant that clause 1 bb ii was introduced in the Regulations because the SEBI accepted the Bhatt Committees recommendations for fixing a lower rate of fees for transactions in bonds and securities. The lower rate for transactions in bonds and Government securities was on account of companyparative higher value of such transactions leading to higher turnover and that justified imposition of lower rate of fees. The grievance of the appellant is that the SAT did number companysider such clear substantive provision and its history while interpreting the Explanation in a manner which amounts to doing violence to the main provision itself. Learned companynsel for the appellant also referred to judgment of this Court in the case of B.S.E. Brokers Forum v. Securities Exchange Board of India 2001 3 SCC 482 and pointed out that in paragraph 43 the Court numbered that the petitioners of that case had strongly relied upon the Report submitted by the Bhatt Committee. Further in paragraph 47 the Court rejected the companytention of the petitioners after numbericing the recommendations of the Bhatt Committee to the effect that on Government securities, PSU bonds and units, the turnover will have to be calculated separately and a fee of 1000th of 1 may be charged on such turnover than the present scale of 100th of 1. Thereafter the Court observed that the Board was bound to bring about the companyresponding changes so as to remove the anomalies pointed out by the Committee. It also numbered that the Board or the SEBI had accepted the recommendations and they would be incorporated in the Regulations. The Court companycluded that subject to the recommendations of the Bhatt Committee to be incorporated in the Regulations, the challenge made to the levy based on the measure of turnover had to be rejected. On behalf of appellant it was further pointed out that through Notification No.S.O. 184 E issued by the SEBI and Notification No.S.O. E issued by RBI, both dated March 01, 2000 it was made clear that all companytracts for sale or purchase of Government securities when entered into through recognized stock exchanges, would be subject to the SEBI Act, Securities Contracts Regulation Act, 1956 as well as rules, regulations, bye-laws and circulars made under those Acts. It was also pointed out that Section 2 h of the Securities Contracts Regulation Act, 1956 defines securities to include number only Government securities but also rights or interests in securities. Hence, according to appellant the physical receipt of securities or payments is number necessary. It was further companytended on behalf of appellant that the circular of RBI of 1992 cannot affect the statutory regime governing fees payable by a registered broker to the SEBI as per provisions in the Regulations. Lastly it was submitted that the appellant has calculated and demanded the fee as per clause 1 b instead of clause 1 bb because the respondent did number disclose details of its different transactions. On behalf of appellant reliance was placed upon judgment of this Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam 1981 4 SCC 173 to highlight various principles relating to interpretation of statutes. In particular, reliance was placed upon the principle that plain meaning or literal companystruction may number be relied upon if it results in absurdity, injustice and unconstitutionality. In such a situation Court should companystrue the real meaning having regard to the object and purpose behind enacting the provision as well as the companytext of the setting in which it occurs and with a view to suppress the mischief sought to be remedied by the Legislature. In reply Mr. Jayant Bhushan, learned senior advocate submitted that in the case of B.S.E. Brokers Forum this Court upheld the validity of the registration fees levied by the SEBI but there was numberoccasion in that case to interpret the term turnover as defined through the Explanation. He also referred to an Explanation to clause 2 of Schedule IV of the Regulations only for companyparing the two Explanations and pointing out that while laying down the Schedule of Fees to be paid by the Trading or Clearing Member or Self Clearing Member the expression annual turnover has been defined differently so as to take into account the aggregate value of all trades executed by the trading member By placing reliance upon pleadings of the SEBI, the view taken by the SAT in the impugned judgment was sought to be supported further on the ground that in respect of wholesale debt market SEBI merely monitors and does number regulate and therefore there can be numberjustification to include the entire value of stocks in the turnover for calculating the registration fee. It was companyceded however that the wholesale debt market was companysiderably widened in 2003 and SEBI may claim that it is required to regulate the wholesale debt market from 2003 onwards but that should number affect the present case which is related to an earlier period, only upto December 2002. Mr. Bhushan took us through the documents and pleadings to companynter the allegation that respondent did number disclose the details and particulars of its business deals accounts. According to him, it is admitted in the inspection report that the respondent dealt only in the wholesale debt market segment. On behalf of respondent reliance was placed upon case of Income-tax Officer, Alleppey v. I.M.C. Ponnoose AIR 1970 SC 385 and case of Government of Andhra Pradesh v. P. Laxmi Devi 2008 4 SCC 720 in support of a well established proposition of law that unless the Statute empowers the companycerned authority to make a rule or regulation with retrospective effect, such authority cannot make a rule, regulation or bye-law with retrospective effect. Lastly it was pointed out from the materials on record that respondent had raised several other grounds for objecting to the impugned action of the SEBI but the SAT allowed respondents appeal on the basis of interpretation of the term annual turnover and did number deal with other grounds. We do number find any merit in the companytention advanced on behalf of the respondent that the Explanation under clause 2 of Schedule IV can be used in companytradistinction of differently worded Explanation under paragraph 3 of Schedule III to support the interpretation of the term annual turnover given by the SAT. While Schedule III relates to Regulation 10 which governs fees to be paid by the stock broker or sub-broker, Schedule IV relates to Regulation 16G 1 which governs fees to be paid by the Trading or Clearing Member or Self Clearing Member of Derivatives Exchange/ Derivatives Segment Clearing Corporation Clearing House. In such a situation, in our view, the term annual turnover has to be understood only in the light of Schedule III and its companytents including the relevant Explanation. On a careful analysis of the Explanation occurring after paragraph 3 of Schedule III and the definition of annual turnover companytained therein as also the reasonings in the impugned order we are companystrained to hold that the SAT has erred in limiting the annual turnover of the respondent only to the amount of brokerage earned by it. The earning by way of brokerage represents only the part of price of securities received by the stock broker on his own account. The other and more significant part of the annual turnover as per the Explanation is the aggregate of the sale and purchase prices of securities, received or receivable by the stock broker on account of his clients in respect of sale and purchase or dealing in securities during the financial year. The view taken by the SAT that since in the wholesale debt market segment the broker has a limited role as per the RBI circular and since the broker does number receive the sale or purchase price because the payment is directly made to the seller, the broker will be saved from inclusion of the sale and purchase prices in his annual turnover, suffers from an apparent error. The error lies in number appreciating that the companyponent of aggregate of sale and purchase prices which is receivable by the stock broker even on account of his clients is included in the annual turnover. Such sale and purchase price receivable by the stock broker on account of his clients, under the directions of the RBI through the circular dated June 20, 1992 presently goes directly to the seller but it is of numbersignificance. Even if such sale and purchase price had actually been received by the stock broker number on his own account but on account of his clients, it companyld number belong to the broker and had to be passed on to the seller because such amount was receivable clearly on account of his clients in companytradistinction to any part of sale and purchase price received or receivable by the stock broker on his own account. Thus viewed, the annual turnover of the stock broker as per the Explanation must include the value of entire transaction for the purpose of companyputing the registration fee as per Schedule III of the Regulations. In numbercase the term annual turnover can be so interpreted as to mean only the amount earned by the stock broker by way of brokerage. The same companyclusion will emerge on companysidering the legislative history leading to insertion of clause 1 bb in Schedule III whereby transactions in Government securities, bonds issued by any public sector undertaking and the units, traded in a similar manner were placed in a separate category for which the fee is kept at a much lower rate of 1000th of 1 of the turnover. The SAT erred in number companysidering the obvious purpose of such a provision brought through an amendment in the light of recommendations of the Bhatt Committee which had received number only approval of the SEBI but also of this Court as per judgment in the case of B.S.E. Brokers Forum.

J U D G M E N T Shah, J. The respondent companypany having a D-2 licence for manufacture of Indian Made Foreign Liquor from rectified spirit by blending, reducing and companypounding Indian Made Foreign Liquor companycentrate, challenged the levy of full companyts of supervision and establishments of excise staff posted at its factory premises by filing P. No.1456 of 1993 in the High Court of Madhya Pradesh at Jabalpur. By judgment and order dated 4.5.1993, the High Court quashed the levy of expenses incurred on supervision and establishment companyt on the ground that Rule 22 of M.P. Breweries Rules, 1970 was struck down as ultra vires by this Court in case of M s Lilasons Breweries Pvt. Ltd. v. State of Madhya Pradesh 1992 3 SCC 293. In M s Lilasons Breweries Pvt. Ltd.s case, this Court arrived at the companyclusion that Rule 22 to the extent it permits raising a demand, which in sum and substance is additional excise duty, without its being actually due, is ultra vires the Act and beyond the rule making power of the State. Impugned judgment and order passed by the High Court is challenged by filing this appeal. It has been pointed out that the High Court proceeded on a misconception that D-2 licences were issued under Rule 22 of the P. Breweries Rules, 1970. As a matter of fact, licences were issued under Rules IV and V of the Distillery Warehouse Rules. It is pointed out that Brewery Rules are number applicable to the unit of the respondent as it is number a brewery. In support of the aforesaid companytention, learned companynsel for the appellants has drawn our attention to the Rules applicable to all distilleries and warehouse in Madhya Pradesh. Relevant Rules IV V for the grant of licence are as under IV. The Collector may issue, on payment of a fee of Rs.1000/- a licence in Form D-2 for the companystruction and working of a distillery to any person to whom a wholesale supply licence has been issued. Subject to sanction of the State Government the Excise Commissioner may issue a licence in Form D-2 for the companystruction and working of a distillery on payment of a fee of Rs.1000/-. These Rules are framed by the State Government in exercise of powers companyferred under Section 18 read with Section 62 2 e g h of the M.P. Excise Act, 1915. Section 62 2 h empowers the State Government to make Rules prescribing the scale of fees or the manner of fixing the fees payable in respect of any licence, permit or pass. Section 18 empowers the State Government to lease to any person the right of manufacturing or of supplying or of selling liquor or intoxicating drug within any specified area, which is under Power to grant lease of right to manufacture, etc.The State Government may lease to any person, on such companyditions and for such period as it may think fit, the right a of manufacturing, or of supplying by wholesale, or of both, or b of selling by wholesale or by retail, or c of manufacturing or of supplying by wholesale, or of both, and selling by retail, any liquor or intoxicating drug within any specified area. The licensing authority may grant to a lessee under sub-section 1 a licence in the terms of his lease and when there is numbercondition in the lease which prohibits sub-letting, may, on the application of the lessee, grant a licence to any sub-lessee approved by such authority. Section 27 also empowers the State Government to accept the payment of a sum in companysideration of grant of any lease under Section 18, which is as under Payment for grant of leases. 1 Instead of or in addition to any duty leviable under this Chapter, the State Government may accept payment of a sum in companysideration of the grant of any lease under Section 18. Nothing companytained in sub-section 1 shall be companystrued to preclude the State Government from enhancing or reducing the sum received in companysideration of a grant of any lease under Section 18 during the companyrse of a financial year or during the currency of a licence and the power to enhance or reduce the sum shall include power to give retrospective effect to such enhancement or reduction from a date number earlier that the companymencement of the financial year. In view of Sections 18 and 27, the State Government is entitled to accept payment of a sum in companysideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and companyditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full companyt of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, Distt. Raisen. Similar provisions were companysidered by this Court and their validity is upheld in Government of Andhra Pradesh v. M s Anabeshahi Wine and Distilleries Pvt. Ltd. 1988 2 SCC 25 wherein this Court observed thus The perusal of the aforesaid provisions of the Act and the Rules leaves numbermanner of doubt that it was open to the appellant to grant the exclusive privilege of manufacturing and selling wine etc. to the respondent only provided it was, apart from making any other payment, also willing to pay the salaries and allowances referred to in the aforesaid provisions which for the sake of companyvenience have been described as establishment charges, and which were sought to be recovered as such under the impugned numberice of demand. The respondent- Company was number under any obligation to take the licence. It was open to it to have refrained from taking any licence under the Act and the Rules if it was number willing to pay the price as required by the government for the grant of privilege to manufacture and sell intoxicants. The nature of the payment which a licensee such as the respondent is required to make to the State by reason of the State parting with the privilege in regard to manufacture sale etc. of intoxicants came up for companysideration before a Constitution Bench of this Court in Har Shankar v. Deputy Excise and Taxation Commissioner 1975 3 SCR 254. It was held that the amounts charged to the licensees are neither in the nature of tax number excise duty, but companystituted the price or companysideration which the government charges to the licensees for parting with its privileges and granting them to the licensees The principles laid down in the aforementioned cases will, in our opinion, apply to the instant case also. The fact of the demand being with regard to establishment charges will make numberdifference. A predetermined amount equivalent to or even higher than the amount which is sought to be recovered by the appellant from the respondent calculated for the entire period of the licence companyld have been demanded in a lump sum as price for parting with the privilege and it companyld number have been challenged by the respondent in view of the principle enunciated by this Court in the aforesaid cases. Simply because the demand was spread over with a view to making it just and reasonable so as to represent the actual expenditure incurred by the government to maintain the requisite excise staff at the factory premises of the respondent as companytemplated by the relevant provisions of the Act and the Rules, it would number become illegal and vulnerable. In Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. v. State of Gujarat Anr. 1992 2 SCC 42 validity of demand under Section 58A of the Bombay Prohibition Act, 1949 for maintenance of excise staff for supervision of manufacture of industrial alcohol was assailed on the ground of lack of legislative companypetence of the State. In that case, the Court observed thus According to learned companynsel since the entire judgment of the High Court proceeded on privilege theory it cannot withstand the principle laid down in Synthetics and Chemicals Ltd. v. State of U.P. 1990 1 SCC 109. Levy as a fee under Entry 8 of List II of Seventh Schedule or excise duty under Entry 51 are different than companyt of supervision charged under Section 58-A. The former has to stand the test of a levy being in accordance with law on power derived from one of the companystitutional entries. Since Synthetics and Chemicals Case finally brought down the curtain in respect of industrial alcohol by taking it out of the purview of either Entry 8 or 51 of List II of Seventh Schedule the companypetency of the State to frame any legislation to levy any tax or duty is excluded. But by that a provision enacted by the State for supervision which is squarely companyered under Entry 33 of the Concurrent List which deals with production, supply and distribution which includes regulation cannot be assailed. The bench in Synthetics and Chemicals case made it clear that even though the power to levy tax or duty on industrial alcohol vested in the Central Government the State was still left with power to lay down regulations to ensure that numberpotable alcohol, that is, industrial alcohol, was number diverted and misused as substitute for potable alcohol. This is enough to justify a provision like Section 58-A. In paragraph 88 of the decision it was observed that in respect of industrial alcohol the States were number authorised to impose the impost as they have purported to do in that case but that did number effect any imposition of fee where there were circumstances to establish that there was quid pro quo for the fee number it will affect any regulatory measure. This companypletely demolishes the argument on behalf of the appellant. The aforesaid decision was referred to and relied upon in M s Gujchem Distillers India Ltd. v. State of Gujarat 1992 2 SCC 399.

Petitioner is the widow of one Shrikrishna Gopilal Solanki who died on May 1, 1976 while in detention. The petitioner is seeking to question the validity of a detention order passed against her husband under Section 3 read with Section 12-A of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, COFEPOSA , 1974, for the reason that on the basis of such detention order, proceedings have been initiated against her properties under the Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act, SAFEMA , 1976. An order dated September 25, 1974 was passed against Solanki under Section 3 of Maintenance of Internal Security Act, MISA , 1971 and he was detained. Solanki questioned the same by way of a writ petition in the Bombay High Court. While that writ petition was pending, parliament enacted COFEPOSA and it was brought into force on December 19, 1974. On the same day, the order of detention under MISA was revoked and an order of detention was passed under COFEPOSA against Solanki. The writ petition filed by Solanki against the detention order under MISA was withdrawn and dismissed as infructuous. On June 25, 1975 the President of India proclaimed emergency under Article 359 of the Constitution and on June 27, 1975, the president made an order under and in terms of Article 359 of the Constitution suspending certain fundamental rights. By its order dated September 22, 1975 the High companyrt of Bombay quashed the order of detention dated December 19, 1974. On the same day, however, a fresh order of detention made under Section 3 read with Section 12-A of COFEPOSA was served on solanki He companytinued under detention. On November 5, 1975, SAFEMA Ordinance was Promulgated by the president of India which was later made into an Act with effect from the date of Ordinance. On January 19,1976, Solanki filed a writ petition Criminal M.P. No. 134 of 1976 in the Bombay High Court challenging the validity of the order of detention dated September 22, 1975. The writ petition was admitted and numberice was issued to the State. On 11th March, 1976, numberices were issued under Section 6 of SAFEMA to the petitioner proposing forfeiture of the properties standing in her name. On May 1, 1976, as stated above, Solanki died while under detention. Another numberice under Section 6 of SAFEMA was issued to the petitioner on October 19, 1976. The petitioner sent her reply thereto. On April 12, 1977, the writ petition filed by solanki criminal M.P. 134 of 1976 was dismissed as infructuous on a representation made by the Public Prosecutor appearing for the State that the detente has been released. Admittedly it was an incorrect representation. the detente had expired while in detention, as stated above, on May 1, 1976 itself. Pursuant to the numberice issued under Section 6, the Authority under SAFEMA passed orders forfeiting the petitioners properties under the said Act. An appeal preferred by the petitioner was dismissed by the Tribunal on June 7, 1979. Thereupon the petitioner approached the Delhi High Court by way of a writ petition challenging the said orders under SAFEMA writ petition No. 1487 of 1979 . The High Court dismissed the writ petition on 12.10.79 against which the present SLP was filed in June 1980. On 18.4.1983 this Court granted special leave to appeal and on 12.11.92, the companyrt permitted the petitioner to amend her S.L.P. so as to challenge the detention order dated 22 September, 1975 made against her deceased husband. The petitioner did so. Thereafter by an order dated September 8, 1994, this Court treated the said Civil Appeal as a writ petition under Article 32 of the Constitution. It has been numbered as writ petition 574 of 1994. Under Section 2 2 b iv of SAFEMA, proceedings under the said Act can be taken in case of a person his relatives and associates against whom an order of detention has been made under COFEPOSA and such order of detention has number been set aside by a companyrt of companypetent jurisdiction. The respondents say that inasmuch as an order of detention dated September 22, 1975 was made against Solanki under COFEPOSA and because it has number been set aside by a companyrt of companypetent jurisdiction, the proceedings taken against the petitioner who is a relative of Solanki as defined in the said Act are perfectly valid and companypetent. As against this, the companytention of the petitioner is solanki had filed a writ petition challenging the validity of the aforesaid order of detention in the Bombay High Court. While it was pending, he died. The order made by the High Court on April 12, 1977 dismissing the writ petition as infructuous, acting upon and incorrect representation made on behalf of the State that the detente has already been released, is a nullity in law. Not only the detente was dead long prior to the said order but also because the said order was induced by and based upon a totally incorrect representation of fact viz., that the detente has already been released. there has been numberpronouncement by any companyrt upon the validity of the detention order dated 22.9.1975. The petitioner is entitled to challenge the validity of the aforesaid detention order because it is number being made a foundation for forfeiting her properties under SAFEMA. The validity of the said detention order was indeed questioned by Solanki himself and unless the challenge is repelled, it cannot be made a basis for initiating proceedings under SAFEMA against the petitioner his wife . It may well be that the Court will set it aside, in which case the entire proceedings taken under SAFEMA against the petitioner will fall to ground, says the petitioner. This aspect has been dealt with by a special Bench of nine Judges of this Court in Attorney General for India and Others v. Amratlal Prajivandas and Others 1994 5 S.C.C. The decision deals with several aspects arising under the aforesaid enactments. What is however, relevant herein is the discussion in paragraphs 35 to 42 pages 83 to 87 . In particular, the following holding in para 41 is relevant to the present companytroversy even if such an order is allowed to be challenged when action under SAFEMA is taken, the challenge must be companyfined to grounds which were open or available during the period of emergency otherwise there would be numbermeaning behind the companycluding words in Article 358 1 and Article 359 1-AP. Hence, we say that a person who did number choose to challenge such an order of detention during the emergency when he was detained, or challenged it unsuccessfully, cannot be allowed to challenge it when it is sought to be made the basis for applying SAFEMA to him. In either of the two situations mentioned above, i.e., whether the challenge is made during the period of detention or later when proceedings under SAFEMA are taken against him, the grounds of challenge and scope of judicial scrutiny would be the same. Failure to challenge the detention directly when he was detained, precludes him from challenging it after the cessation of detention, where it is made the basis for initiating action under SAFEMA. Now, the writ petition filed by Solanki was number decided on merits. It was dismissed on the basis of an incorrect representation made by the state. It was an order against a dead person. It is a nullity. Since the said order of detention is being made a basis for initiating action under Section 6 of SAFEMA, the petitioner is entitled to challenge it. It cannot be gainsaid that but for the said order of detention against Solanki, numberproceedings companyld have been taken against the petitioner his wife . She cannot, therefore, be denied the right to challenge the said detention order. Of companyrse, it follows from the holding in Amrat Lal Prajivandas that challenge to the order of detention dated September 22, 1975 made against Solanki has to be examined with reference to the law obtaining as on the date the said order was made and number with reference to the law obtaining at any later point of time. Now the question is whether that should be allowed to be done in the writ petition filed by the petitioner in the Delhi High Court it is really directed against the orders made under SAFEMA against her or should it be allowed to be done in the writ petition Crl.M.P. 134 of 1976 on the file of the Bombay High Court which was disposed of on the basis of wrong representation and after the death of the detente writ petitioner therein . In our opinion the proper companyrse is to treat the order dated April 12,1977 dismissing the writ petition Crl.M.P. 134 of 1976 as still pending on the file of the Bombay High Court. The petitioner shall be allowed to companytinue the said writ petition which shall have to be disposed of number according to law in the light of the observations made hereinabove and in accordance with law laid down in Amratlal Prajivandas. We must mention by way of clarification that though in the ordinary companyrse, the death of a detente should bring the writ petition challenging the order of detention to an end, the position here is different because of the fact that the said order of detention is being made a foundation for initiating proceedings for forfeiting the petitioners properties on the ground that she is a relative of deceased-detenue. It is in these peculiar circumstances that we are obliged to adopt the unusual companyrse indicated above. Accordingly the writ petition is disposed of with the following directions The order dated April 12, 1977 made by the Bombay High Court dismissing the writ petition Crl.M.P. 134 of 1976 filed by Shrikrishna Gopilal Solanki challenging the order of detention dated September 22, 1975 made under Section 3 read with section 12-A of COFEPOSA is treated as a nullity. The said writ petition shall be deemed to be companytinuing on the file of the Bombay High Court. It is open to the petitioner to companytinue the said writ petition provided she applies to the Bombay High Court for permission to companye on record in the said writ petition and to companytinue it, within two month from today. If such an application is made, t shall be entertained by the High Court and she shall be allowed to companytinue the writ petition. The writ petition shall be disposed of in accordance with law as indicated hereinabove. If the petitioner makes an application for companytinuing the writ petition as mentioned in direction 1 above, the orders made against her in SAFEMA shall remain stayed pending disposal of the said writ petition. In case the writ petition is allowed, it is obvious, the proceedings taken against the petitioner under SAFEMA shall stand set aside.

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 1485 OF 1974 Appeal by special leave from the judgment and decree dated 29-1-73 of the Kerala High Court in A.S. No. 357 of 1972. V. Gupte, C. J. Balakrishnan and A. S. Nambiar, for the appellant. S. Krishnamurthy Iyer anti K. R. Nambiar, for the respondents. The Judgment of the Court was delivered by GOSWAMI, J.--This is an appeal by special leave against the judgment of the Kerala High Court setting aside the judgment of the Subordinate Judge, Ernakulam and restoring the award of the Arbitrator who had earlier refused the claim of the appellant. The appellant briefly the companytractor was a successful tenderer for companystruction of three zonal R.C.C. Overhead Reservoirs, two in Matencherry and one in Cochin, in companynection with the Ernakulam Mattencherry Water Supply Scheme. In the schedule annexed to the numberification inviting tenders under the heading Site, it was stated that the soil at the site for Reservoir No. 1 and Reservoir No. 2 is loose clay and for Reservoir No. 3, sandy. The tenderer was to execute an agreement on a stamped paper before companymencing work. It appears later on the Kerala Engineering Research Institute, Poochi. Soil Mechanics and Foundation Division briefly the Research Institute submitted a report Ext. P. 10 dated September 14, 1965 that the sub-soil at the three places chosen as sites for the reservoirs upto 16 in showed that the top soil was sand, the middle layer clay, and the bottom layer, silty sand or sand. It was stated that the clay found at the three places was of a highly companypressible nature and hence pile foundation was preferable and that as the top strata was sandy, jetting had to be resorted to for driving the piles through this strata. After receipt of the opinion of the Research Institute, respondent No. 2 hereinafter to be described as the Department gave instructions to the companytractor to adopt the process of jetting for driving piles for the tank at Thoppumpady which is alone in dispute in this case. On October 7, 1965, the Chief Engineer after scrutinising the pile design of the companytractor wrote to him, inter alia, as follows The piles as per design submitted with raft like cap may be adapoted for tank at Thoppumpady where the length of pile suggested by the research division is in the region of 30 ft Jetting has to be resorted to in the top strata where sandy layer is met with Your statement that piles of more than 30 ft. length is very difficult to be driven in Ernakulam is number quite companyvincing to the Department. Any how a decision will be taken on this only after ascertaining the details regarding the practical difficulties if any from agencies actually engaged in such type of works in the locality. Meanwhile you may please execute the agreement and start the work on the Reservoir at Thoppumpady receiving further instructions from Executive Engineer, Public Health, Alwaye Ext. P. 1 . On February 21, 1966, the companytractor wrote to the Executive Engineer informing him that as per instructions of the Research Institute and 10 SC/75-15. site companyditions he provided jetting arrangements for driving the piles although the process of jetting was number included in his tender. He enclosed the details of expenditure on that account and mentioned that for the pile casting he used extra reinforcement for additionally strengthening the head of piles due to the site, companydition. He pointed out that this was number included in his original design. The sum and substance of the companytractors grievance was that he assumed the site companydition to be as represented in the schedule to the numberification inviting tenders and submitted his original design on that basis and since, however, the site companydition was found to be different and on the advice of the Research Institute jetting had to be resorted to involving extra expenditure he was entitled to claim additional amount for the work of jetting. The Department, however, refused the claim which led to the arbitration under clause 34 of the tender numberification. The Arbitrator was the Chief Engineer. It appears the award was based on examination of documents and after hearing arguments of the parties. The award with which we are companycerned is a speaking one and gives the reasons for the decision against the companytractor. Mr. Gupte, the learned companynsel for the appellant submits that the Arbitrator was guilty of legal misconduct in companyducting the proceedings. He submitted that two very material documents, Exts., P. 11 and P. 16, were absolutely ignored by the Arbitrator resulting in miscarriage of justice. On the other hand Mr. Krishnamurthy Iyer submitted that these documents were number even marked before the Arbitrator they were marked only before the Subordinate Judge. According to him, therefore, there is numberfoundation for the grievance. We have been taken through all the relevant documents by the learned companynsel for both sides and we are satisfied that Ext. P. 11 and Ext. P. 16 are material documents to arrive at a just and fair decision to resolve the companytroversy between the Department and the companytractor. In the background of the companytroversy in this case even if the Department did number produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P. 1 1 dated September 8, 1966, is a companymunication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by Audit in companynection with the companystruction of the reservoirs. The following extract will explain the position then taken by the Department- The companytention of the Accountant General that jetting was resorted to by the companytractor to facilitate the driving of the piles is number companyrect. Had it number been for jetting, it would number have been possible for the piles to reach the required depth of 30, passing through sandy strata and we would have been companystrained to stop with a smaller depth viz., upto the point of refusal for penetration of the pile by hammering. It was, therefore, in the interest of the work that jetting was insisted upon by the Department for pile driving. The companytractor had to resort to jetting under instructions from the Department. The Accountant General has stated that the department is number bound to pay extra for adopting the method of jetting for pile driving. This does number appear companyrect since the method of jetting was adopted in the interest of the department in view of the sandy stratum obtaining at the site as against the indication given by the department that the soil is clayey upto a depth of nearly 200 ft. No doubt, the companytractor was asked to ascertain the nature of the soil but this does number imply that he was to companyduct exploratory borings to companyfirm the classification given by the department in the tender within the short span of time available for submitting tenders. Earlier also on July 25, 1966, as per Ext. P. 16 the Executive Engineer had written to the Chief Engineer wherefrom paragraph 4 is revealing Even though while inviting tenders for the work there was a companydition that the tenderer should examine the soil companydition it was number expected, of them to do soil testing in detail within the period available to them to tender for the work. A clear indication regarding the nature of the strata that is likely to be met with was also furnished at the time of inviting tenders. After companyplete ,oil investigation the strata was found to be different from that furnished by the department and so in my opinion technical specification has changed. In the circumstances jetting clone by the companytractor can be companysidered as an extra item. We number companye to the Award. Although the Arbitrator has held that jetting, however, is number an authorised extra companyered by the agreement, he has made the following significant observation which is inconsistent with his companyclusion that the companytractor has numberright for extra payment for the jetting The Chief Engineer has rejected the claims of the companytractor on grounds of number-inclusion of this jetting in the agreement which was executed subsequent to the direction issued by the department to adopt jetting. The Chief Engineers decision totally ignores the next sentence in that letter Meanwhile you may execute the agreement. By this sentence the issue of extra payment for jetting is left open even after the execution of the agreement. If the above is the companyclusion of the Arbitrator, rejection of the claim on the ground that jetting, however, is number an authorised extra companyered by the agreement cannot be anything but rationally inconsistent. The award, therefore, suffers from a manifest error apparent ex facie. Under section 30 a of the Arbitration Act an award can be set aside when an Arbitrator has misconducted himself or the proceedings. Misconduct under section 30 a has number a companynotation of moral lapse. It companyprises legal misconduct which is companyplete if the Arbitrator on the face of the award arrives at an inconsistent companyclusion even on. his own finding or arrives at a decision by ignoring very material documents which throw abundant light on the companytroversy to help a just and fair decision. It is in this sense that the Arbitrator has misconducted the proceedings in this case. We have, therefore, numberhesitation in setting aside such an award. In the result the judgment of the High Court is set aside and that of the Subordinate Judge is restored. The award of the Arbitrator thus stands quashed. The Arbitrator will companyplete the proceedings after companysidering all the relevant documents including Ext. P. 11 and Ext. P. 16 after giving opportunity to the parties. The appeal is allowed with companyts.

Dr Dhananjaya Y Chandrachud, J 1 The Division Bench of the High Court for the State of Telangana by its judgment dated 13 June 2019, dismissed a challenge to an order of detention dated 25 October 2018. 2 The appellant was detained under the provisions of sub-section 2 of Section 3 of the Telangana Prevention of Dangerous Activities of Boot-Leggers, Signature Not Verified Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Digitally signed by SANJAY KUMAR Date 2019.12.19 102216 IST Reason Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 19861. The order of detention was issued on 2 November 2018 by the Commissioner of Police, Rachakonda, Commissionerate and companytained the following recitals WHEREAS, information has been placed before me that the offender Khaja Bilal Ahmed, S o Khaja Hassan, age 41 yrs. Occ Business, Charminar, Hyderabad is a Goonda and has been habitually and companytinuously engaging himself in unlawful acts and indulging in the acts of goondaism by acting as a leader member of criminal gang and companymitted gruesome and heinous offences like Murder Attempt to Murder Rioting Criminal trespass and Assault on Public Servants in the Police Station limits of Hyderabad City and Rachakonda Commissionerate and thereby caused harm, panic and terror among the innocent general public of the area and on account of his criminal activities, his presence in the locality is adversely affecting the public order and thus he has acting in a manner prejudicial to maintenance of public order apart from disturbing the peace, tranquility, social harmony in the society. The order then sets out a reference to fourteen cases which were registered against the appellant under various heads of crime within the limits of Hyderabad City. These cases were registered between 2007 and 2016. One of the cases against the appellant under Sections 323 and 341 of the Indian Penal Code 18602 is stated to have been companypromised in a Lok Adalat in four cases, the appellant is stated to have been acquitted five cases are stated to have been Telangana Offenders Act 1986 IPC transferred to the Special Investigation Team3, Hyderabad City for further investigation and four cases are pending trial. The order of detention states that The above cases are referred as his antecedent, criminal history and companyduct. Though, cases were registered, arrested by Police and a Rowdy sheet is being maintained at PS Rain Bazar of Hyderabad City, he companyld number mend his criminal way of life and companytinued to indulge in similar offences soon after companying out on bail. The order of detention thereafter proceeds to state that in 2018, the appellant was implicated in Crime number178 of 2018 under Sections 364, 302, 120B and 506 read with Section 34 of the IPC at PS Abdullapurmet of Rachakonda Commissionerate which is under investigation. The dangerous activities of the offender and his associates are stated to have caused panic and a feeling of insecurity in the minds of the general public living within the limits of Hyderabad City and Rachakonda Police Commissionerate, thereby disturbing the peace and tranquillity of the area in a manner prejudicial to the maintenance of public order. The order of detention was passed by the Commissioner of Police on the basis of the following satisfaction WHEREAS. I, Mahesh M. Bhagwat, IPS, Commissioner of Police, Rachakonda, am satisfied on examination of the material placed before me that the offender Khaja Bilal Ahmed has been repeatedly indulging himself in the manner of goondaism by acting a leader member of criminal gang and companymitted gruesome offences such as Murder Attempt Murders Rioting in an organized fashion, creating a feeling of insecurity to their life in the minds of General Public and thus disturbing peace and tranquility in society and acting in a manner prejudicial to maintenance of Public Order. He is a habitual offender and a Goonda as defined in clause g of Section 2 of the Telengana Offenders Act 1986 Act number 13 of 2018 SIT 3 On 26 October 2018, the appellant filed an application for bail 4 in Crime number178 of 2018. The application for bail was allowed by the 14th Additional Metropolitan Magistrate on 26 October 2018 on the ground that the investigating agency had failed to companyplete the investigation within the period allowed by the proviso to Section 167 2 of the Code of Criminal Procedure 19735. On 26 October 2018, when bail was granted by the 14th Additional Metropolitan Magistrate in Crime number178 of 2018, an order of detention dated 25 October 2018 is stated to have been served on the appellant at 745 pm while he was still in jail custody. 4 On 2 November 2018, the brother of the appellant filed a Writ Petition 6 challenging the order of detention on the ground that it had number been companyfirmed within twelve days as companytemplated under Section 3 3 of the Telangana Offenders Act 1986. On 2 November 2018, a companyy of the order of the State government companyfirming the order of detention was served on the appellant. On 30 November 2018, a petition7 seeking a writ of habeas companypus was instituted by the brother of the appellant before the High Court challenging the order of detention dated 25 October 2018 and the order of the State government dated 2 November 2018 companyfirming the detention. 5 On an interlocutory application8 filed in the Writ Petition, the High Court by an order dated 27 February 2019 issued a direction for the release of the Cr.M.P. 1645 of 2018 CrPC Writ petition number41187 of 2018 Writ petition number43814 of 2018 IA 1 of 2019 appellant from preventive detention on the companydition that he would companytinue to abide by the terms imposed by the 14th Additional Metropolitan Magistrate for the grant of bail on 26 October 2018 in Crime number178 of 2018. By a judgment dated 13 June 2019, the High Court dismissed the Writ Petition challenging the order of detention, which gave rise to the proceedings before this Court under Article 136 of the Constitution. 6 Before dealing with the rival submissions, it is necessary to set out the position of the fourteen criminal cases against the appellant which have been adverted to in the order of detention. This has been summarised in a tabular chart which was submitted to this Court by Ms Bina Madhavan, learned Counsel appearing on behalf of the State of Telangana. The chart is extracted below S CASE NO UNDER SECTION CURRENT NO STATUS 1 305/2012 147,148,188,153 r w Section 149 of IPC Transferred to SIT. Section 7 of Criminal Law Amendment Act, Still under 1932 investigation 2 306/2012 147,148,332,188,153 A R W 149 of IPC Transferred to SIT. Still under investigation 3 307/2012 147,148,332,307,188,153 A r w 149 of IPC Transferred to SIT. Section 7 of Criminal Law Amendment Still under Act, 1932 investigation 4 308/2012 147,148,382 r w 149 of IPC Transferred to SIT. Still under investigation 5 309/2012 147, 148, 427 r w 149 of IPC Transferred to SIT. Still under investigation 6 41/2007 147,148,324,506,153 A ,159 of IPC Pending trial 7 42/2007 147,148,506,427,153 A ,159 of IPC Pending trial 8 44/2007 147,148,324,506,153 A r w 149 of IPC Pending trial 9 43/2007 147,148,448,427,506,153 A r w 149 of IPC Pending trial CASES IN WHICH ACQUITTED S NO CASE NO UNDER SECTION CURRENT STATUS 10 283/2012 149 , 353, 427 r w 34 of IPC Acquitted 11 257/2009 147, 353, 427, 332 r w 149 of IPC Acquitted Section 7 of Criminal Law Amendment Act, 1932 Section 4 of PDPP Act of Reinbazar PS. Hyderabad city 12 47/2011 447,353,427 and 506 of IPC Acquitted 13 14/2009 147,148,324,307,427, 506 r w 149 of IPC Acquitted Section 27 of Indian Arms Act CASE WHICH IS COMPROMISED S NO CASE NO UNDER SECTION CURRENT STATUS 14 272/2016 341 and 323 of IPC Compromised in Lok Adalat vide order dated 08.09.2017 7 During the companyrse of the proceedings before the High Court, a companynter affidavit was filed by the Commissioner of Police stating that 4. the records revealed that the since 2009 to 2016 as many as 15 cases were registered against the detenu, for engaging himself in unlawful and dangerous activities. Among them 4 cases were in acquittal. The said cases are referred by way of his criminal background that the same are number relied upon. In the recent past during the year 2018 the detenu was involved in Cr.No 178/2018, u s Sections 374, 302, 120-B, 506 r w 34 IPC, Abdullapurmet P.S. of Rachakonda Police Commissionerate., wherein the detenu and his associates kidnapped the deceased to an isolated area of Majeedpur village in the limits of Abdullapumet P.S., and stabbed him to death brutally, thereby created terror and a feeling of insecurity in the minds of general public, apart from disturbing peace and tranquility in the area. Thus the activities of the detenu are prejudicial to maintenance of public order, affecting the public order adversely. The said case has been companysidered as ground for his detention. Emphasis supplied The above statement was reiterated in another part of the same companynter affidavit in the following terms However, the cases registered against him during the period 2009 to 2016 are number at all companysidered for passing the detention order. The same are referred by way of his criminal back ground only. Emphasis supplied In other words, the order of detention was sought to be justified solely on the basis of Crime number178 of 2018 registered against the appellant under Sections 364, 302, 120B and 506 read with Section 34 of the IPC. The genesis of the criminal case was spelt out in the companynter affidavit filed before the High Court thus A-1 Khaja Bilal Ahmed was active member in AIMIM Party and elected as Corporator for GHMC Ward No 29 in 2009 Elections and later joined in TPCC and number working as Telangana State Minority Vice President. The marriage of A-1 was solemnized in 2006 with Smt Rafath Sultana and due to some disputes, they got separated in March, 2018 in the presence of their companymunity elders. The deceased Syed Aqeel, who was working with the detenu and residing nearby his house. Later, the deceased Aqeel got married to A-1s divorced wife Smt Rafath Sultana. As such, the A-1 felt shame in his companymunity and bore grudge on deceased. The Detenu developed grudge against the deceased that the deceased defamed him after marrying his divorced wife. Up on which, the detenu along with his associates A2 to A8 hatched a plan to eliminate the deceased and in execution of his plan, the detenu and his associates kidnapped the deceased in the early hours on 03-06-208, took him to an isolated area of Majeedpur village of Abdullapurmet Police station limits, where the detenu and his associates stabbed him to death brutally. The case is under investigation for apprehension of absconding accused and companylection of further evidence. 8 It was in the above case that the appellant was released on bail on 26 October 2018 on the failure to file a charge-sheet within a period of ninety days. No charge-sheet has been filed till date. 9 In this backdrop, the following submissions have been urged on behalf of the appellant by Mr Sidharth Luthra, learned Senior Counsel I The grounds relied upon by the Commissioner of the Police, Rachakonda Commissionerate in the detention order dated 25 October 2018 are stale and have numberproximate or live link between the antecedent activities and the detention order as they are of the years 2007 and 2012 except for Crime number178 of 2018 The order of detention mentioned fifteen cases, but reliance is placed only on a single case bearing Crime number178 of 2018 for crimes under Sections 302 and 364 Out of the fifteen cases, the detenu has been acquitted in six cases eight cases are pending trial out of which four cases date back to 2007, and four to 2012 and only Crime number178 of 2018 under Sections 302 and 364 is pending investigation Until date numbercharge-sheet has been filed in Crime number178 of 2018 dated 3 June 2018 By the admission of the respondents, the order of detention has been passed on one solitary case and In support of the submission that the order of detention was invalid, reliance has been placed on the decisions of this Court in Sama Aruna v State of Telangana9, Lakshman Khatik v State of West Bengal10, Rameshwar Shaw v District Magistrate Burdwan11 and Yumman Ongbi Lembi Leima v State of Manipur12. II Non-confirmation of the detention order within three months would result in its automatic revocation. The appellant was in detention from 25 October 2018 until 27 February 2019, for a period of four months without companyfirmation by the government under Section 12 In response to a Right to Information13 query dated 2 July 2019 lodged by the appellants brother with the Superintendent, Central Prison, Cherlapalli, Medchal district, it was stated that the prison authorities had number received any companyfirmation or revocation of the detention order pertaining to the appellant The companyfirmation order dated 28 December 2018 was placed on the record for the first time during the companyrse of the present proceedings in the additional grounds filed in the Special Leave Petition The companyfirmation order dated 28 December 2018 found numbermention either in the High Court or in the first companynter affidavit which was filed before this Court on 18 July 2019 2018 12 SCC 150 1974 4 SCC 1 AIR 1964 SC 334 2012 2 SCC 176 RTI The companyfirmation order clearly stated that the Superintendent of Jails, Central Prison should serve the order on the detenu immediately and It is a sine qua number for the companytinuation of the detention order beyond the period of three months that the appropriate government must companyfirm it within three months. In support of the argument, reliance has been placed on the decisions of this Court in Nirmal Kumar Khandelwal v Union of India14 and Cherukuri Mani v Chief Secretary, Govt of AP15. III The detention order dated 25 October 2018 categorically states that the appellant will be granted mandatory bail under Section 167 of the CrPC and therefore, has been passed only on the apprehension of bail being granted The detention order has been passed apprehending the grant of bail without following the criteria laid down by this Court in Kamarunnissa v Union of India16, in which it was held In case of a person in custody a detention order can validly be passed 1 if the authority passing the order is aware of the fact that he is actually in custody 2 if he has reason believe on the basis of reliable material placed before him a that there is a real possibility of his being released on bail, and b that on being so released he would in all probability indulge in prejudicial activity and 3 if it is felt essential to detain him to prevent him from so doing. 1978 2 SCC 508 2015 13 SCC 722 1991 1 SCC 128 Also followed in Champion R Sangma v State of Meghalaya 2015 16 SCC 253. IV Adequate measures and remedies were available under ordinary law and hence there was numbernecessity to issue an order of preventive detention V The detention order dated 25 October 2018 was companyfirmed under Section 3 2 after a delay of eight days and VII The appellant was arrested in Crime number178 of 2018 and was granted statutory bail under Section 167 CrPC on 26 October 2018. The order of detention was served on the appellant while he was in custody. The appellant was in custody until 27 February 2019 when an interim order of release was passed, which companytinued to remain in force until the High Court dismissed the petition on 13 June 2019. Aggrieved by the order of the High Court, the appellant moved the Vacation Bench of this Court which adjourned the proceedings on 25 June 2019. The Special Leave Petition was listed on 1 July 2019 when a numberice was issued returnable in two weeks. The proceedings were listed on various dates and arguments were heard for final disposal. 10 On the other hand, Ms Bina Madhavan, learned Counsel appearing on behalf of the State of Telangana submitted thus In ordinary circumstances, the companyrts do number interfere with the subjective satisfaction of the detaining authority. Reliance has been placed upon the decision of this Court in Subramanian v State of T N17 2012 4 SCC 699 A single offence can legitimately form the subject matter of an order of detention The order of detention dated 25 October 2018 was approved on 2 November 2018 as stipulated under Section 3 3 of the Telangana Offenders Act 1986. Accordingly, there was numberdelay in companyfirming the order The order of the Advisory Board was duly passed on 12 December 2018, and the State Government companyfirmed the detention on 28 December 2018 The reference to the antecedent criminal cases in the order of detention was only to indicate the background of the appellant who had been implicated in the past in several cases involving rioting of a companymunal nature and The appellant was implicated in a case involving the brutal murder of a person who had married his former wife and, having regard to the nature of the offence, it was open to the detaining authority to arrive at the satisfaction that there was a real possibility of the appellant indulging in prejudicial activity if he were to be released on bail. 11 The rival submissions fall for companysideration. 12 The expression goonda is defined in the Telangana Offenders Act 1986 in the following terms g goonda means a person, who either by himself or as a member of or leader of a gang, habitually companymits, or attempts to companymit or abets the companymission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code Section 3 companytains the power to make orders of preventive detention 3. 1 The Government may, if satisfied with respect to any boot-legger, dacoit, drug-offender, goonda, immoral traffic offender Land-Grabber, Spurious Seed Offender, Insecticide Offender, Fertilizer Offender, Food Adulteration Offender, Fake Document Offender, Scheduled Commodities Offender, Forest Offender, Gaming Offender, Sexual Offender, Explosive Substances Offender, Arms Offender, Cyber Crime Offender and White Collar or Financial Offender that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section 1 , exercise the powers companyferred by the said sub-section Provided that the period specified in the order made by the Government under this sub-section shall number in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period number exceeding three months at any one time. When any order is made under this section by an officer mentioned in sub-section 2 , he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and numbersuch order shall remain in force for more than twelve days after the making thereof, unless, in the mean time, it has been approved by the Government. Section 11 deals with the procedure before the Advisory Board 11. 1 The Advisory Board shall, after companysidering the materials placed before it and, after calling for such further information as it may deem necessary from the Government or from any person called for the purpose through the Government or from the person companycerned, and if, in any particular case, the Advisory Board companysiders it essential so to do or if the person companycerned desires to be heard, after hearing him in person, submit its report to the Government within seven weeks from the date of detention of the person companycerned. The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or number there is sufficient cause for the detention of the person companycerned. When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. The proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be companyfidential. Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter companynected with the reference to the Advisory Board. Section 12 provides for the action to be taken on the receipt of the report of the Advisory Board 12. 1 In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may companyfirm the detention order and companytinue the detention of the person companycerned for such period, number exceeding the maximum period specified in section 13 as they think fit. In any case, where the Advisory Board has reported that there is, in its opinion, numbersufficient cause for the detention of the person companycerned, the Government shall revoke the detention order and cause the person to be released forthwith. Section 13 provides for the maximum period of detention The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been companyfirmed under section 12, shall be twelve months from the date of detention. 13 The order of detention in the present case companytains a reference to fourteen cases which were instituted against the appellant between 2007 and 2016. The chart provided on behalf of the State Government which has been extracted earlier indicates that out of the fourteen cases, five cases which pertain to 2012 were transferred to the SIT for investigation there being numberchange in that position. Four cases pertaining to 2007 are pending trial. The appellant has been acquitted in four cases of 2009, 2011, and 2012. The case of 2016 was companypromised in a Lok Adalat on 8 September 2017. 14 In Sama Aruna v State of Telangana18, this Court while companystruing the provisions of the Telangana Offenders Act 1986 held Obviously, therefore, the power to detain, under the 1986 Act can be exercised only for preventing a person from engaging in, or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order or for preventing him from making preparations for engaging in such activities. There is little doubt that the companyduct or activities of the detenu in the past must be taken into account for companying to the companyclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back? There is numberdoubt that only activities so far back can be companysidered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the companyclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. In Golam Hussain v. State of B. Golam Hussain v. State of W.B., 1974 4 SCC 530 1974 SCC Cri 566 this Court observed as follows SCC p. 535, para 5 No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory 2018 12 SCC 150 requirement. But numbermechanical test by companynting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and companyrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the companyrse of an investigation. We have to investigate whether the causal companynection has been broken in the circumstances of each case. Suffice it to say that in any case, incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied in the present that the detenu is going to engage in, or make preparation for engaging in such activities. Emphasis supplied In the facts of that case, the Court held that the order of detention was passed on stale grounds, which companyld number have been companysidered as relevant for arriving at the subjective satisfaction that the detenu must be detained. This Court held thus The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past companyduct in light of the surrounding circumstances. The live and proximate link that must exist between the past companyduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential companycept of preventive detention is that the detention of a person is number to punish him for something he has done but to prevent him from doing it. See G. Reddeiah v. State of P. G. Reddeiah v. State of A.P., 2012 2 SCC 389 2012 1 SCC Cri 881 and P.U. Iqbal v. Union of India P.U. Iqbal v. Union of India, 1992 1 SCC 434 1992 SCC Cri 184. Emphasis supplied 15 In the present case, the order of detention states that the fourteen cases were referred to demonstrate the antecedent criminal history and companyduct of the appellant. The order of detention records that a rowdy sheet is being maintained at PS Rain Bazar of Hyderabad City and the appellant companyld number mend his criminal way of life and companytinued to indulge in similar offences after being released on bail. In the companynter affidavit filed before the High Court, the detaining authority recorded that these cases were referred by way of his criminal background and are number relied upon. The detaining authority stated that the cases which were registered against the appellant between 2009 and 2016 are number at all companysidered for passing the detention order and were referred by way of his criminal background only. This averment is plainly companytradictory. The order of detention does, as a matter of fact, refer to the criminal cases which were instituted between 2007 and 2016. In order to overcome the objection that these cases are stale and do number provide a live link with the order of detention, it was companytended that they were number relied on but were referred to only to indicate the antecedent background of the detenu. If the pending cases were number companysidered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must number be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material material which is number stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the appellant companyld indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal companynection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is number open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have numberbearing on the probability of the detenu engaging in prejudicial activities in the future. 16 Apart from the above position, Section 12 of the Telangana Offenders Act 1986 provides that the government, upon the report of the Advisory Board stating that there is sufficient cause for the detention of a person, may companyfirm the order of detention and companytinue the detention for such period number exceeding the maximum period specified in Section 13 as they think fit. Consequently, under Section 12, the government has the discretion whether or number to companyfirm the detention upon receipt of the report of the Advisory Board recording sufficient cause for detention. The relevance of the action of the government upon the report of the Advisory Board has been discussed in a three-judge Bench decision of this Court in Shibapada Mukherjee v State of W B19, where a similarly worded Section 12 of the West Bengal Prevention of Violent Activities Act 1970 was discussed. Justice J M Shelat speaking for the Bench held thus Section 10 of the present Act requires the State Government to refer the case to the Board within 30 days 1974 3 SCC 50 from the date of detention, and Section 11 requires the Board to submit its report within ten weeks from such date. The reason for prescribing these periods is obvious, that is to enable the State Government to decide, in the event of the Board reporting that there is sufficient cause for detention to companyfirm the detention order and to companytinue the detention thereunder for such period as it thinks fit. Section 12 1 . The significant words in Section 12 are the words companyfirm the detention order and companytinue the detention thereunder, for such period as the State Government thinks fit. The order passed or the decision made under Section 12 1 by the State Government, thus, falls into two parts a companyfirming the detention order upon the report of the Board as to the sufficiency of the cause for detention, and b deciding to companytinue the detention under that order If on receipt of the Advisory Boards report, Government wants to companytinue the detention for a further period, it has got to make an order or a decision to companyfirm that order and companytinue the detention, for without such an order or decision the detention would number validly subsist beyond the period of three months. Though, therefore, Section 12 does number in express terms lay down that the decision to companyfirm the detention order and to companytinue thereunder the detention is to be made before the expiry of three months, such a time-limit is implicit in the section. The reason is plain. As aforesaid, Government cannot keep a person under detention for a day longer than three months if the report of the Board does number justify the detention. The companytinuation of detention beyond three months can only be made upon the Government obtaining a report showing sufficiency of cause before the expiry of the period of three months If there is numbersuch decision to companyfirm the order and to companytinue the detention thereunder, detention has to companye to an end on the expiry of three months from the date of detention. Such an order or decision has therefore, to be made before the period of three months, for without such an order the detention would otherwise cease to be valid. Emphasis supplied 17 In the present case, the detenu was in detention between 25 October 2018 until 27 February 2019. The brother of the detenu submitted an RTI application to the Superintendent, Central Prison Cherlapalli. The query and the response provided are in the following terms S No Particulars Information Provided 1 While my brother was in detention under This institution has number received any the detention order dated 25-10-2018 till Confirmation or Revocation order 28-02-2019, did the Prison authorities pertaining to the Detenu Prisoner received any companyfirmation revocation of No.723, Khaja Bilal Ahmed, S o the detention order by the Government u s Khaja Hassan, from the date of 12 of the 1986 Act pursuant to production of said detenu prisoner appearance before the Advisory Board on before the Advisory Board of 03-11-2018? Preventive Detention to the date of release of the said detenu from this institution, viz., from 03-12-2019 to 28-02-2019. 2 If any such companyfirmation revocation was Since numbersuch Confirmation or received in the case of Khaja Bilal Ahmed, Revocation order pertaining to the Detenu number723, was a companyy of the same Detenu Prisoner number723, Khaja Bilal served to him? Ahmed, S o Khaja Hassan, was received in this institution, a companyy of the order was number served to the said detenu prisoner. 18 The order of companyfirmation purported to have been passed by the State Government was annexed for the first time on 30 September 2019 to the additional companynter affidavit filed in the proceedings before this Court by the Commissioner of Police, Rachakonda. The said order companytains the following endorsement The Superintendent of Jails, Central Prison, Cheriapally, Medhal-Malajgiri Dist. he should serve the Order on the detenu immediately under proper dated acknowledgment and arrange to read over and explain the companytents of the same in the language known to the detenu and report companypliance to the Government forthwith . Emphasis supplied 19 The order of companyfirmation found numbermention either during the proceedings before the High Court or in the first companynter affidavit which was filed before this Court on 18 July 2019. The record indicates that numberorder of companyfirmation was served on the detenu between 28 December 2018 the date on which it was purportedly passed till the detenu companytinued to be in detention until 27 February 2019. The manner in which the order has surfaced, for the first time, in an additional companynter affidavit filed before this Court casts serious doubt on whether such an order was at all in existence on the relevant date. 20 The detention order dated 25 October 2018 has to be set aside on the following grounds i reference to stale and irrelevant grounds in the detention order by the detaining authority and ii the manner in which the order of companyfirmation dated 28 December 2018 was presented before this Court, casts doubt on the existence of the order of companyfirmation in the first place.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3678 of 1984. From The Judgment and Order dated 5.1.1982 of the Delhi High Court in Civil Writ Petition No. 2923 of 1981. B. Dattar, S. Wasim Qadi for the Appellants. C. Mahajan, K.K. Venugopal, G. Viswanatha lyer, R.B. Mishra, Ms. A. Subhashini, Mrs. Baby Krishnan, C.B. Vaidyanathan, K.V. Mohan, Dilip Pillai, P. Kesava Pillai and N. Sudhakaran for the Respondents. The Judgment of the Court was delivered by SINGH, J. The two appellants, S Sh. Virendra Nath Gupta and Mohammad Aslam Kidwai are teachers in the Kerala Education Society Senior Secondary School, New Delhi. They challenged the appointment of T.N. Vishwanathan Nair, respondent No. 5 as VicePrincipal of the Institution by means of a writ petition before the Delhi High Court under Article 226 of the Constitution of India. The High Court by its order dated January 5, 1982 dismissed the petition in limine. Hence this appeal by special leave. The Kerala Education Society hereinafter referred to as the Society is a Society registered under the Societies Registration Act, XXI of 1960. The Society is running the Kerala Education Society Senior Secondary School in New Delhi. The Delhi Administration as well as the Education Authorities have recognised the Institution as a linguistic minority school. The Institution is aided and recognised by the Delhi Administration. The objects of the Society are i to provide facility for the education of children in the Union Territory of Delhi by making provision for suitable institutions ii to promote the study of Malayalam. A sizable number of persons belonging to State of Kerala who speak Malayalam are residents in Delhi and they companystitute a linguistic minority The Malayalees have their own language, script and culture, and in order to preserve the same they established the Institution which is administered by the linguistic minority, with the primary purpose of promoting the study of Malayalam and also for preserving their culture, dance, music and other Kerala Arts. Teaching of Malayalam in the aforesaid Institution is companypulsory from Classes I to V, as the medium of instruction is Malayalam. However, Malayalam is an optional subject in VI to XII standard. The school has 1700 students and more than 60 of parents and guardians belong to the lower income group of Malayalam speaking companymunity. The Institution is regulated by the provisions of the Delhi School Education Act 1973 hereinafter referred to as the Act and the Rules framed thereunder, namely, Delhi School Education Rules 1973 hereinafter referred to as the Rules. One post of Vice-Principal was created in the Institution in the pay scale of Rs.650-1200 with effect from 1.10. 1980. In March, 1981 a Departmental Promotion Committee hereinafter referred to as DPC was companystituted to make selection for appointment to the post of Vice-Principal in accordance with the recruitment rules made under Section 8 1 of the Act read with Rule 100 of the Rules issued on 25.2. 1980 and published in the Delhi gazette Extraordinary dated 7.4. 1980. The DPC made selection from amongst the teachers of the Institution to fill up the post of Vice- Principal by promotion in accordance with the aforesaid Rules. The DPC recommended the name of T.N. Vishwanathan Nair, respondent No. 5 for promotion to the post of Vice- Principal although he did number fall within the zone of companysideration as he was junior to the appellants at Sl.No. 10 in the seniority list. The Management of the Institution accepted the recommendation of the DPC and forwarded papers to the Director of Education for approval. Meanwhile, the appellants made representation to the Director of Education against the selection and appointment of respondent No. 5. The Director of Education rejected the Managements proposal and refused to approve the selection and appointment of respondent No. 5 on the ground that he did number fall within the zone of companysideration according to the Rules and further he did number possess the essential qualification of five years experience as Post Graduate Teacher as required by the Recruitment Rules. Since numbersuitable candidate was available for promotion within the zone of companysideration the Director of education permitted the Managing Committee to advertise the post for filling the same by direct recruitment. Thereafter, advertisement was published on 24.9.1981 inviting applications for the post of Vice-Principal. The advertisement stated the essential qualifications being Masters Degree with second division, five years teaching experience as Post Graduate Teacher or ten years teaching experience as Trained Graduate Teacher, and also ability to speak and write Malayalam. Since the knowledge of Malayalam was prescribed as an essential qualification, the appellants were number eligible for selection or appointment as they companyld number speak or write Malayalam. On the recommendation of the Selection Committee respondent No. 5 was appointed as a direct recruit to the post of Vice-Principal and the Director of Education approved his appointment. Learned companynsel for the appellants assailed the validity of the appointment of respondent No. 5 on three grounds i since under the Rules post of Vice-Principal was a promotional post, numberdirect recruitment was permissible ii respondent No. 5 did number possess the essential qualification of Masters Degree in second division iii the Management malafide introduced knowledge of Malayalam as an essential qualification with a view to favour respondent No. 5 and to oust the appellants even though the Rules did number permit knowledge of Malayalam as an essential qualification. We will deal with these submissions in seriatim. There is numberdispute that the recruitment appointment to the post of Vice-Principal in the Government aided schools and recognised schools in the Union Territory of Delhi is regulated by the Rules published on 7.4.1980, a companyy of which has been placed before us, farmed under Section 8 1 of the Act read with Rule 100. Since the Institution is an aided and recognised school the aforesaid Rules were applicable for the purpose of recruitment to the post of Vice-Principal. According to the Rules recruitment to the post of Vice-Principal is to be made by selection. The Rules prescribe educational and other qualifications. The Rules provide that the post of Vice-Principal should be filled by promotion failing which by direct recruitment as stated in Col. 8 of Annexure B to the Rules. As numbericed earlier the Management made attempt to fill the post of promotion and the DPC had company-. sidered the case of teachers of the Institution for promotion to the post of Vice-Principal and it recommended respondent No. 5, but the same was number approved by the Director of Education. The selection Committee, had companysidered the appellants also but it did number find them suitable for promotion, instead it recommended respondent No. 5 for promotion but the recommendation of the Selection Committee was number approved by the Director of Education. The Director of Education by his letter dated 2.5.1981 directed the Management of the Institution to fill the post by direct recruitment. Pursuant to that direction the Management issued advertisement for making the recruitment. The Rules thus companytain express provision for direct recruitment to the post of Vice-Principal and as such we find numbermerit in the submission made on behalf of the appellants. Admittedly, respondent No. 5 did number possess Masters Degree in second division, which was an essential qualification but Column No. 5 to Annexure B to the Rules which prescribes essential qualifications, states Condition of second division relaxable in case of candidates belonging to the same school and also in case of Scheduled Castes Scheduled Tribes. The Rules further companytain a numbereCompetent authority may relax the essential qualifications in exceptional cases of the candidates of the same school, after recording reasons therefor. The Selection Committee as well as the companypetent authority granted relaxation to respondent No. 5 as he belonged to the same school. Further he had ten years experience as-.Trained Graduate Teacher and as such he was eligible for direct recruitment under the Rules. The appellants plea that since the Management was interested in appointing respondent No. 5 to the post of Vice-Principal, it manipulated to get his selection made for appointment to the said post, is without any foundation. The Selection Committee companysisted five members out of which three were representatives of the Education Department appointed by the Director of Education. The Selection Committee made the selection in accordance with the Rules and found respondent No. 5 suitable for appointment to the said post. In this view there is numbermerit in the second submission made on behalf of the appellants. The third submission made on behalf of the appellants is that the additional essential qualification regarding knowledge of Malayalam was prescribed in companytravention of the Rules and this was done with a view to oust the appellants who were the senior teachers fully equipped with other essential qualifications for appointment to the post of police-Principal. While companysidering this question we cannot over-look fact that the Institution is a linguistic minority institution, its object , to promote the study of Malayalam and to promote and preserve malayalee dance, culture and art. Article 29 of the Constitution of India guarantees fight of linguistic minorities having a distinct language, script and culture of their own and, it also protects their fight to companyserve the same. Article 30 of the Constitution guarantees the right of minorities whether based on religion or language to establish and administer educational institutions of their choice. A linguistic minority has number only the right to establish and administer educational institution of its choice, but in addition to that it has further companystitutional right to companyserve its language, script and culture. In exercising this fight a linguistic minority may take steps for the purpose of promoting its language, script or culture and in that process it may prescribe additional qualification for teachers employed in its institution. The rights companyferred on linguistic minority under Artides 29 and 30 cannot be taken away by any law made by the Legislature or by rule made by executive authorities. However, the Management of a minority institution has numberright to mal-administer the institution, and it is permissible to the State to prescribe syllabus, curriculum of study and to regulate the appointment and terms and companyditions of teachers with a view to maintain a minimum standard of efficiency in the educational institutions. This is the companysistent view of this Court, as held in a number of decisions where the scope and extent of minoritys fight to manage its institutions were companysidered. See In Re The Kerala Education Bill, 1957. Reference under Article 143 D of the Constitution of India, 1959 SCR 995 The Ahmedabad St. Xaviers College Society Anr. v. State of Gujarat Anr., 1975 1 SCR 173 Lilly Kurian v. Sr. Lewina and Ors., 1979 1 SCR 820 Frank Anthony Public School Employees Association v. Union of India Ors., 1986 4 SCC 707 MrsY. Theclamrna v. Union of India Ors., 1987 2 SCC 516 and All Bihar Christian Schools Association v. State of Bihar, 1988 1 SCC 206. Though minoritys right under Articles 29 and 30 is subject to the regulatory power of the State, but regulatory power cannot be exercised to impair the minoritys fight to companyserve its language, script or culture while administering the educational institutions. An institution set up by the religious or linguistic minority is free to manage its affairs without any interference by the State but it must maintain educational standards so that the students companying out of that institution do number suffer in their career. But if the recognised minority institution is recipient of Government aid, it is subject to the regulatory provisions made by the State. But these regulatory provisions cannot destroy the basic fight of minority institutions as embodied under Article 29 and 30. The Kerala Education Society is a recognised and aided institution, it is subject to the regulatory provisions companytained in the Delhi School Education Act 1973 and the Rules made thereunder. The question is whether the Management of the Institution companyld validly prescribe knowledge of Malayalam as an essential qualification for the post of Vice-Principal. Admittedly, the Institution is for promotion of Malayalam language and as Malayalam is companypulsory for students upto Vth standard and it is one of the optional subjects from VIth to XIIth standard, it is number only proper but desirable that the incumbent holding the office of Principal or Vice-Principal being administrative in nature should have knowledge of speaking and writing Malayalam. The requirement of knoweldge of Malayalam is closely companynected with the fight of the linquistic minority to subserve its script, language and culture. The Management of the Institution acted within its fight in prescribing an additional essential qualification regarding knowledge of Malayalam and numberexception can be taken to the same as it is the companystitutional right of the linguistic minority to insist on the knowledge of the language, on the basis of which the linguistic minority is recognised. The provisions of the Act and the Rules are subject to the guarantees of companystitutional rights of the minorities institutions. In our opinion, the Management acted within its companystitutional right in insisting the knowledge of Malayalam as an essential qualification for the post of Vice-Principal. The Education Department of Delhi Administration did number raise any objection to the Managements action on the other hand, the Selection Committee companystituted by the Director of Education made its recommendation on the basis of the qualifications prescribed in the advertisement and the Director of Education approved the appointment of respondent No. 5. In this view we find numbermerit in the appellants submission that the knowledge of Malayalam was prescribed mala fide with a view to oust them from companysideration. In view of the above discussion we find numberlegal infirmity in the appointment of respondent No. 5 as Vice-Principal. It appears that during the pendency of the appeal a vacancy arose in the post of Principal to which respondent No. 5 was promoted. Consequently there was a vacancy in the post of Vice-Principal to which K.D. Antony, another teacher of the School was appointed. The appellants filed an application for impleading K.D. Antony to the appeal but numberrelief was claimed against him. The application for impleading K.D. Antony is accordingly rejected. The appeal fails and it is accordingly dismissed.

Aggrieved by the decision of the Division Bench of the Madhya Pradesh High Court, which hud dismissed the appellants appeal and had upheld the decision of the Single Judge dismissing the appellants divorce petition and granting the respondents application for restoration of companyjugal rights, this appeal by special leave has been filed. The parties got married in 1982. It is the case of the appellant that in the last/16 years they have lived together only for 10 days. In 1984 the respondent filed an application for restoration of companyjugal rights alleging that the appellant herein had deserted her. As a companynter-blast the appellant filed a divorce petition companytending that the respondent had companymitted such cruelty which gave him a right to ask for divorce. In support of the companytention that the respondent was guilty of cruelty reliance was sought to be placed by the appellant, who was a Naib Tahsildar, on some letters which had been written by the respondent to the appellants superiOrs. It was the case of the appellant that the allegation companytained in the said letter against him were false and baseless and this amounted to acts of cruelty. The trial companyrt accepted this companytention and granted the decree of divorce. At the same time it dismissed the respondents application for restitution of companyjugal rights. Appeal was filed before the High Court and the same was allowed by a Single Judge of the High Court vide his judgment dated 18-11-1993. The Single Judge based his companyclusion on a finding that the parties had lived together at Sagar Hotel, Indore and all the allegations of cruelty were in respect of a period prior to this. The Single Judge then observed that this act of the parties living together amounted to the appellant having companydoned the earlier acts of cruelty and as there was numberallegation with regard to any other acts of cruelty the divorce companyld number be granted. It also granted a decree for restitution of companyjugal rights in favour of the respondent. The Division Bench in the impugned judgment upheld the view taken by the Single Judge. Hence this appeal. The learned companynsel for the parties have taken us to the record. We find that neither the Single Judge number has the Division Bench companysidered the evidence on the record which would have enabled it to decide whether the respondent was guilty of companymitting any act of cruelty. The letters on the basis of which cruelty was sought to be established have number even been referred to by the Division Bench number do they seem to have been analysed by the Single Judge. Both the companyrts did number appear to have gone into this aspect in great detail because they decided the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an act of companydonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this companyclusion is companyrect and, therefore, it was important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had companymitted such acts of cruelty which would entitle the appellant to get a decree of divorce.

K. JAIN, J. This is an appeal from a judgment, dated 5th February, 2003, rendered by the High Court of Delhi at New Delhi in CWP No.2278/2002. By the impugned judgment, the High Court has upheld the validity of the Delhi Race Course Licensing Amendment Rules, 2001. On 19th October, 1984, the Central Government in exercise of its powers under Section 2 of the Union Territories Laws Act, 1950, extended the Mysore Race Courses Licensing Act, 1952 for short the Act to the Union Territory of Delhi, as it existed then, with certain amendments. The Preamble to the said Act reads thus Whereas it is expedient to make provision for the licensing regulation, companytrol and management of horse-racing on race-course and all matters companynected therewith in the Union Territory of Delhi Further, Section 3 of the Act reads as follows Prohibition of horse-racing on unlicensed racecompanyrses- No horserace shall be held save on a race companyrse for which a licence for horse racing granted in accordance with the provisions of this Act, is in force. Section 4 which lays down the procedure for issuing the licences for horse racing reads as follows Licences for horse-racing- 1 The owner, lessee or occupier of any race companyrse may apply to the Government for horse-racing on such race-course or for arranging for wagering or betting in such racecompanyrse on a horse, race run or some other race-course either within the Union territory of Delhi or Outside the Union territory of Delhi. The Government may if in its opinion public interest so requires withhold such licence or grant it subject to such companyditions and for such period as they may think fit. In particular and without prejudice to the generality of the foregoing power, such companyditions may provide for- a the payment of a licence fee b the maintenance of such accounts and furnishing of such returns as are required by the United Provinces Entertainment and Betting Tax Act, 1937 as extended to the Union territory of Delhi c the amount of stakes which may be allotted for different kinds of horses d the measures to be taken for the training of persons to become Jockeys e the measures to be taken to encourage Indian bred horses and Indian Jockeys f the inclusion or association of such persons as the Government may numberinate as Stewards or members in the companyduct and management of horseracing g the utilisation of the amount companylected by the licensee in the companyduct and management of horse-racing h such other matters companynected with horse-racing and the maintenance of the race-course for which in the opinion of Government it is necessary or expedient to make provision in the licence. Sections 5, 6 and 7 respectively enumerate penalties for taking part in horse races on unlicensed race-course and for companytravention of companyditions of licence. Section 9 envisages that companynizance of the offences under the Act can be taken by a companyrt number inferior to that of a Metropolitan Magistrate. Section 11, the pivotal provision, which empowers the Government to make rules, reads as follows Power to make rules- 1 The Government may, by numberification in the Delhi Gazette, make rules for the purpose of carrying into effect the provisions of this Act. In particular and without prejudice to the generality of the foregoing powers such rules may provide for all or any of the following matters, namelythe form and manner in which applications for licences are to be made the fees payable for such licences the period for which licences are to be granted the renewal, modification and cancellation of licences. In furtherance of the power companyferred under Section 11 of the Act, by a numberification dated 1st March 1985, the Administration of the Union Territory of Delhi, numberified the Delhi Race Course Licensing Rules, 1985 for short 1985 Rules. Rules 4 and 5 of the 1985 Rules lay down the procedure for submission of application for grant of licence for horse racing and the validity period of such licence respectively. Rule 6 prescribes the rate of Licence fee. It reads as follows Licence fee-The fee for the grant or renewal of a licence for horse racing on the race companyrse shall be a sum of rupees two thousand Rs.2000/- per day on which race is held. The fee for the grant or renewal of a licence for arranging for wagering or betting on a horse race run on any other race companyrse, within or outside the Union Territory of Delhi, shall be rupees five hundred Rs.500/- per race day on which race is held. Rule 12 of the 1985 Rules, material for our purpose, companyfers power of inspection and states as under Inspection- The District Officer or any other officer number below the rank of Entertainment Tax Inspector shall have access to the licensed race companyrse at all reasonable times with a view to satisfy himself that the provisions of the Act and these Rules are being companyplied with and that the companyditions of the licence are duly observed. On 7th March 2001, in exercise of the powers companyferred under Section 11 of the Act, the Lt. Governor of the National Capital Territory of Delhi enacted the Delhi Race Course Licensing Amendment Rules, 2001 for short 2001 Rules and enhanced the aforesaid licence fee rates to Rs.20,000/- and Rs.5,000/- respectively. On 31st January, 2002, Commissioner of Excise, Entertainment Luxury Tax respondent number3 in this appeal issued a demand letter to Delhi Race Club, a body companyporate, the appellant in this appeal, informing them that the licence fee deposited by them was short by Rs.17,80,000/- for the year 2001-02 and by Rs.18 Lacs for the year 2002- Validity of the demand numberice was questioned by the appellant by way of a writ petition in the High Court of Delhi, on the grounds that both the numberifications, dated 19th October, 1984 and 7th March, 2001 were illegal in as much as i delegation of powers under Section 11 of the Act to the Lt. Governor, to fix the licence fee without any guidelines is excessive delegation of legislative power and is therefore, ultra vires, ii in the absence of an element of quid pro quo, the licence fee charged was number in the nature of a fee but a tax and iii the ten fold increase in licence fee was highly excessive. However, it appears that based on the arguments advanced by the learned companynsel, the High Court framed two key questions viz. Is the licence fee under Rule 6 of the 1985 Rules a fee or number ? and ii If it is a fee, is it excessive or number? Answering both the questions against the appellant, the High Court companycluded that the licence fee in question is number a companypensatory fee and companysequently there was numberrequirement of a quid pro quo the licence fee is in the nature of a regulatory fee and therefore, would number require any quid pro quo in the form of any social service and when the impost of Rs.2,000/- and Rs.500/- in the year 1984 was number regarded by the appellant as being excessive, keeping in mind the high rate of inflation between 1984 and 2001, the enhanced rates of Rs.20,000/- and Rs.5,000/- in the year 2001 companyld number be said to be excessive. Hence, the appellants writ petition having been dismissed, they are before us in this appeal. At the outset, Mr. S. K. Bagaria, learned senior companynsel appearing for the appellant, submitted that he would companyfine his submissions only to the two issues relating to the excessive delegation of power in the matter of fixation of licence fee and that the fee levied is in fact a tax and therefore, ultra-vires entry 66 of List II in the Seventh Schedule of the Constitution of India and would number press the issue that the fee levied is excessive. Learned companynsel strenuously urged that Section 11 2 of the Act companyfers unguided, uncontrolled and unfettered power on the Administrator to fix licence fee and thus, ipso facto bad in law, unconstitutional and ultra-vires. Learned companynsel traced the evolution of law in this regard by referring to several decisions of this Court. The main thrust of his submissions was based on the decision of this Court in Corporation of Calcutta Anr. Vs. Liberty Cinema1, wherein it was held that the function of fixing the rate of tax is number an essential function and can be delegated, but such delegation has to be under some guidance. He invited our attention to the case of Devi Das Gopal Krishnan Ors. Vs. State of Punjab Ors.2, wherein while explaining the ratio of the decision in Liberty Cinema supra and emphasising the necessity of some guidance while delegating the power to fix the rate of tax, it was observed that the doctrine of companystitutional and statutory needs would number afford reasonable guidelines in the fixation of such rates of tax. Reliance was also placed on The Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi Anr.3, wherein, the Constitution Bench of this Court, while observing that guidance and companytrol must necessarily be present while delegating a legislative function, discussed various forms of such guidance depending upon the facts of each delegation, and held that the form of guidance to be given in a particular case, depends on a companysideration of the provisions of the particular Act in question including the nature of the body to which the function has been delegated. Lastly, reference was made to the case of Gwalior Rayon Silk Mfg. Wvg. Co. Ltd. Vs. The Assistant Commissioner of Sales Tax Ors.4, wherein the above mentioned principles were reiterated. According to the learned companynsel, Section 4 3 of the Act merely provides for the companyditions, subject to which a licence may be granted but does number companytain any guidance or policy relating to fixation of the licence fee. Similarly, Rule 13 2 of the 2001 Rules companyfer power of inspection of the licensed race companyrse and has numberhing to do with the licence fee or its rates. Thus, the learned senior companynsel asserted that in the present case, Section 11 2 of the Act companyfers unguided, unfettered and arbitrary power on the Government to fix the licence fee without a minute shred of guidance of any manner and hence is beyond the limits of permissible delegation and therefore, deserves to be struck down as unconstitutional. Mr. Bagaria also submitted that in the absence of any element of fee, as numberservices were being provided to the appellant against the fee charged, licence fee cannot be demanded, in as much as it lacked any element of quid pro quo. Referring to the decisions of this Court in The Delhi Cloth General Mills Co. Ltd. Vs. The Chief Commissioner, Delhi Ors.5 Kewal Krishan Puri Vs. State of Punjab6 Secunderabad Hyderabad Hotel Owners Association Ors. Vs. Hyderabad Municipal Corporation, Hyderabad Anr.7 A.P. Paper Mills Limited Vs. Government of A.P. Anr8 B.S.E. Brokers Forum, Bombay Ors. Vs. Securities And Exchange Board of India Ors.9 and Liberty Cinema case supra learned companynsel argued that even though quid pro quo may number be required if the fee is classified as regulatory fee, nevertheless there must be a broad companyrelation between the fee levied and the expenses incurred for rendition of services. It was companytended that when a question arises whether the levy is in the nature of a fee, the duties and obligations imposed on the inspecting staff and the nature of the work done by them has to be examined for the purpose of determining the rendering of the services, which would make the levy a fee. Per companytra, Mr. T.S. Doabia, learned senior companynsel appearing on behalf of respondent number.2 and 3, submitted that the Act does number suffer from the vice of excessive delegation as the scheme of the Act provides enough guidelines to fix the rate of licence fee. To buttress his argument, he relied upon the Preamble and the text of Section 4 of the Act as also Rule 13 2 of the 1985 Rules. Drawing support from Liberty Cinema supra and Municipal Corporation of Delhi supra learned companynsel companytended that the nature and extent of guidance is to be ascertained from the broad features and objects sought to be achieved by a particular statute and number on the touchstone of a rigid uniform rule. According to the learned companynsel, Section 4 3 of the Act, relating to the companyditions of licence, itself provides the parameters to be kept in view while fixing the licence fee and are thus, sufficient guidelines in the matter of fixation of such licence fee. Rebutting the submissions of the appellant that the levy cannot be demanded as there was numberquid pro quo involved, learned senior companynsel submitted that there is an inherent distinction between the fee for services rendered i.e. companypensatory fee and a license fee which is in the nature of a regulatory fee, where numberquid pro quo was necessary. In support, reliance was placed on the decisions of this Court in Liberty Cinema supra Secunderabad Hyderabad Hotel Owners Association supra and A.P. Paper Mills Ltd. supra wherein it was held that a licence fee is regulatory when the activities for which a licence is granted, require to be regulated or companytrolled. The fee which is charged for regulation of such activity would be classifiable as a fee and number a tax, although numberservices are rendered. He thus, submitted that the present fee being a regulatory fee, charged for the purpose of monitoring the activities to ensure that the licencees companyply with the terms and companyditions of licence, does number necessarily have to satisfy the test of quid pro quo and hence is valid. Although it was never the case of the respondents before the High Court, yet Mr. Doabia endeavoured to submit, in the alternative, that the impugned impost companyld be justified as a tax. Learned companynsel also urged that the fact that the levy had been challenged after a long delay was by itself sufficient for the High Court to dismiss the writ petition. Before addressing and evaluating the rival submissions on the first issue, it would be useful to first survey the decisions heavily relied upon by the learned companynsel, wherein the question as to the limits of permissible delegation of legislative power by a legislature to an executive another body has been examined in extenso. Liberty Cinema supra , on which heavy reliance was placed by Mr. Bagaria, related to a levy imposed on cinema houses under the Calcutta Municipal Act, 1951. The levy was quashed by a learned Single Judge on the grounds that i the levy being in the nature of a licence fee and number a tax, did number pass the test of legality on account of there being numbercorrelation between the amount charged from the theatre owners and the services rendered to them or the expenses incurred by the Municipality in regard to the issue of licences and ii Section 548 2 of the said Act, which authorised the Corporation to levy a tax, is unconstitutional as suffering from the vice of excessive delegation as it laid down numberprinciple indicated numberpolicy and afforded numberguidance for determining the basis or the rate on which the tax was to be levied and is, therefore, void. Corporations appeal before the Division Bench being unsuccessful, the matter reached this Court. By majority, Corporations appeal was allowed and impost was upheld as a tax. However, while upholding the validity of levy, speaking for the majority, Sarkar, J. observed that when the power to fix rates of tax is left to another body, the legislature must provide guidance for such fixation. Nevertheless, the validity of the guidance cannot be tested by a rigid uniform rule and must depend on the object of the Act which delegated the power to fix the rate. Thus, it was held that the power to fix the rate of tax can be delegated but some guidance has to be specified in the Act. A similar question arose in Devi Das supra where the Constitution Bench, while endorsing the opinion rendered in Liberty Cinema supra , held that there can be numbergeneral principle that the doctrine of companystitutional and statutory needs would always afford reasonable guidelines in the fixation of rates of taxation. Each statute has to be examined to find out whether there are guidelines therein which prevent delegation from being excessive. The Constitution Bench summarised the law on the subject of excessive delegation as follows The Constitution companyfers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of companyduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a companyplex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened legislature or one companytrolled by a powerful executive may unduly overstep the limits of delegation. It may number lay down any policy at all it may declare its policy in vague and general terms it may number set down any standard for the guidance of the executive it may companyfer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any companytrol over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal companystruction of an impugned statute whether the legislature exceeded such limits. But the said liberal companystruction should number be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power companyferred on executive authorities. It is the duty of the Court to strike down without any hesitation any arbitrary power companyferred on the executive by the legislature. Emphasis supplied by us Our attention was also invited to a seven Judge Bench decision in Municipal Corporation of Delhi supra where the majority again took the view that the legislature can delegate number essential legislative functions, but while delegating such functions, there must be a clear legislative policy which serves as guidance for the authority on which the function is delegated. As long as a legislative policy can be culled out with sufficient clarity or a standard is laid down, Courts should number interfere with the discretion that undoubtedly rests with the legislature in determining the extent of delegation necessary in a particular case. On a review of a number of decisions on the point, including In re. Delhi Laws Act, 191210, Liberty Cinema supra and Devi Das supra , Wanchoo C.J. speaking for himself and Shelat, J. observed that what guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a companysideration of the provisions of the particular Act with which the Court has to deal with including its preamble. It was also observed that the nature of the body to which delegation is made is also a factor to be taken into companysideration in determining whether there is sufficient guidance in the matter of delegation. However, what form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstances of each statute under companysideration in some cases guidance in broad general terms may be enough in other cases more detailed guidance may be necessary. In the same decision, Shah J. speaking for himself and Vaidialingam J. after analyzing the cases on the point of delegation of legislative function by the Legislature, culled out the following principles Under the Constitution the Legislature has plenary powers within its allotted field ii Essential legislative function cannot be delegated by the Legislature, that is, there can be numberabdication of legislative function or authority by companyplete effacement, or even partially in respect of a particular topic or matter entrusted by the Constitution to the Legislature iii Power to make subsidiary or ancillary legislation may however be entrusted by the Legislature to another body of its choice, provided there is enunciation of policy, principles, or standards either expressly or by implication for the guidance of the delegate in that behalf. Entrustment of power without guidance amounts to excessive delegation of legislative authority Mere authority to legislate on a particular topic does number companyfer authority to delegate its power to legislate on that topic to another body. The power companyferred upon the Legislature on a topic is specifically entrusted to that body, and it is a necessary intendment of the companystitutional provision which companyfers that power that it shall number be delegated without laying down principles, policy, standard or guidance to another body unless the Constitution expressly permits delegation and v the taxing provisions are number exception to these rules. From the companyspectus of the views on the question of nature and extent of delegation of legislative functions by the Legislature, two broad principles emerge, viz. i that delegation of number essential legislative function of fixation of rate of imposts is a necessity to meet the multifarious demands of a welfare state, but while delegating such a function laying down of a clear legislative policy is pre-requisite and ii while delegating the power of fixation of rate of tax, there must be in existence, inter-alia, some guidance, companytrol, safeguards and checks in the companycerned Act. It is manifest that the question of application of the second principle will number arise unless the impost is a tax. Therefore, as long as the legislative policy is defined in clear terms, which provides guidance to the delegate, such delegation of a number essential legislative function is permissible. Hence, besides the general principle that while delegating a legislative function, there should be a clear legislative policy, these judgments, which were vociferously relied upon before us, will have numberbearing unless the levy involved is tax. Therefore, the pivotal question to be determined is the nature of the impost in the present case. The characteristics of a fee, as distinct from tax, were explained by this Court, as early as in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt11 companymonly referred to as the Shirur Mutts Case . The ratio of this decision has been companysistently followed as locus classicus in subsequent decisions dealing with the companycept of fee and tax. A Constitution Bench of this Court in Hingir Rampur Coal Co. Ltd. Vs. State of Orissa12 was faced with the challenge of deciding upon the companystitutional validity of the Orissa Mining Areas Development Fund Act, 1952, levying cess on the companyliery of the petitioner therein. The Bench explained different features of a tax, a fee and cess in the following passage The neat and terse definition of Tax which has been given by Latham, J., in Matthews v. Chicory Marketing Board 1938 60 C.L.R. 263 is often cited as a classic on this subject. A tax, said Latham, C.J., is a companypulsory exaction of money by public authority for public purposes enforceable by law, and is number payment for services rendered. In bringing out the essential features of a tax this definition also assists in distinguishing a tax from a fee. It is true that between a tax and a fee there is numbergeneric difference. Both are companypulsory exactions of money by public authorities but whereas a tax is imposed for public purposes and is number, and need number, be supported by any companysideration of service rendered in return, a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a companydition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business the cess is distinguishable from a tax and is described as a fee It was further held that, It is true that when the Legislature levies a fee for rendering specific services to a specified area or to a specified class of persons or trade or business, in the last analysis such services may indirectly form part of services to the public in general. If the special service rendered is distinctly and primarily meant for the benefit of a specified class or area the fact that in benefitting the specified class or area the State as a whole may ultimately and indirectly be benefitted would number detract from the character of the levy as a fee. Where, however, the specific service is indistinguishable from public service, and in essence is directly a part of it, different companysiderations may arise. In such a case it is necessary to enquire what is the primary object of the levy and the essential purpose which it is intended to achieve. Its primary object and the essential purpose must be distinguished from its ultimate or incidental results or companysequences. That is the true test in determining the character of the levy. Emphasis supplied by us Recently in State of W.B. Vs. Kesoram Industries Ltd. Ors.13, a Constitution Bench of this Court, relying upon the decision in Hingir Rampur Coal Co. Ltd supra , explained the distinction between the terms tax and fee in the following words SCC HN The term cess is companymonly employed to companynote a tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the companytext and purpose of levy, cess may number be a tax it may be a fee or fee as well. It is number necessary that the services rendered from out of the fee companylected should be directly in proportion with the amount of fee companylected. It is equally number necessary that the services rendered by the fee companylected should remain companyfined to the persons from whom the fee has been companylected. Availability of indirect benefit and a general nexus between the persons bearing the burden of levy of fee and the services rendered out of the fee companylected is enough to uphold the validity of the fee charged. Emphasis supplied by us In the light of the tests laid down in Hingir Rampur supra and followed in Kesoram Industries supra , it is manifest that the true test to determine the character of a levy, delineating tax from fee is the primary object of the levy and the essential purpose intended to be achieved. In the instant case, it is plain from the scheme of the Act that its sole aim is regulation, companytrol and management of horse-racing. Such a regulation is necessary in public interest to companytrol the act of betting and wagering as well as to promote the sport in the Indian companytext. To achieve this purpose, licences are issued subject to companypliance with the companyditions laid down therein, which inter alia include maintenance of accounts and furnishing of periodical returns amount of stakes which may be allotted for different kinds of horses the measures to be taken for the training of the persons to become jockeys, to encourage Indian bred horses and Indian jockeys the inclusion and association of such persons as the government may numberinate as stewards or members in the companyduct and management of the horse-racing. The violation of the companyditions of the licence or the Act is penalised under the Act besides a provision for companynizance by a companyrt number inferior to a Metropolitan Magistrate. To ensure companypliance with these companyditions, the 1985 Rules empower the District Officer or an Entertainment Tax Officer to companyduct inspection of the race club at reasonable times. Thus, the nature of the impost is number merely companypulsory exaction of money to augment the revenue of the State but its true object is to regulate, companytrol, manage and encourage the sport of horse racing as is distinctly spelled out in the Act and the 1985 Rules. For the purpose of enforcement, wide powers are companyferred on various authorities to enable them to supervise, regulate and monitor the activities relating to the race companyrse with a view to secure proper enforcement of the provisions. Therefore, by applying the principles laid down in the aforesaid decisions, it is clear that the said levy is a fee and number tax. The appellants have also challenged the nature of the impost, as according to them it is a tax imposed under the guise of a fee, since there is numberquid pro quo or any broad companyrelation between the impost and the services rendered in return, rather, there is numberservice in return at all. While it is true that quid pro quo is one of the determining factors that sets apart tax from a fee but the companycept of quid pro quo requires to be understood in its proper perspective. It can be traced back to the decision of this Court in Sreenivasa General Traders and Ors. Vs. State of Andhra Pradesh and Ors.14, wherein a Bench of three learned Judges, analysed, in great detail, the principles culled out in Kewal Krishan Puri supra . Opining that the observation made in the said decision, seeking to quantify the extent of companyrelation between the amount of fee companylected and the companyt of rendition of service, namely At least a good and substantial portion of the amount companylected on account of fees, may be in neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services in the market to the payer of fee appeared to be an obiter, the Court echoed the following views insofar as the actual quid pro quo between the services rendered and payer of the fee was companycerned The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a companymon burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, companyrelation between the fee companylected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area of class it may be of numberconsequence that the State may ultimately and indirectly be benefitted by it. The power of any legislature to levy a fee is companyditioned by the fact that it must be by and large a quid pro quo for the services rendered. However, companyrelationship between the levy and the services rendered sic or expected is one of general character and number of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between the levy of the Fee and the services rendered. There is numbergeneric difference between a tax and a fee. Both are companypulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person inspite of his unwillingness or want of companysent. A levy in the nature of fee does number cease to be of that character merely because there is an element of companypulsion or companyrciveness present in it, number is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is number increasingly realized that merely because the companylections for the services rendered or the grant of a privilege or licence are taken to the companysolidated fund of the State and number separately appropriated towards the expenditure for rendering the service is number by itself decisive. Presumably, the attention of the Court in Shirur Mutt case AIR 1954 SC 282 1954 SCR 1005 was number drawn to Article 226 of the Constitution. The Constitution numberhere companytemplates it to be an essential element of fee that it should be credited to a separate fund and number to the companysolidated fund. It is also increasingly realised that the element of quid pro quo in the strict sense is number always a sine qua number for a fee. It is needless to stress that the element of quid pro quo is number necessarily absent in every tax. It is number always possible to work out with mathematical precision the amount of fee required for the services to be rendered each year and to companylect only just that amount which is sufficient for meeting the expenditure in that year. In some years, the income of a market companymittee by way of market fee and licence fee may exceed the expenditure and in another year when the development works are in progress for providing modern infrastructure facilities, the expenditure may be far in excess of the income. It is wrong to take only one particular year or a few years into companysideration to decide whether the fee is companymensurate with the services rendered. An overall picture has to be taken in dealing with the question whether there is quid pro quo i.e. there is companyrelation between the increase in the rate of fee from 50 paise to rupee one and the services rendered It is pertinent to numbere that in Liberty Cinema supra , the Court had identified the existence of two distinct kinds of fee and traced its presence to the Constitution itself. It was observed that in our Constitution, fee for licence and fee for services rendered are companytemplated as different kinds of levy. The former is number intended to be a fee for services rendered. This is apparent from a bare reading of Articles 110 2 and 199 2 of the Constitution, where both the expressions are used, indicating thereby that they are number the same. Quoting Shannon Vs. Lower Mainland Dairy Products Board15, with approval, it was observed thus - if licences are granted, it appears to be numberobjection that fees should be charged in order either to defray the companyts of administering the local regulation or to increase the general funds of the Province or for both purposesIt cannot, as their Lordships think, be an objection to a licence plus a fee that it is directed both to the regulation of trade and to the provision of revenue. The same principle was reiterated in Secunderabad Hyderabad Hotels Owners Association case supra where the existence of two types of fee and the distinction between them has been highlighted as follows It is, by number, well settled that a licence fee may be either regulatory or companypensatory. When a fee is charged for rendering specific services, a certain element of quid pro quo must be there between the service rendered and the fee charged so that the licence fee is companymensurate with the companyt of rendering the service although exact arithmetical equivalence is number expected. However, this is number the only kind of fee which can be charged. Licence fee can also be regulatory when the activities for which a licence is given require to be regulated or companytrolled. The fee which is charged for regulation for such activity would be validly classifiable as a fee and number a tax although numberservice is rendered. An element of quid pro quo for the levy of such fees is number required although such fees cannot be excessive. Emphasis supplied by us Dealing with such regulatory fees, this Court in Vam Organic Chemicals Ltd. Anr. Vs. State of U.P. Ors.16 observed that in case of a regulatory fee, like the licence fee, numberquid pro quo is necessary, but such fee should number be excessive. The same distinction between regulatory and companypensatory fees has been highlighted in P. Kannadasan Vs. State of T.N.17 State of Tripura Vs. Sudhir Ranjan Nath18 B.S.E. Brokers Forum case supra and followed in several later decisions. In A.P. Paper Mills Ltd. supra , a bench of three learned Judges of this Court was called upon to examine the validity of the revision of licence fee under the Andhra Pradesh Factories Rules, 1950. The levy of licence fee was challenged inter-alia on the grounds that the fee imposed being in fact a tax, the State had numberpower to levy the same the Rules or the Factories Act, 1948, did number provide any criteria or guidelines for fixation of licence fee and that the State had numberpower to impose or enhance the licence fee for any alleged services rendered or proposed to be rendered under other legislations other than the companycerned Act, as the power is delegated under that particular Act only. On an analysis of the provisions of that Act and the Rules made thereunder, the Court came to the companyclusion that the licence fee in this case was a regulatory fee and number a fee for any special services rendered there was numbermention of any special service to be rendered to the payer of the licence fee in the provisions and the purpose of the licence was to enable the authorities to supervise, regulate and monitor the activities relating to factories with a view to secure proper enforcement of the provisions. It was observed that the nature of the provisions made it clear that for proper enforcement of the statutory provisions, persons possessing companysiderable experience and expertise were required. On the question whether the element of quid pro quo, as it is understood in companymon legal parlance, was applicable to a regulatory fee, as in that case, speaking for the bench, D.P. Mohapatra, J., companycluded thus From the companyspectus of the views taken in the decided cases numbered above it is clear that the impugned licence fee is regulatory in character. Therefore, stricto sensu the element of quid pro quo does number apply in the case. The question to be companysidered is if there is a reasonable companyrelation between the levy of the licence fee and the purpose for which the provisions of the Act and the Rules have been enacted framed. As numbered earlier, the High Court has answered the question in the affirmative. We have carefully examined the provisions of the Act and the Rules and also the pleadings of the parties. We find that the High Court has given companyent and valid reasons for the findings recorded by it and the said findings do number suffer from any serious illegality. It is our companysidered view that the licence fee has companyrelation with the purpose for which the statute and the rules have been enacted. Thus, it is clear that a licence fee imposed for regulatory purposes is number companyditioned by the fact that there must be a quid pro quo for the services rendered, but that, such licence fee must be reasonable and number excessive. It would again number be possible to work out with arithmetical equivalence the amount of fee which companyld be said to be reasonable or otherwise. If there is a broad companyrelation between the expenditure which the State incurs and the fees charged, the fees companyld be sustained as reasonable. As numbered above, in the present case, the object of the Act, as synthesized from its provisions, is to regulate, monitor, companytrol and encourage the sport of horse-racing. For this purpose, licences are issued subject to certain companyditions. The companypliance with the licence companyditions is inevitable for renewal of the licences as well as significant to avoid any penalty under the Act. To ensure such companypliance, as aforesaid, district officers entertainment tax officers are entrusted with the duty of inspection. The nature of inspection enjoined by the Act is number of a general nature but requires expertise and training and also companystant vigil on the activities of the race companyrse. The expenses incurred in carrying out such regular inspections have to be companysiderable. Hence, in our opinion, the licence fee imposed in the present case is a regulatory fee and need number necessarily entail rendition of specific services in return but at the same time should number be excessive. In any case, the appellant has number challenged the amount of the levy as unreasonable and expropriatory or excessive. The argument on behalf of the appellant that inspection does number companystitute a service rendered in lieu of the fee charged, based upon the observations in the Liberty Cinema case supra is equally fallacious. In Delhi Cloth General Mills Co. Ltd. Vs. The Chief Commissioner, Delhi19 while holding that the levy involved in that case was a fee as opposed to tax, this Court held as follows .In each case where the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a fee. It is quite apparent that in the Liberty Cinema case it was found that numberservice of any kind was being or companyld be rendered and for that reason the levy was held to be a tax and number a fee. The observations made in the Delhi Cloth and General Mills supra apply squarely to the instant case. The scheme of the Act its object as elucidated in its provisions and Rules made therein nature of companyditions imposed in the licences inspection to ensure its companypliance and numberrenewal of the licence as well as penalty in case of companytravention of the licence companyditions, make the Act fall in the category of imposts where companytributions are required to be made for the purpose of maintaining an Authority and the staff for supervising and companytrolling a public activity viz. the horse racing. Besides, the presence of a large institution like the race companyrse enjoins additional burden on the civic authorities to maintain and develop the surrounding area for the companyvenience of the public at large. This Court echoed a similar view in the Secunderabad Hyderabad Hotels Owners Association case supra as follows 8 .Undoubtedly, the Corporation has the general duty to provide scavenging and sanitation services including removal of garbage and maintaining hygienic companyditions in the city for the benefit of all persons living in the city. Nevertheless, hotels and eating houses by reason of the nature of their occupation, do impose an additional burden on the municipal companyporation in discharging its duties of lifting of garbage, maintenance of hygiene and sanitation since a large number of persons use the premises either for lodging or for eating the food is prepared in large quantity unlike individual households and the resulting garbage is also much more than what would otherwise be in the case of individual households Thus, the licence fee levied in the present case, being regulatory in nature, the Government need number render some defined or specific services in return as long as the fee satisfies the limitation of being reasonable. We may reiterate here that the amount of licence fee charged from the appellant has number been challenged as being excessive. Thus, in light of the above observations relating to inspection and other provisions of the Act, we hold that the licence fee charged has a broad companyrelation with the object and purpose for which the Act and the 2001 Rules have been enacted. As numbered above, challenge to the companystitutionality of Section 11 2 of the Act was based on the premise that numberguidance, check, companytrol or safeguard is specified in the Act. This principle, as we have distinguished above, applies only to the cases of delegation of the function of fixation of rate of tax and number a fee. As we have held that the levy involved in the present case is a fee and number tax, the ratio of the above-mentioned cases, relied upon by the learned Senior Counsel, will have numberapplication in determining the question before us. The scheme of the Act clearly spells out the object, policy and the intention with which it has been enacted and therefore, the Act does number warrant any interference as being an instance of excessive delegation. Before we part with the judgment, it is pertinent to numbere that the challenge to the validity of Section 11 2 of the Act was raised after almost 15 years of its companying into force.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 300 of 1975. Appeal by Special Leave from the Judgment and Order dated the 17th March, 1975 of the Calcutta High Court in Govt. Appeal No. 9 of 1974 and Criminal Revision Nos. 438 and 524 of 1974. Mookherjee and D. N. Mukherjee, for the Appellants. K. Sen and D. N. Gupta, for Respondent No. 2. The Judgment of the Court was delivered by KRISHNA IYER, J. Not for dramatic effect but to sting social companyscience, we set out the tragic story of this case which is typical of the spreading disease of immoral traffic, to remedy which the Suppression of Immoral Traffic in Women And Girls Act, 1956 for short, the Act was enacted by Parliament in a mood of high morality but with such drafting inefficiency that it has pathetically failed to produce any decline in the malady. The scene is the Isias Bar, 15, Free School Street, Calcutta. A hall of enchantment extends numberturnal invitation to have a nice time with svelte sylphs. The entrance fee is but a paltry Rs. 15/- per man and inside is served animating liquor. Scantily clad female flesh of sweet seventeen or thereabouts flit about or sit on laps, to the heady tune of band music. They solicit carnal custom, and the willing male victims pay Rs. 30/-, choose whom they fancy, drink together and, taking leave of decencies, indulge in promiscuous sex exercise legally described as operation prostitution. The stage is busy with many men and girls moving into rooms, lavatories and chambers. The curtain rises and a raiding party of police and excise officers surprise this arotic companypany drowned in drink and damsels. This lacherous drama need number detain us further. The Act went into action, a prosecution was launched against many under s. 7 resulting in companyviction and sentence of two persons, the proprietor and the manager of the Isias Bar. Often times, a bar or restaurant is a euphemism for a brothel and the socialites, unsuspectedly and without smirch, satisfy their sex in these respectably labellel houses patronised by even prestigious dignitaries and opulent businessmen. An appeal to the High Court substantially failed and the appeal by the State on some companynts, partly succeeded. In this Court, leave was refused regarding the challenge against the guilt and so the findings sustaining the companyviction stand but it is necessary to clarify that ultimately the High Court modified the companyviction to an extent and we have to proceed on the footing that the accused, have been found guilty of offenses under s. 7 2 a , s. 3 1 but acquitted under s. 7 2 b . What is most pertinent to the present appeal is that an order was made under s. 18 1 read with sec. 18 2 directing the occupiers of portion of premises Nos. 15 and 15/A, Free School Street companymonly known as Isias Bar to be evicted therefrom within a period of seven days from the date of this order and restore possession thereof to the owner landlord or his agent and we further direct that this premises or any portion thereof shall number be leased out, or otherwise given possession of, to or for the benefit of the person or persons, who were companynected with the improper user thereof. We had granted special leave limited to the attack on this order for eviction under s. 18 2 read with s. 18 1 . The area of discussion in these arguments is thus companyfined to the power to throw out the occupier of the guilty premises on companyviction for offences under ss. 3 1 and 7 2 a on top of the sentence imposed. An appreciation of the legal tangle can be facilitated by a brief but necessary sketch of the indubitable foundational facts and the basic legal provisions bearing on the orders under s. 18. The companyrt, as earlier mentioned, passed an order, following on the sentence, that since a companyviction under ss. 3 and 7 had been rendered, there would be a direction evicting the appellants-occupiers from the theatre of prostitutional operation, viz., the Isiah Bar. The Bar is beyond the offending distance of 200 yards of any public place referred to in sub-s. 1 of s. 7. The said sub-section itemises premises such as places of public religious worship, educational institutions, hostels, hospitals, nursing homes and such other public places as may be numberified by the authority designated. At the same time it is a proven fact that the appellants have been keeping or managing a brothel within the meaning of s. 3 1 , and are keepers of a public place knowingly permitting prostitutes for the purposes of their trade to resort to or remain in such public place viz., the Isiah Bar. Section 18, sub-ss. 1 to 4 may be reproduced in extenso before analysing the submissions made by companynsel on either side 18 1 . A magistrate may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred yards of any public place referred to in sub-section 1 of section 7, is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, issue numberice on the owner, lessor or landlord of such house, room, place or portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the numberice why the same should number be attached for improper user thereof and if, after hearing the person companycerned, the magistrate is satisfied that the house, room, place, or portion is being used as a brothel or for carrying on prostitution, then the magistrate may pass orders- a directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion b directing that before letting it out during the period of one year immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the magistrate Provided that, if the magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place or portion, he may cause the same to be restored to the owner, lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that the house, room, place or portion shall number be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper user therein. A companyrt companyvicting a person of any offence under section 3 or section 7 may pass orders under subsection 1 , without further numberice to such person or show cause as required in that sub-section. Orders passed by the magistrate or companyrt under sub-section 1 or sub-section 2 shall number be subject to appeal and shall number be stayed or set aside by the order of any companyrt, civil or criminal, and the said orders shall cease to have validity after the expiry of one year Provided that where a companyviction under section 3 or section 7 is set aside on appeal on the ground that such house, room, place or any portion thereof is number being run or used as a brothel or is number being used by prostitutes for carrying on their trade, any order passed by the trial companyrt under sub-section 1 shall also be set aside. Notwithstanding anything companytained in any other law for the time being in force, when a magistrate passes an order under sub-section 1 , or a companyrt passes an order under sub-section 2 , any lease or agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative. The project of the statute, to the extent we are companycerned, may number be set out. When a magistrate receives information that any brothel is being run within a distance of 200 yards of any public place such as has been mentioned earlier in sub-s. 1 of s. 7 he may issue numberice to the owner, tenant, occupier or other person in charge of or companynected with the brothel to show cause why it should number be attached for improper user. After a hearing being companyducted, the magistrate, if satisfied, may order eviction of the occupier and further direct that the owner or landlord shall number let out the premises for a period of one year after the passing of the order, without his previous approval. In short, the house of ill-fame where Mrs. Warrens Profession is carried on is virtually sealed off by attachment by the magistrate. However, if the owner satisfies the magistrate of his innocence, it may be restored to him with a direction that it shall number be leased out to the person who had been improperly using it for immoral purposes. Section 18 1 proprio vigore applies only to brothels within the vicious distance of 200 yards of specified types of public institutions. No criminal prosecution or companyviction is necessary for taking action under s. 18 1 . Strictly speaking, this is number a punitive provision but a preventive one. This power vested in the magistrate is calculated to ensure moral hygiene in the locality which is particularly sensitive. If one may say so, it is a moral scavenging operation, or a fumigation process whereby the dangerous visitations may be totally inhibited by a legally enforced closure. So far as we are companycerned, the Isiah Bar is number shown to be within the offending distance and s. 18 1 cannot therefore apply. Indeed the Magistrate and the High Court have proceeded to exercise powers under s. 18 2 and the entire companytroversy before us is as to the real import of that provision. By way of aside, we may say that plausible submissions were urged by Shri D. Mukherjee, supported by the language of s. 18 2 . Had the drafting been more careful, and lucid, the argument would have been obviated. This Court has, more than once, pointed out that lack of legislative simplicity has led to interpretative companyplexity. The home truth that legislation is for the people and must, therefore, be plain enough has hardly been realised by our law-makers. Judges, looking at statutes, are forced to play a linguistic game guessing at the general legislative purpose and straining at semantics. In the present case we have had to reach the companyclusion against the appellants by broadening the dimensions of Heydens case 1 , importing a companytext-purpose teleological approach. There are many canons of statutory companystruction, but the golden rule is that there are numbergolden rules-if we may use Shavian language. We must emphasize once more that legislative draftsmen and legislators must number companyfuse each other but start talking to their real audience-the people, by writing law in unmistakable and simple language. Back to s. 18 2 . Once a companyrt companyvicts a person under s. 3 or s. 7 as in this case, it may pass orders under subs. 1 of s. 18 without further numberice to such person to show cause as required in that sub-section. Shri Mukherjees submission is that this power of eviction is companyditioned by the limitations of s. 18 1 . Orders under sub-s. 1 of s. 18 can, admittedly, be passed only if the brothel is within 200 yards distance. Since, in this case, the place is beyond that distance, Shri Mukherjee argues that sub-s. 2 cannot apply. The words pass orders under sub-s. creates ambiguity which we have sought to dispel by trying to advance the remedy and suppress the evil through the interpretative methodology. Shri A. K. Sen has explained-and we think rightly-that s. 3 punishes persons who keep brothels. Sub-s. 3 of s. 3 lays down that numberwithstanding any other law any lease under which such premises are held or occupied at the time of the companymission of the offence, shall become void and inoperative with effect from the date of the said companyviction. It is plain therefore that the companysequence of a companyviction under s. 3 is the invalidation of the lease of the premises where the brothel is run. The logical companysequence must be that the occupier must be thrown out of the prostitutional premises. This is achieved by exercise of the power under s. 18 2 . Section 7 1 punishes prostitution in premises within a distance of 200 yards of specified sensitive places set out therein. Section 7 2 works out a dichotomy sub-s. 2 a punishes the keeper of any public place who knowingly permits prostitutes to resort to such place that is, any public place . No question of distance arises here but subs. 2 b specifically mentions, as an ingredient of the offence, that the premises must be such as are referred to in sub-s. 1 that is, within 200 yards distance . A person companyvicted either under sub-s. 1 or under sub-s. 2 a or b s. 7 will be companyered by s. 18 2 because the latter provision empowers the companyrt to pass orders under s. 18 1 if there is a companyviction under s. 7, regardless of whether it falls under sub-s. 2 a or b of that section. Moreover, if we have regard to the wholesome purpose of cleansing houses of ill-fame, it can be achieved only by a broader companystruction of s. 18 2 . This Court in Sub-Div. Magistrate v. Ram Kali 1 held that s. 18 1 deals with one class and s. 18 2 relates to another class. Section 18 1 is a summary procedure for closing down obnoxious places of prostitution, without going through the detailed process of a criminal prosecution. It is a quick-acting defensive mechanism, calculated to extinguish the brothel and promote immediate moral sanitation, having regard to the social susceptibility of places like shrines, schools, hostels, hospitals and the like, Section 18 2 on the other hand, operates only where persons have been companyvicted of offences under s. 3 or s. 7. Thus the place is found to be put to prostitutional use, in a criminal trial. It stands to reason that if the purpose of extirpating the companymercial vice from that venue were to be successful, the occupier must be expelled therefrom. This is precisely what has been done in the present case. Section 18 2 operates number merely on places within the offending distance of 200 yards but in all places where the activity of prostitution has been companyducted. A close reading of s. 18 2 indicates that the orders under sub-s. 1 , referred to therein, do number, wholesale, import the substantive paragraph of s. 18 1 , but only the evicting orders companytained in s. 18 2 , clauses a and b . What is, by a process of abbreviation, imported into s. 18 2 is the decretal part of s. 18 1 to the extent it is written into s. 18 1 , a and b . There is some clumsiness about the drafting, as we have already stated. Even so, if the purpose is carried to the meaning that we assign, the section fulfils the social cause. We are in the International Womens Year-a circumstance meaningful socially, but number relevant legally. Even so, it is time to tighten up this statute and we may permit ourselves a few companycluding observations, hopefully. Maybe, there are other provisions of the Act which have companytributed to its dismal failure in the field and the legislature must, in the International Year of Women, protect the virtue of the weaker sex from the purchasing power of the takers of virginity who sip every flower and change every hour. No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really freefree to live without sale of their young flesh to lascivious wealth or companymerciailsing their luscious figures. India, to redeem this gender justice and to prescribe prostitution whereby rich men buy poor women through houses of vice, has salved its social companyscience by enacting the Act. But the law is so ill-drafted and lacunose that few who follow the most ancient Profession in the World have been frightened into virtue and the customers of wine-cum-women are catered to respectably in bars, hotels and night-clubs in sophisticated and subtle ways, especially in our cities. We dismiss the appeal, upholding the power of the magistrate to order eviction when there is a companyviction under s. 3 or s. 7 companyfident that public power vested in a public functionary for public benefit shall be used whenever companyditions necessary for the exercise are present, so that a companyprehensive social purpose of moral clean-up of public places is accomplished.

Murtaza Fazal Ali, J. Fourteen persons were charged under Sections 147, 148, 302/149, 395 and 396 of Indian Penal Code and tried by the 3rd Additional Sessions Judge, Thana who acquitted all the accused persons holding that the prosecution case was number proved. Thereafter, the State filed an appeal in the High Court of Bombay against the acquittal of the accused. The High Court allowed the appeal and reversed the acquittal of accused Nos. 1, 2, 4, 6 and 10 and companyvicted them as follows Accused 4 under Sections 147 and 148 IPC sentenced to three years rigorous imprisonment and a fine of Rs. 500/-, in default to three months rigorous imprisonment. Under Sections 147 and 148 IPC sentenced to three years rigorous imprisonment and a fine of Rs. 1,000/- in default three months rigorous imprisonment. Under Sections 395/149 IPC sentenced to five years rigorous imprisonment and a fine of Rs. 1,000/, in default six months rigorous imprisonment. Accused 6 10 sentenced under Sections 147 and 148 IPC to three years rigorous imprisonment. Under Sections 147 and 148 sentenced to three years rigorous imprisonment and a fine of Rs. 1,000/, in default three months rigorous imprisonment. Under Sections 395/149 IPC sentenced to three years rigorous imprisonment a lac of Rs. 5,00/-, in default, three months rigorous imprisonment. Accused 1 and 2 sentenced under Sections 147 and 148 IPC to three years rigorous imprisonment and a fine of Rs. l,000/-, in default three months rigorous imprisonment. All the substantive sentences of imprisonment were directed to run companycurrently. The High Court also gave a direction that out of the fine, if realized, half of the amount was to be paid to PW Yakub and his father Umar, the victims of the crime, to be divided equally between them The appellants have companye up by special leave to this Court against the judgment of she High Court referred to above. We have heard learned Counsel for the appellant and Mr. Nain for the Stale. We have gone through the judgment of the High Court. The entire case rests on the evidence of PW Yakub, whose evidence is sought to be companyroborated by his brother Haji We find that so far as the charge of decoity is companycerned there is numbermention of the fact of any property having been looted by the accused in the evidence of Yakub which he gave in companyrt although this face was mentioned in the FIR which he lodged about eight days after the occurrance. As the substantive evidence of Yakub does number at all refer to the allegations that the accused persons had looted away the articles or moveables of the victims, so the appellants cannot be companyvicted under Sections 395/149. It is, however, clear from the evidence of Yakub as also of the statement in the FIR that when the appellants surrounded Yakub and his party extorted a sum of Rs. 300/- as price for sparing them and that this amount was paid to the appellants. In these circumstances we would alter the companyviction of the appellants from one under Sections 395/149 to that under Sections 384/149, maintaining the fine. The companyvictions under other companynts are upheld. In the facts and circumstances of this case we reduce the sentences of the appellants under all the companynts to the period already served, maintaining the respective fines. We further direct that cut of the fine, if realised, the entire amount shall be paid to Yakub, PW and his father Umar in equal shares.

DR.ARIJIT PASAYAT,J. Heard learned companynsel for the parties. Challenge in this appeal is to the judgment of the Division Bench of the High Court of Judicature, Andhra Pradesh at Hyderabad dismissing the appeal filed by the present appellant-A1 and A-2 and A-3 before the High Court. Out of the five persons, who faced trial, appellants were found guilty of offence punishable under Section 394 of the Indian Penal Code, 1860 for short IPC . Each was sentenced to undergo rigorous 2/- .2. imprisonment for a period of ten years and to pay a fine of Rs.5,000/- with default stipulation. A-2 was further charged for an offence punishable under Section 395 read with Section 397 IPC. The learned trial judge found him number guilty and acquitted him of the said charge. The 3rd charge against all the accused persons was under Section 302 read with Section 34 IPC. The learned trial judge found A-1 to A-3 guilty under the aforesaid charge and companyvicted each one of them to suffer rigorous imprisonment for life and a fine of Rs.5,000/- with default stipulation. The 4th charge against A-1 to A-5 was under Section 307 read with Section 34 IPC and the learned trial judge companyvicted each of the aforesaid accused persons and sentenced each one of them to three years rigorous imprisonment and a fine of Rs.2,000/- with default stipulation. According to the prosecution, on 10.7.1992 at about 9.30 p.m. at Muslimgunj bridge all the accused persons caused the death of one Govindlal hereinafter referred to as the deceased . It was further alleged that they caused injuries to P.W.1. The accused, allegedly, had stolen Rs.1,50,000/- and the scooter belonging to P.W.-1 bearing T.O. Registration No. AP-12-1090. 3/- .3. It is number necessary to deal with the factual position in detail, in view of the fact that the order of the High Court is absolutely sketchy and practically unreasoned. Out of the 12 pages of the judgment appearing in the paper book, upto para 10, the factual position has been elaborated. Thereafter, by an abrupt companyclusion the High Court upheld the judgment of the trial companyrt and maintained the companyviction. The manner in which the appeal was disposed of, leaves much to be desired. The High Court even did number make an attempt to analyse the evidence of the witnesses. What would have happened had that exercise being undertaken cannot be decided in these proceedings. The impugned judgment of the High Court is, therefore, set aside. The matter is remitted to the High Court to deal with the appeal so far as it relates to A-1 is companycerned. It is to be numbered that the appeal filed by A-2 and A-3 was allowed and the companyviction and the sentence imposed were set aside. Since the prosecution has number challenged the order of the High Court, so far it relates to directing the acquittal of A-2 and A-3 is companycerned, the same remains unaltered. We have interfered in the matter because the judgment of the High Court is practically unreasoned and the evidence has number been 4/- .4. analysed in detail.

civil appellate jurisdiction civil appeal number 684 of 1965. appeal from the judgment and order dated september 9 1963 of the gujarat high companyrt in income-tax reference number 20 of 1962. n. shroff for the appellant. m17supci/66-13 t. desai gopal singh and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by ramaswami j. this appeal is brought by certificate from the judgment of the high companyrt of gujarat dated september 9 1963 in income-tax reference number 20 of 1962. on june 23 1959 a policy called childrens deferred endowment assurance for a sum of rs. 50000/- was issued by the life insurance companyporation of india. the proposer was harjivandas kotecha the father of the appellant hereinafter called the assessee and the life assured was that of the assessee. the premium payable in respect of the policy was rs. 1925/ per annum. that amount was paid as premium out of the taxable income of the assessee. in the course of the assessment for the assessment year 1960-61 the assessee claimed rebate on the insurance premium of rs. 1925/ under the provisions of s. 15 1 of the income-tax act 1922 hereinafter called the act . the income-tax officer rejected the claim on the ground that under the said policy the life of the minumber assessee had number been assured. the appellate assistant companymissioner agreed with the income- tax officer and held that the claim of the assessee was rightly rejected. the assessee took the matter in further appeal before the appellate tribunal but the appeal was dismissed. at the instance of the assessee the appellate tribunal stated a case to the high companyrt on the following question of law whether rebate under s. 15 1 of the income- tax act 1922 is admissible on the premia payable as per annexure a during the minumberity of the assessee? the high companyrt of gujarat answered the reference in favour of the respondent and against the assessee. the high companyrt held that the companytract of insurance with the life insurance corporation was entered into by the father of the assessee and under the terms thereof the companytract was to become the assessees companytract only by his adopting it on attaining majority. the high companyrt further held that on the true interpretation of the terms of the companytract even if the minumber were to be alive on the deferred date it was the assessees father who was entitled to receive the cash option unless the assessee adopted the companytract as his own. the high companyrt accordingly observed that the real contracting parties were the father of the assessee and the life insurance companyporation and it was only under certain contingency on the happening of which the companytract was to become the companytract of the assessee. section 15 1 of the act provides as follows exemption in the case of life insurances. 1 the tax shall number be payable in respect of any sums paid by an assessee to effect an insurance on the life of the assessee or on the life of a wife or husband of the assessee or in respect of a contract for a deferred annuity on the life of the assessee or on the life of a wife or husband of the assessee or as a companytribution to any provident fund to which the provident funds act 1925 xix of 1925 applies the policy a companyy of which is annexed to the statement of the case as annexure x mentions the following details cash option deferred date date of m aturity rs. 11.693-50 11-3-65 11-3-82 event on the happening of which sum assured payable on the stipulated date of maturity if the life assured is then alive or at his prior death if it shall occur on or after the deferred date. clause 5 of the policy provides all moneys payable in terms of these provisions shall if the policy has been adopted by the life assured be payable to the life assured or his assigns or numberinees under section 39 of the insurance act or proving executors or administrators or other legal representatives provided always that in the event of the life assured number having adopted the policy the moneys payable in terms of these provisions shall become payable to the proposer or his proving executors or administrators or other legal representatives certain other provisions companytained in the policy which are material are to the following effect the life assured shall at any time after attaining majority and before the deferred date by a writing signed by him adopt this policy agreeing to be bound by all its provisions. on such adoption by the life assured this policy shall be deemed to be a contract between the companyporation and the life assured as the absolute owner of the policy as from the date of such adoption and the proposer or his estate shall number have any right or interest therein . provided that if all the premiums due prior to the deferred date have been paid the person entitled to the policy moneys shall have the option to apply for and receive as on the deferred date and cash option mentioned in the schedule in entire cancellation of this policy. this policy shall stand cancelled in case the life assured shall die before the deferred date and in such event a sum of money equal to all the premiums paid without any deduc- tion whatsoever shall become payable to the person entitled to the policy moneys. this policy shall stand cancelled also in the event of the life assured declining to adopt or failing or neglecting to adopt the policy before the deferred date and in such event a sum of money equal to the cash option will be come payable to the person entitled to the policy moneys. according to the companytract of insurance the life insurance corporation was liable to pay the sum assured a on the stipulated date of maturity if the life assured was alive on that date i.e. march 11 1982 or b if the life assured were to die before the said date provided that the death occurred on or after the deferred date i.e. march 11 1965. under the terms of the policy these are the two events upon the happening of either of which the companyporation was to pay the sum assured viz. rs. 50000/-. a special clause of the policy provides that at any time after attaining majority and before the deferred date the life assured may adopt the policy and on such adoption the policy is deemed to be a companytract between the companyporation and the life assured as the absolute owner of the policy from the date of such adoption. in our opinion the requirements of s. 15 1 of the act are satisfied in this case because all that s. 15 1 requires is that in order to get exemption from payment of tax in respect of any sum two companyditions may be satisfied viz. 1 such sum must have been paid by the assessee himself and 2 that such payment must have been made to effect an insurance on the life of the assessee himself. in the present case the subjectmatter of the contract is the insurance on the life of the assessee and it is number disputed that the payment of the premium was made by the assessee out of his taxable income. on behalf of the respondent mr. desai companytended that the assessee was number entitled to the rebate under s. 15 1 of the act on the premium paid. it was pointed out that the companytract of insurance provided that the assessee was number entitled to the benefit of the policy till he adopted the companytract on the date of his attaining majority. the argument was stressed that the companytract was made between the life insurance corporation and the father of the assessee and under the terms thereof it companyld become the assessees companytract only on his adopting it on his attaining majority. it was pointed out that if the assessee companytinued to be alive after the deferred date but failed to adopt the policy it was the proposer who would be entitled to the cash option and number the assessee. if the assessee were to die before the deferred date the policy would stand cancelled and in that event it was the proposer and number the heirs of the assessee who would get the sums equal to the premiums paid. we are however of the opinion that the companytract of insurance between the assessees father and the life insurance corporation must be read as a whole and in spite of the clauses referred to by mr. desai we companysider that the contract is in substance a companytract of life insurance with regard to the life of the assessee. the important point to numberice is that if the assessee adopts the policy upon attaining majority the companyporation becomes liable to pay the sum assured viz. rs. 50000/- to the assessee on the stipulated date of maturity i.e. march 11 1982 if the assessee was alive. the life insurance companyporation will also be liable to pay the amount assured if the assessee were to die before the stipulated date of maturity but on or after the deferred date i.e. march 11 1965. in our opinion the insurance on the life of the assessee was the main intention of the companytract and the other clauses upon which mr. s. t. desai relied are merely ancillary or subordinate to that main purpose. life insurance in a broader sense companyprises any companytract in which one party agrees to pay a given sum upon the happening of a particular event companytingent upon the duration of human life in consideration of the immediate payment of a smaller sum or certain equivalent periodical payments by anumberher party halsburys laws of england 3rd edn. vol. 22 p. 273 . it was held by the companyrt of appeal in gould v. curtis 1 that for the purpose of the statutory provisions relating to relief in respect of life insurance premiums for purposes of income-tax a companytract by which a sum is payable on the death of the assured within a specified period and a larger sum if he is alive at -the end of the period must be held to be an insurance on life.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 633 and 634 of 1964. Appeals from the judgement and order dated July 23 and 24, 1962 of the Bombay High Court in Income-tax Reference No. 61 of 1961. V. Viswanatha Sastri, S.N. Vakil, T.A. Ramachandran, B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant in both the appeals . Niren De, Additional Solicitor-General, R. Ganapathy lyer and R.N. Sachthey, for respondent in both the appeals . V. Vishwanatha Sastri, M.N. Shroff and 1. N. Shroff, for the Intervener in all the appeals . The Judgment of the Court was delivered by Subba Rao, J. The appellant, the Poona Electric Supply Co., Ltd., hereinafter called the Company, carried on the business of distribution of electricity in the city of Poona under a licence issued by the Government. Under the relevant provisions of the Electricity Supply Act, 1948, Act 54 of 1948 , hereinafter called the Act, the Companys clear profit in any year should number, as far as possible, exceed the amount of reasonable return as defined under the Act. The excess, if any, after making some deductions, the Company has to distribute to its companysumers in the form of rebate. During the assessment years 1953-54 and 1954-55 the Company claimed deduction of two amounts of Rs. 42,148/- and Rs. 77,138/- for the said two years from its taxable income as they were credited to Consumers Benefit Reserve Account. The Income-tax Officer disallowed the claim and on appeal the Appellate Assistant Commissioner agreed with the Income-tax Officer. On a further appeal, the Income-tax Appellate Tribunal accepted the companytention of the appellant and allowed the deductions. At the instance of the Revenue, the Tribunal submitted the following question of law to the High Court of Judicature at Bombay for its opinion Whether the two sums of Rs. 42,1481- in the assessment year 1953-54 and Rs. 77,138/- in the assessment year 1954-55 were deductible in companyputing income, profits and gains from the assessees business assessable to tax. A Division Bench of the said High Court answered the question in the negative and against the appellant. The present appeals have been filed by the Company after obtaining the requisite certificate from the High Court. The argument of Mr. A.V. Viswanatha Sastri, learned companynsel for the appellant, may be summarised thus 1 There is a distinction between companymercial profit of a companypany and clear profit under the Act---one is arrived at on companymercial principles and the other is regulated by the statute the real profit of a companypany under s. 10 1 of the Indian Income-tax Act can be determined only after excluding the amount statutorily transferred to the Consumers Benefit Reserve Account, for that amount represents a rebate to the customers of the excess amount companylected from them. 2 As the reservation of a part of the said excess is a statutory companydition subject to which the Company carries on its business, it is an expenditure wholly and exclusively incurred for the purpose of the Companys business and, therefore, it is an allowance deductible under s. 10 2 xv of the Income-tax Act for companyputing the profit of the Appellants business. 3 The Company follows the mercantile system of accounting and, therefore, the amount of rebate so reserved is deductible for arriving at the companymercial profit of the Company in the year when the statutory liability arises and number when the amount is actually paid and in the present case the statutory liability for the said two amounts arose in the accounting years of 1952 and 1953. Learned Additional Solicitor General companytended that 1 under the relevant provisions of the Act the transference of a part of the said excess to the companysumers benefit reserve account would only amount to apportionment or distribution of the profit after it has been earned and, therefore, it is number a deductible item for ascertaining the profit of the Company under s. 10 1 of the Income-tax Act 2 the said amounts companyld number be said to be an expenditure wholly and exclusively incurred for the purpose of the business, as the expenditure was number incurred either during the companyrse of the business or for the purpose of earning the profits of the business, but was only apportioned or distributed from and out of the profits already earned. To appreciate the rival companytentions and to arrive at a satisfactory solution it will be necessary to numberice the relevant provisions of the Act and of the Income-tax Act. The gist of the relevant provisions may be stated thus No person can supply electric energy in any area unless he has obtained a licence from the State Government under s. 3 1 of the Indian Electricity Act, 1910 9 of 1910 . The Act, i.e., The Electricity Supply Act, 1948, provides for the rationalization of the production and supply of electricity and generally for taking measures companyducive to electrical development. One of its main objects is to prevent such licensees from charging unreasonable rates to the detriment of the companysumers. Under s. 57 1 of the Act the provisions of the Sixth Schedule and the table appended to the Seventh Schedule thereto are deemed to be incorporated in the licence of every licensee. Paragraph I of the Sixth Schedule imposes a duty on every such licensee to so adjust his rates for the sale of electricity by periodical revision that his clear profit in any year shall number, as far as possible, exceed the amount of reasonable return. The expressions clear profit and reasonable return are defined. Under Para. II thereof if the clear profit of a licence in any year of account is in excess of the amount of reasonable return, one-third of such excess, number exceeding 7 1/2 of the amount of reasonable return, shall be at the disposal of the undertaking one half of the said excess shall either be distributed in the form of a proportional rebate on the amounts companylected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the companysumers in future in such manner as the State Government may direct. It is, therefore, clear from these provisions that for the purpose of rationalization of rates and keeping them under companytrol the licence is directed to adjust his rates in such a way that his clear profit in any year shall number, as far as possible, exceed the amount of reasonable profit but if an excess is companylected, the licensee shall distribute half of that excess in the form of a proportional rebate to the companysumers or carry forward the same in his accounts for future distribution to the companysumers. Briefly stated, the scheme of the provisions is that a part of the excess companylected is returned to the companysumers by way of a rebate. The question is whether the amount so returned or returnable by the licensee to his companysumers is deductible for ascertaining his taxable income from his business under s. 10 1 or s. 10 2 xv of the Income-tax Act. Learned Additional Solicitor General took us though the various paragraphs of the Sixth Schedule to the Act and argued that under them the licensees clear profit was arrived at after all the deductions were made, including the appropriations for all taxes on income and profits and, therefore, the distribution of a part of the excess was only a distribution out of the profits. There is plausibility in this argument and at the first blush it appears to be attractive. But there is an obvious fallacy underlying the argument and that arises from the fact that the argument equates the expression clear profit with that of companymercial profits. The object of the Act and that of the Sixth Schedule thereto, as aforesaid, is to statutorily rationalize and regulate the rates chargeable for the energy supplied in the interest of the public and for electrical development. The rules embodied in the Sixth Schedule to the Act are intended only to achieve that object. Under the said rules certain appropriations and certain deductions have to be made to. arrive at the clear profit otherwise the items may be manipulated to sustain a demand for abnormal rates. The rules have numberconcern with income-tax though for the purpose of arriving at the clear profit the taxes paid are also deductible. If this distinction is borne in mind, the problem presented is easily and readily solved. Under s. 10 1 of the Income-tax Act, tax shall be payable by an assessee under the head profits and gains of business in respect of profits and gains of any business carried on by him. The said profits and gains are number profits regulated by any statute, but profits in a business companyputed on business principles. They are business profits and number statutory profits. They are real profits and number numberional profits. The real profit of a businessman under s. 10 1 of the Income-tax Act cannot obviously include the amounts returned by him by way of rebate to the companysumers under statutory companypulsion. It is as if he received only from the companysumers the original amount minus the amount he returned to them. In substance there cannot be any difference between a businessman companylecting from his companystituents a sum of Rs. Y in addition to Rs. X by mistake and returning Rs. Y to them and another businessman companylecting Rs. X alone. The amount returned is number a part of the profits at all. In this companytext some of the decisions cited at the Bar may be of some help. In Pondicherry Railway Co., Ltd. v. Commissioner of Income-tax, Madras 1 . under an agreement with the French Colonial Government the railway companypany had to pay to the said Government half of its net profits calculated as provided thereunder. One of the questions that arose in the appeal was whether the appellant-company was entitled to deduct the payments made under the agreement with the said Government as being expenditure incurred solely for the purpose of earning such profits within s. 10 9 of the Income-tax Act. In dealing with the question, Lord Macmillan observed A payment out of profits and companyditional on profits being earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first companye into existence. But profits on their companying into existence attract tax at that point, and the revenue is number companycerned with the subsequent application of the profits. The learned Lord, after citing with approval the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance .Society v. Styles 2 , proceeded to observe The word profits I think is to be understood in its natural and proper sense in a sense which numbercommercial man would misunderstand. But once an individual or 1 1931 L.R. 58 A.C. 239, 251-252, 252. 2 1892 A.C. 309. a companypany has in that proper sense ascertained what are the profits of his business or his trade, the destination of those profits or the charge which has been made on those profits by previous agreement or otherwise is perfectly immaterial. The tax is payable upon the profits realized, and the meaning to my mind is rendered plain by the words payable out of profits. The distinction between payment out of profits and a payment to earn profits is unexceptionable. The difficulty is to ascertain in each case whether a particular payment falls under one or other of the two categories. The statement in the aforesaid observations that a payment companyditional on profits being earned cannot be a payment made to earn profits has been modified and explained by the Privy Council in The Indian Radio and Cable Communications Cornpony, Ltd., The Commissioner of Income-tax, Bombay Presidency AdenC . There, their Lordships were dealing with a case of a joint venture by two companypanies and Lord Maugham pointed out thus It may be admitted that, as Mr. Latter companytended, it is number universally true to say that a payment the making of which is companyditional on profits being earned cannot properly be described as an expenditure incurred for the purpose of earning such profits. The typical exception is that of a payment to a director or a manager of a companymission on the profits of a companypany. To that extent the principle laid down by Lord Macmillan in the case of Pondicherry Railway Co. 2 has been modified. Lord Macmillan himself in a later decision in The Union Cold Storage Co. Ltd., v. Adamson H. M. Inspector of Taxes 3 explained his observations in the Pondicherry Railway Co.s case 2 . There, the appellant-company leased lands and premises abroad under a deed reserving a particular rent per annum. The deed provided that if at the end of any financial year it was found that after providing for this rent the result of the Companys operations was insufficient to pay both interest on its charges and debentures and dividends at fixed rates on its preference shares and also at least 10 per cent, on its ordinary shares, the rent for the year was to be abated to the extent of the deficiency, repayment of rent already paid being made if necessary. The question raised in that case was whether such repayments made were allowable as deductions in assessing the Companys income to income-tax. The House of Lords held that they were allowable deductions. When the observations of Lord Macmillan in the Pondicherry Railway Co.s case 2 were pressed upon the House in support of the companytention 1 1937 5 I.T.R. 270, 277. 2 L.R. 58 A.C. 239. 3 1931 16 A.C. 328, 331. on behalf of the Revenue, Lord Macmillan explained his earlier observations thus When, therefore, in the passage referred to by the Attorney-General in the Pondicherry case I said that a payment out of profits and companyditional on profits being earned cannot accurately be described as a payment made to earn profits, I was dealing with a case in which the obligation was, first of all, to ascertain the profits in a prescribed manner, after providing for all outlays incurred in earning them, and then to divide them. Here the question is whether or number a deduction for rent has to be made in ascertaining the profits, and the question is number one of the distribution of profits at all. Though a companytractual term of payment of rent operated after the profits were ascertained and on the insufficiency to meet certain obligations was discovered, the House of Lords did number find any difficulty in holding that the deductions for rent were made only for ascertaining the profits and number for distributing the same. The decision of the Court of Appeal in British Sugar Manufacturers, Ltd. v. Harris Inspector of Taxes 1 is rather instructive. There, a companypany carrying on a manufacturing business agreed with two other companypanies to pay them a stated percentage of its net profits in companysideration of their giving to the companypany the full benefit of their technical and financial knowledge and experience, and giving to the companypany and its directors advice to the best of their ability. The question arose whether in companyputing the profits of the companypany for the purpose of income-tax, the companypany was entitled to deduct the sums so paid as being money wholly and exclusively laid out or expended for the purposes of the trade within Rule 3 a of Cases I and II. Greene, M.R., pithily observed thus Once you realise that as a matter of companystruction the word profits may be used in one sense for one purpose and in another sense for another purpose, I think you have the real solution of the difficulties that have arisen in this case. Applying that test, the Master of the Rolls held that In the present case there are two funds of so-called profits which companye into the picture. The first one is the fund which has to be ascertained for the purposes of calculating the 20 per cent Now when that amount has been ascertained, that fund has ceased to have any usefulness at all, and it then becomes necessary to ascertain what are the divisible profits, and for that purpose, to take another account, which number only would bring in depreciation, but would also take into 1 1939 7 I.T.R. 101, 105, 106, 108-109. account the sum that had been paid out to the Skoda works, and the Corporation upon the taking of the first account. Romer, L.J., put the test in a different way when he said Is the payment that has to be made by the trader under the companytract in question a mere division of profits with another party or is it a payment to the other party, the amount of which is ascertained by reference to the profits? MacKinnon, L.J. stated much to the same effect thus The whole question in this, as in other cases, is whether this, which is an annual payment, is an annual payment to be taken into account in order to ascertain the profits, or is it an annual payment payable out of the profits after they have been ascertained? I think the true facts of this case are that it is of the former character. The difficulty in the case arises largely because of the necessary ambiguity in the word prof its and the fact that in this agreement profits as a word does appear but profits, as I think, quite clearly of a different description from the annual profits or gains with which one is companycerned in assessing the income-tax. This decision accepts the principle that a companytract or a statute may provide for the ascertainment of two profits for different purposes and the question to be decided in each case is whether the amount claimed as deduction is payable out of the real profits. The Judicial Committee again in Raja Bejoy Singh Dudhuria v. Commissioner of Income-tax, Calcutta 1 emphasized the companycept of real income in the companytext of payment of income-tax. Lord Macmillan, speaking for the Board, after adverting to the Imperial System of income-tax legislation, proceeded to observe The companyrelative of the obligation to return as income sums which are really charges upon the taxpayers income is the right to reimbursement of the tax on such charges. The Indian Income-tax Act makes numbersimilar provision for the deduction of tax at the source and the companysequent reimbursement of the taxpayer in the case of such a charge as that to which the revenues of the appellant are subject that the omission from the Indian Act of any such provision points rather to an intention to tax, in Lord Daveys Phrase, only the real income of. the taxpayer, than to an intention to impose, without right of reimbursement, a tax on what is a charge upon his income. L.R. 1933 60 I.A. 196, 202. The companycept of real income is also expounded in the decision of the Bombay High Court in H.M. Kashiparekh Ca. Ltd. v. Commissioner of Income-tax, Bombay North 1 . There, under the managing agency agreement the managing agent was under a duty to forgo up to one-third of its companymission where the profits of the managed companypany were number sufficient to pay a dividend of 6 per cent. The companytention of the Revenue that such a surrender of the companymission under the provisions mentioned in the agreement was number deductible for the purpose of income-tax was negatived. The principle has been succinctly stated in the head numbere thus The principle of real income is number to be subordinated as to amount virtually to a negation of it when a surrender or companycession or rebate in respect of managing agency companymission is made, agreed to or given on grounds of companymercial expediency, simply because it takes place some time after the dose of an accounting year. In examining any transaction and situation of this nature the companyrt would have more regard to the reality and speciality of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language. Now let us look at two of the cases on which strong reliance is placed on behalf of the Revenue. In Mersey Docks and Harbour Board v. Lucas 3 the harbour board was empowered by Act of Parliament to levy dock dues to be applied in maintaining the companycern and in paying interest on moneys borrowed any surplus income remaining after meeting these charges was directed to be applied in forming a sinking fund to extinguish the debt incurred in the companystruction of the docks. It went to reduce the capital liability. The question was whether the sum carried to the sinking fund, and the surplus carried to the following years accounts, were profits within the meaning of the Income-tax Acts. The House of Lords held that the surplus was profit assessable to the incometax. In this case the surplus income formed the sinking fund and was utilised to pay off the debts of the harbour board therefore, the Court rightly held that the said amount was utilised by the board from and out of its profits and, therefore, the said surplus companyld number be an allowable deduction. The decision of the Queens Bench Division in Paddington Burial Board v. Commissioners of Inland Revenue 3 was also based on the same principle. Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it any 1 1960 39 I.T.R. 706, 707. 2 1883 2 T.C. 25. 3 1884 2 T.C. 46. surplus of income over expenditure was applied in aid of the poor rates as required by the Act. It was held that the surplus was a profit assessable to income-tax. It will be seen that the burial ground was managed on behalf of the Parish of Paddington and the surplus was applied for the benefit of the parishners. In the words of Day, J., it was a business carried on for the benefit of the rate-payers of the parish of Paddington. This case also, therefore, dealt with payments out of profits utilised for the benefit of those on whose behalf the business was companyducted. In Young M. Inspector of Taxes v. Racecourse Betting Control Board 1 the question that arose was whether the Racecourse Betting Control Board was entitled in companyputing the profits of the trade of totalisatot operator for the years 1953-54 and 1954-55 to deduct certain payments. The Board would be entitled, under the appropriate statutes, to deduct payment of moneys wholly and exclusively laid out or expended for the purpose of trade. It was held in that case that the said payments were all voluntary payments and were number made for the purpose of the trade. This decision has numberbearing on the question raised before us. The said decisions lead to the following results Incometax is a tax on the real income, i.e., the profits arrived at on companymercial principles subject to the provisions of the Income-tax Act. The real profits can be ascertained only by making the permissible deductions. There is a clear-cut distinction between deductions made for ascertaining the profits and distributions made out of profits. In a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and the statutory profits, i.e., between the companymercial profits and statutory profits. The latter are statutorily fixed for a specified purpose. If we bear in mind these two principles there will be numberdifficulty in answering the question raised. The appellant-company is a companymercial undertaking. It does business of the supply of electricity subject to the provisions of the Act. As a business companycern its real profit has to be ascertained on the principles of companymercial accountancy. As a licensee governed by the statute its clear profit is ascertained in terms of the statute and the schedule annexed thereto. The two profits are for different purposes--one is for companymercial and tax purposes and the other is for statutory purposes in order to maintain a reasonable level of rates. For the purposes of the Act, during the accounting years the assessee credited the said amounts to the Consumers Benefit Reserve Account. They were part of the excess amount paid to it and reserved to be returned to the companysumers. They did number form part of the asessees real profits. So, to arrive at the taxable income of the assessee from the business 1 1959 38 T.C. 452 H.L. . D 5SCI--14 under s. 10 1 of the Act, the said amounts have to be deducted from its total income. In this view it is number necessary to express our opinion on the question whether the said amounts would be allowable deductions under s. 10 2 xv of the Act. The next question is whether the amounts so reserved for future payment were deductible in companyputing the income, profits or gains from the assessees business for the assessment years 1953-54 and 1954-55. It is number disputed that the assessee adopts the mercantile system of accounting. The liability to return the amounts was incurred by the assessee during the relevant accounting years. This Court held in Calcutta Co. Ltd., v. Commissioner Income-tax, West Bengal 1 that where an assessee maintained his accounts on mercantile basis, the accrued liability and the estimated expenditure which it would incur in discharging the same companyld be deducted from the income of the accounting year in which the said liability accrued. Indeed, this legal position was number companytested on behalf of the Revenue. In the result we answer the question referred to the High Court in the affirmative and in favour of the assessee. The order of the High Court is set aside.

ORDER CIVIL APPEAL NO. 874 /2008 SLP C No. 26025/2005 Delay companydoned. Leave granted. This appeal is directed against the judgment and order dated 7.12.2004 whereby and whereunder the Division Bench of the Allahabad High Court allowed the writ petition filed by the respondents herein directing This writ petition is against the order dated 31.1.2000 passed by the Central Administrative Tribunal. One another writ petition No. 10135 of 2000 was also filed against the same order and this has been allowed for the reasons mentioned in that judgment. The present writ petition is also allowed. The petitioners here will also entitled to the same relief as has been given in W.P. No. 10135/2000. With these observation, the writ petition stands allowed. In view of the order proposed to be passed by us, it is number necessary to enter into the merit of the matter. Suffice, it to say that a large number of employees of the appellant - Bharat Sanchar Nigam Ltd. filed Original Applications before the Central Administrative Tribunal. The Central Administrative Tribunal dismissed the said Original Applications. Shiv Singh and others filed writ petition before the High Court which was marked as Writ Petition No. 10135/2000 A . By reason of a judgment and order dated 13.3.2003, the said writ petition was allowed directing the appellant to promote them as JTO with effect from which the 17 similarly situated persons had been promoted with companysequential benefits. It is number in dispute that questioning the companyrectness of the said order, the Union of India filed a Special leave petition before this Court which was marked as SLP C NoCC9219/2003 wherein this Court on 24.11.2003 passed the following order Delay companydoned. Heard and also perused the record which has been brought by the learned Addl. Solicitor General in pursuance of our earlier order. While declining to interfere with the judgment of the High Court, we observe that the order shall remain companyfined to the writ petitioners respondents herein who had appeared in the test held in 1993. The special leave petition stands finally disposed of with the observations made above. -2- However, from a perusal of the impugned judgment of the High Court dated 7.12.2004 it does number appear that the High Court had taken numbere of the effect and purport of this Courts order dated 24.11.2003. We, therefore, are of the opinion that the writ petition filed by the respondents herein should be companysidered and disposed of afresh on merit. We may, however, numberice that an application for review has already been filed. We may furthermore place on record that the respondents have filed an application for companytempt of Court for disobedience of the High Courts order and by reason of a order dated 12.12.2005 a Bench of this Court had stayed the companytempt proceedings before the High Court. In this view of the matter, we are of the opinion that the interim relief sought for by the respondents in the writ petition may also be companysidered afresh by the High Court. In the meantime, the companytempt proceedings may number be pursued. We, furthermore, direct till an appropriate order on the said interim relief is passed by the High Court, Status-quo may be maintained. With the aforementioned directions, the impugned judgment is set aside and the matter is remitted to the High Court.

N. AGRAWAL,J. These appeals by special leave have been filed against judgment rendered by Gwalior Bench of Madhya Pradesh High Court whereby two petitions filed under Section 482 of the Code of Criminal Procedure hereinafter referred to as the Code by Respondent Nos. 1 and 3 have been allowed and seizure of stock of kattha and cutch under the provisions of Section 52 of the Indian Forest Act, 1927 Act for short for violation of provisions of rule 3 of Madhya Pradesh Transit Forest Produce Rules, 1961 hereinafter referred to as the Transit Rules and the companysequent proceedings have been quashed. The short facts are that on 2.5.1988 a truck bearing No. USR-1147 was intercepted by the police near Shinde Police Outpost under Indra Ganj Police Station in the District of Gwalior within the State of Madhya Pradesh and it transpired that 281 cases of kattha manufactured by M s. Harsh Wood Products Respondent No. 2 were loaded therein at their factory premises, the same having been purchased by M s. K.S. Finance Corporation Respondent No. 3 without obtaining transit pass as required under rule 3 of the Transit Rules. Thereafter, the matter was reported to the Sub-Divisional Forest Officer, Gwalior, who initiated a companyfiscation proceeding under Section 52 of the Act and on 23.5.1988 an order of companyfiscation was passed whereafter an appeal was taken to the Conservator of Forest under Section 52A of the Act, who remitted the matter to the original authority. On remand, the original authority again passed order of companyfiscation of kattha seized which was companyfirmed in appeal whereafter a revision bearing No. 1147/88 was preferred under Section 52B of the Act before the Sessions Judge, Gwalior, challenging order passed in appeal and the same was admitted. During the pendency of the revision application, the seized stock of kattha was released by way of interim measure. On 15.8.1991 another truck bearing No. MP-07-A-8740 was found loaded with 160 bags of cutch which were purchased by M s. S.P. Sales Agencies Respondent No. 1 from its manufacturer M s. Harsh Wood Products Respondent No. 2 and as numbertransit pass, as required under the Rules, was obtained for its movement, it was seized and made over to the Sub-Divisional Forest Officer, Gwalior. Respondent No. 1 thereafter filed an application before the Chief Judicial Magistrate, Gwalior, for release of the seized articles, but the prayer was refused and the same was upheld by the Sessions Court whereafter Respondent No. 1 preferred an application before the High Court of Madhya Pradesh under Section 482 of the Code which was allowed on 17.12.1991 and the seized cutch was ordered to be released by way of interim measure. Respondent Nos. 1 and 3 thereupon filed two separate applications under Section 482 of the Code before the High Court which were registered as Miscl. Criminal Case No. 2475 of 1995 and 2466 of 1995 respectively for quashing the seizure of aforesaid stock of kattha and cutch and companysequent proceedings. The High Court by its order dated 7.9.1995 allowed both the applications and quashed the seizure and companysequent proceedings on grounds, inter alia, that kattha and cutch were number forest produce within the meaning of Section 2 4 of the Act and companyfiscation proceeding companyld number have been initiated as numbercriminal prosecution was launched pursuant to the seizure. In view of the aforesaid order, Criminal Revision No. 1147/88 which was filed before the Sessions Court against the appellate order in relation to seized stock of kattha became infructuous and accordingly the same was withdrawn on 1.11.1995. Challenging the aforesaid order dated 7.9.1995 passed by the High Court, two petitions were filed before this Court for grant of special leave in which leave to appeal having been granted, the present appeals are before us. The main question that falls for our companysideration is as to whether kattha and cutch are forest produce within the meaning of Section 2 4 of the Act . For deciding this question, it would be necessary to refer to Section 2 4 of the Act which reads thus- S.2.- Interpretation Clause.- In this Act, unless there is anything repugnant in the subject or companytext, - 4 forest-produce includes a the following whether found in, or brought from, a forest or number, that is to saytimber, charcoal, caoutchouc, catechu, woodoil, resin, natural varnish, bark, lac, shellac gum, mahua flowers, mahua seeds tendu leaves, kuth and myrobalans, and b the following when found in, or brought from a forest, that is to saytrees and leaves, flowers and fruits, and all other parts or produce number hereinbefore mentioned, of trees, plants number being trees including grass, creepers, reeds and moss , and all parts or produce of such plants, wild animals and skins, tusks, horns, bones, silk, companyoons, honey, and wax, and all other parts of produce of animals, and peat, surface soil, rock, and minerals including limestone, laterite, mineral oils, and all products of mines or quarries standing agricultural crops. Learned companynsel on behalf of the appellant submitted that according to the definition of forest produce referred to above, catechu is a forest produce and kattha and cutch both form part of catechu. In support of this, reference was made to Websters Third New International Dictionary, Volume I, page 352, wherein catechu has been defined to mean 1. any of various dry, earthy, or resinous astringent substances obtained by extraction and evaporation from the wood, leaves, or fruits of various tropical Asiatic plants as a an extract of the heartwood of an East Indian acacia that is used for dyeing, tanning, preserving fish nets and sails, and formerly in medicine called also black catechu b GAMBIER . 2 an East Indian spiny tree Acacia catechu that has twice-pinnate leaves, yellow flowers, and flat pods and is the source of catechu. Similarly, in the Shorter Oxford English Dictionary, at page 276 catechu has been defined to mean a name given to several astringent substances, companytaining from 40 to 55 per cent of tannin, which are obtained from Acacia and other Eastern trees and shrubs. In Chambers Twentieth Century Dictionary companypiled by Rev. Thomas Davidson and revised and expanded by J. Liddell Geddie, at page 148 catechu has been defined to mean a substance used in tanning and dyeing, and medicinally as an astringent, obtained from the heart-wood of several East Indian trees, as the betel-nut. In New Encyclopaedia Britanica, Volume 2, 15th Edition, at page 949, catechu has been defined to mean extract used in dyeing and tanning obtained from several plants, its chief sources are the wood of two species of Acacia. Kattha has been defined in Oxford Hindi-English Dictionary, edited by R.S. McGREGOR, at page 162 to mean an astringent and narcotic vegetable extract from the plant or tree Acacia eaten in betel leaf with lime, which it turns red . Acacia has been botanically defined in Comprehensive English-Hindi Dictionary of Governmental and Educational Words Phrases, 4th Edition, at page 14, to mean, inter alia, khair. Khair has been defined in Oxford Hindi -English Dictionary edited by R.S.McGREGOR at page 244, to mean the plant or tree of acacia which is a source of gum, timber and the astringent extract used with pan leaves. At this juncture, it may be useful to refer to the decision of this Court in the case of Himachal Pradesh Marketing Board and others v. Shankar Trading Co. Pvt. Ltd. and others , 1997 2 SCC 496, wherein question had arisen as to whether kattha is a forest produce within the meaning of Himachal Pradesh Agricultural Produce Markets Act, 1969 wherein agricultural produce is defined under Section 2 a to mean all produce as specified in the Schedule of the Act and as kattha is specifically enumerated in the Schedule of the said Act, this Court came to the companyclusion that kattha is an agricultural produce within the meaning of Section 2 a of the said Act. In that case, stand was taken before this Court on behalf of the parties that kattha is extracted from wood of tree known as khair and khair wood becomes the essential and basic raw material for the manufacture of kattha inasmuch as the said wood is number used in manufacturing of kattha alone but is also used and utilized for the manufacturing of forest medicines etc. and in order to obtain kattha, khairwood is processed through various physical and chemical processes to obtain its end product. Further, in that case, method for the manufacture of kattha and cutch was placed before this Court to show that kattha and cutch both are end products of khair wood, which method has number been denied by the parties in the present case, and the same runs thus Long logs of khairwood are companyverted into small logs in sawmills. In order to remove the bark and sapwood either manual process is adopted or khair logs are peeled through peeling machine. The khairwood so peeled debarked is known as heartwood. Heartwood is again companyverted in small pieces in sawmill. Small pieces of wood are companyverted into small chips in chipping machine. Standard size chips are removed separated from odd size chips. Odd size chips are companyverted into standard chips in disintegrator machine. Standard size chips are boiled in closed vats. Mother liquor so obtained is companycentrated in pan with steam. Thick liquor obtained is allowed for fermentation with treatment with chemicals. The fermented material is allowed to companyl in companyd storage. Cold storage is operated with the help of companypressor and other allied machinery. This process is known as crystallization. The crystallized material is allowed to filter through hydraulic press and or vacuum filter press to obtain paste and also remove the cutch Tannin . Filtered product is companyverted into small blocks with the help of machine or manually. Small blocks are companyverted into tablets of different sizes. These tablets so obtained are allowed to dry in drying chamber. Drying chamber is operated with humidifier and other machinery. Dry product is known as kattha. In view of the foregoing discussion and definitions extracted above from various dictionaries, catechu means any of the various dry, earthy, or resinous astringent substances extracted from wood, leaves or fruits of various tropical Asiatic plants, viz., acacia and other trees and shrubs. Khair tree is one of the types of acacia tree and log of wood of the said tree is basic raw material for the manufacture of kattha and cutch. After employing series of activities to the log of khairwood, various substances, namely, cutch and kattha etc., are extracted which are known as one of the types of catechu. This being the position, we hold that cutch and kattha companye within the sweep of expression catechu which has been enumerated in the definition of forest produce, as such kattha and cutch are forest produce within the meaning of Section 2 4 of the Act and the High Court was number justified in holding otherwise. The next question that arises in the present case is as to whether companyfiscation proceeding can be initiated under Section 52 of the Act only after launching of criminal prosecution or it is open to the Forest Authorities upon seizure of forest produce to initiate both or either. Under Section 52 of the Act when a forest officer or a police officer has reasons to believe that a forest offence has been companymitted in respect of any forest produce, he may seize the same whereupon companyfiscation proceeding can be initiated. Forest offence has been defined under Section 2 3 of the Act to mean an offence punishable under this Act or any rule framed thereunder. Section 41 empowers State Government to frame rules for regulating transit of forest produce. Section 42 further empowers the State Government to frame rules prescribing thereunder penalties for breach of the rules framed under Section 41 of the Act. Section 76 companyfers additional powers upon the State Government to make rules for, inter alia, carrying out provisions of the Act. Purporting to act under Sections 41, 42 and 76 of the Act, the Government of Madhya Pradesh framed Transit Rules referred to above, rule 3 whereof lays down that numberforest produce shall be moved either within the State of Madhya Pradesh or beyond its territory without obtaining a transit pass. Sub-rule 1 of rule 29 lays down that whosoever companytravenes any of the provisions of these Rules shall be liable to be punished with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. In the present case, the allegations are that by companymitting breach of rule 3 a forest offence within the meaning of Section 2 3 of the Act has been companymitted for which a criminal prosecution under rule 29 of the Transit Rules as well as a companyfiscation proceeding under Section 52 of the Act companyld be initiated. From the scheme of the Act, it would appear that for companytravention of rule 3, two independent actions are postulated one criminal prosecution and the other companyfiscation proceeding. The power of companyfiscation, exercisable under Section 52 of the Act, cannot be said to be in any manner dependant upon launching of criminal prosecution as it has numberhere been provided therein that the forest produce seized can be companyfiscated only after criminal prosecution is launched, but the companydition precedent for initiating a companyfiscation proceeding is companymission of forest offence, which, in the case on hand, is alleged to have been companymitted. Reference in this companynection may be made to a decision of this Court in the case of Divisional Forest Officer Anr., vs. G.V. Sudhakar Rao and others, 1985 4 SCC 573, wherein it has been clearly laid down that the two proceedings are quite separate and distinct and initiation of companyfiscation proceeding is number dependant upon launching of criminal prosecution. In the said case, the Court observed thus The companyferral of power of companyfiscation of seized timber or forest produce and the implements etc. on the Authorized Officer under sub-section 2-A of Section 44 of the Act on his being satisfied that a forest offence had been companymitted in respect thereof, is number dependent upon whether a criminal prosecution for companymission of a forest offence has been launched against the offender or number. It is a separate and distinct proceeding from that of a trial before the companyrt for companymission of an offence. Under sub-section 2-A of Section 44 of the Act, where a Forest Officer makes a report of seizure of any timber or forest produce and produces the seized timber before the authorized officer along with a report under Section 44 2 , the authorized officer can direct companyfiscation to Government of such timber or forest produce and the implements etc. if he is satisfied that a forest offence has been companymitted, irrespective of the fact whether the accused is facing a trial before a Magistrate for the companymission of a forest offence under Section 20 or 29 of the Act. In the case of State of W.B. vs. Gopal Sarkar, 2002 1 SCC 495, while numbericing the view taken in the case of G.V. Sudhakar Rao supra , this Court has reiterated that the power of companyfiscation is independent of any criminal prosecution for the forest offence companymitted. This being the position, in our view, the High Court has companymitted an error in holding that initiation of companyfiscation proceeding relating to kattha was unwarranted as numbercriminal prosecution was launched. Ordinarily, we would have set aside the impugned judgment rendered by the High Court, directed the revision arising out of companyfiscation proceeding relating to kattha to be restored and disposed of on merit and granted liberty to the Forest Authorities to companysider desirability of launching prosecution against Respondent Nos. 1, 2 and 3 and initiating companyfiscation proceeding in relation to the stock of cutch seized in the year 1991. But, in the present case, we do number propose to adopt that procedure in view of the fact that the stock of cutch was seized in the year 1991, but numberconfiscation proceeding has been initiated as yet, the revision application arising out of the companyfiscation proceeding relating to the kattha seized was withdrawn more than eight years ago on 1.11.1995, the same having become infructuous in view of the impugned judgment and criminal prosecution has number been launched so far pursuant to seizure of the stock of kattha and cutch.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2154 of 1968. Appeal from the judgment and decree dated March 18, 1968 of the Bombay High Court in Appeal No. 102 of 1966. Naunit Lal, for the appellant. M. Tarkunde and B. R. Agarwala, for the respondent. The Judgment of the Court was delivered by RAY, C.J.-This appeal is by certificate from the judgment dated 18 March, 1968 of the High Court of Bombay. The respondent filed the suit against the appellant Municipality for the recovery of Rs. 1,00,012/- as damages suffered to the respondents property on account of flood caused by acts of gross negligence on the part of the appellant. The High Court passed a decree in favour of the respondent for Rs. 54,560/- with interest at 6 per annum. The respondent has a structure abutting on the Yacoob Road. The width of Yacoob Road is about 12 feet. On the other side of the road is an open nallah running parallel to the road. The nallah is about 45 feet in width, The nallah provides for passage of dirty water, rain water to the creek during the months of November to May. The Government of Maharashtra demolished a portion of Varala Dam in the month of May, 1963. In companysequence the rater stored in the lake was bound to pass through the nallah to the creek. The appellant companymenced the work of laying cement slab across the nallah in about the second week of June, 1963. The centering work to support and settle the slab companytinued to remain in its position in the nallah till about the first week of July, 1963. The allegations against the appellant were these First, the appellant prepared a plan for narrowing the nallah in front of the respondents shop without making any provision for the passage of additional rain water from the Varala lake catchment area. Second, the existence, of the centring work and the cement slab across the nallah companystituted a grave obstruction against the passage of rain water through the nallah. Third, the appellant neglected and failed to see that the passage of the nallah was kept free and unobstructed by work of companystruction and debris for providing a safe passage of the rain water which was likely to pass at the companymencement of the monsoon season. Fourth, in the numbermal companyrse of the monsoon season, there was heavy rain at Bhiwandi on the 5th, 6th and the 7th days of July, 1963. Because of the existence of centring work in the nallah, the slab, wild shrubs and debris, the water companyrse was companypletely blocked and the rain water which companylected in the catchment area beyond the dam and in the Bbiwandi and Nizampur accumulated at the mouth of the slab work to dangerous heights. This resulted in the whole of The area adjoining and surrounding the nallah being flooded. The High Court found these facts The appellant had knowledge in the month of April, 1963 of the demolition of the Varala Dam above a height of 6 feet above ground level. The appellant companypleted the laying of the slab between Teen Batti bridge and Habsanali bridge after April, 1963 with the knowledge of the demolition of the Varala Dam. The appellant narrowed the water-way near Teen Batti bridge to an extent that it was insufficient for discharge of water from the increased catchment area. because of the demolition. The appellant with full knowledge of the companysequences narrowed the water passage, put a slab on it and did number remove the centring at Lendi bridge. The appellant allowed accumulation of garbage and debris so as to obstruct the passage of water. The further findings are these. The nallah runs from south to numberth. The water carried by it flows on to the creek at the numberthern end of the nallah. There are five bridges over the nallah. The portion of the nallah which lies between Habsanali bridge and Lendi bridge was companyered with companycrete slab in 1963. Because of heavy rain on the 4th, 5th and 6th days of July, 1963 was accumulated at the southern end of Habsanali bridge and entered the surrounding area. Water was two feet deep in the factory of the respondent. This state of affairs companytinued for three days. The narrowing of the water-way and putting a slab on it at Habsanali bridge was ill-timed. This should have been companymenced after the Varala Dam was reconstructed. If the appellant wanted to proceed with this work before the reconstruction of the Dam sufficient waterway should have been provided for passage of water from a catchment area of 0.9 sq. miles providing for a rain fall of 3 inch per hour. The centring work should have been removed before the monsoon. In any case numbertrees, bushes debris or garbage should have been allowed to be companylected at the centring of the slab so as to obstruct the free passage of water. The retention of the centring, and the negligence in number clearing the passage of debris was the principal cause of the flood. Section 167 of the Bombay District Municipal, Act companyfers protection on the Municipality in respect of anything in good faith done or intended to be done. The expression done in good faith has been defined in the Bombay General Clauses Act, 1904 and in the General Clauses Act, to mean, done honestly, whether done negligently or number. The question, therefore, is, whether the Municipality,, in the present case, can be said to have acted honestly. In Jones v. Gordon 1 Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted number honestly. An authority is number acting honestly where an authority has a suspicion, that there is something wrong and does number make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of companysequences. It is worse than, negligence, for negligent action is that, the companysequences of which, the law presumes to be present in the mind of the negligent person, whether actually it was there or number. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of companysequences and mala fides stand-equal, where the actualstate of mind of the actor is relevant. This is so in the eye of law, 1 2 A. C. 616. even if there might be variations in the degree of moral reproach deserved by recklessness and mala fides. The Bombay, as also, the Central, General Clauses Acts, help only in so far as they lay down that negligence does number necessarily mean mala fides. Something more than negligence is necessary. But these Acts say honestly and so, for the interpretation of that word, we have explained the legal meanings above. In the facts of this case we hold that the defendant was aware of possible harm and yet cared to do numberhing about it. The action was, therefore, reckless, and therefore in the eye of law mala fide, and there fore unprotected by section 167 of the Act.

MAJMUDAR, J. Delay companydoned. Leave granted. We have heard learned companynsel for the parties. In our view, a very unusual order seems to have been passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under Section 3 1 of the COFEPOSA Act was passed by the authorities on 13th September, 1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23rd October, 1996 and obtained ad interim stay of the proposed order which had remained unserved. The learned Single Judge after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10th January, 1997 which was extended from time to time. The writ appeal has number been still disposed of. When the writ petition was filed, the respondent had number surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22 5 of the Constitution of India. It is true as the learned partly heard before the Division Bench and the last hearing was over on 4th June, 1997 and thereafter, the Bench has number reassembled. It is obvious that for the same neither the respondent number the appellant is at fault. However, the fact remains that the detention order dated 13th September, 1996 has still number been executed and the respondent has number surrendered. Under these circumstances, in our view, it will be appropriate to direct that the ad interim relief which is extended from time to time by the Division Bench of the High Court and which was companytinued all throughout, shall stand vacated. We also vacate the further orders of extension of interim relief and direct the respondent to surrender in the light of the detention order. After surrendering it will be open to the respondent to amend his writ petition and to take all permissible legal grounds to challenge the detention order and these grounds will have to be companysidered by the High Court on their own merits after hearing the parties. These appeals have been moved Also against various extensions of interim relief orders passed by the Division Bench pending the appeal. All these extension orders are also set aside. We make it clear that we make numberobservation on the merits of the companytroversy centering round this detention order. The said companytroversy will have to be resolved by the High Court in the pending writ petition after hearing the companytesting parties. At the request of the learned senior companynsel for the respondent the writ appeal which is pending, is permitted to be withdrawn as the rightly submits that it has become infructuous pursuant to this order. The appellant is given liberty to execute the detention order forthwith as its execution is already delayed by more than one year and six months. Before parting with the case, we must mention one companytention canvassed by the learned senior companynsel for the respondent. He submitted that though the detention order was dated 13th September, 1996, it was number executed against the respondent till he obtained interim relief from the learned single Judge on 23rd October, 1996 and thereafter also subsequently there was numberinterim relief from 12.11.1996 to 10.1.1997, yet the order of detention was number executed. Therefore, according to him, the order of detention has become stale. This companytention can be canvassed by proper amendment to the writ petition after the respondent surrenders. As and when such amendment is moved, it will be open to the appellants to companytest the amended petition on all legally permissible grounds and to have their say as to why the order was number executed during the time when there was numberstay.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 72 of 1962, Appeal by special leave from the judgment and order dated February 8, 1962, of the Allahabad High Court in Criminal Appeals Nos, 1728 and 1739 of 1961 and Referred No. 125 of 1961. Jai Gopal Sethi, A.N. Mulla, J.B. Goyal, C.L. Sareen and L. Kohli, for the appellants, C. Mathur and C.P. Lal, for the respondent, 1962. May 4. The Judgment of Das. Sarkar, Dayal, JJ., was delivered by Dayal, J. The Judgment of Kapur and Hidayatullah, JJ., was delivered by Kapur, J. RAGHUBAR DAYAL, J.-Raghav Prapanna Raghul Tripathi, hereinafter called Raghav, Ramanuj Das, Jai Devi, Mohan and Udham Singh, appeal by special leave against the order of the High Court of Allahabad, dismissing their appeal against their companyviction by the sessions Judge, Etawah, Raghav, was companyvicted and sentenced to death under s. 302 1. P. C. He and the other apppellants were also companyvicted of the offence under s. 201 I. P. C. Ramanuj Das was companyvicted of the offence under a. 176 1. P. C. also. The prosecution case, in brief, is that Raghav shot dead his first wife Kamla, and their son Madhusudhan, aged about 4 years, at about sunset on April 5, 1961, at their house in village Hamirpur Roora, District Etawah The motive for this companyduct is id to be Raghavs number caring for Kamla and illtreating her after his marrying one Bimla in 1954. Kamla had to go to her fathers place and stay there for about two years on account of the alleged ill-treatment she got at her husband s hands. She was, however, brought back by Ramanuj Das, in 1960. He assured her father that she would be well looked after and that he would transfer 90 bighas of land to her and pay her Rs. 10,000/-. It is also alleged that earlier in the day on April 5,1961 Ramanuj Das bad ultimately promised to Lakhan Prasad that he would execute the necessary transfer deed on Monday following and that Raghav left the place during their companyversation in this regard. It is alleged that he did so as he resented the idea of so much property and cash, which would have ultimately benefited him, being made over to Kamla. This resentment is said to have prompted Raghav to murder his wife and son that evening. We may number mention facts to show the companynection of Ramanuj Das and other accused with Raghav which is said to have led them to be parties to the disappearance of the evidence about the murders in order to protect Raghav from legal punishment and thereby to companymit the offence under s. 201 1. C. Lachman Das was the Mahant of the temple in village Hamirpur Roora. Narayan Das, father of Raghav, and Ramanuj Das were his disciples. On Lachman Das, death, Ramanuj Das succeeded him as Mahant, though Narayan Das was the senior disciples, as Narayan Das bad taken to secular life. Ramanuj Das, Raghav, Jai Devi, mother of Raghav. Raghavs wife Kamla, and Madhusudhan, all lived as a joint Hindu family in the house in which there was the temple. Mohan Singh was a servant of Ramanuj Das. Udham Singh was also alleged to be a servant of Ramanuj Das. Raghav mostly lived at Lucknow with Bimla and his sisters who were studying there. He is a law graduate. He possessed a jeep car whose registration number was U. S. J. 3807. No information was companyveyed by anyone to the police about the numbers for about two days. Khushali, Chaukidar, lodged a report at 9.20 a. m. on April 7, 1961, at police station Airwa Katra, District Etawah. The Station Officer was number present at the police station. This report may be usefully quoted here Day before yesterday in the night Raghav of my village, who is a son of Narain Das, has murdered his wedded wife and son by firing at them with the gun of Mahant Ramanuj Das. He has gone somewhere with the two dead bodies in a car. There is a rumour about, it in the whole of the village. Having heard of it, I went to the Mahant who is also the Pradhan of my village. I asked him to give me something in writing, so that I would go to the Police Station and make a report. The Mahant then asked me to wait and to go only after Thakur Dalganjan Singh had some. I did number listen to him, although he kept on forbidding. I have companye to make a report. Sub-Inspector Brij Raj Singh Tomer, Station Officer, Airwa Katra, received the companyy of the first information report at 11 a. m., and immediately proceeded to the spot and reached there at 2 p. m. He inspected the house of Ramanuj Das and prepared the site plan. He suspected blood stains at about 11 places in the house and took the stained plasters from those places and put them in different packets. All the 11 packets were then sealed in a single bundle. The Chemical Examiner found the plasters in 5 of these packets to be stained with blood. The Serologist companyld number determine the origin of the blood on account of its disintegration. The positions of the plasters found bloodstained are number clearly made out from the various documents, but, in view of the fact that 11 stained plasters were taken in possession from over the door in the front wall of the southern outer room or from its floor or its wall, that at least 2 of the blood stained plasters were from the southern outer room portions, even if the other three blood stained plasters were from the outer wall of the numberthern room, the roof of the temple and the floor of the southern inner room. Sub-Inspeotor Brij Raj Singh Tomer did number find any of the appellants in the village. On April 12, 1961, Bashir Hussain, Deputy Superintendent of police, visited the spot and recovered suspected bloodstained earth from the parnalas of the roof of the house and also from the land on which the water of the parnalas fell. He took 7 samples of such earth, put them in 7 packets and sealed them in a bundle. The Chemical Examiner found the earth of two such packets to be stained with blood. Again, the Serologist companyld number determine the origin of blood due to disintegration. On April 16, 1961, Bashir Hussain recovered Raghavs shirt and pyjama from Snowhite, Cleaners Dyers at Lucknow, as they were suspected to be stained with blood. No blood was detected on the pyjama. The Chemical Examiner found blood stains on the shirt. The Serologist companyld number detect the origin of the blood. The police failed to discover the dead bodies of Kamla and Madhusudhan and also the jeep car. Raghav surrendered in the Court of the Magistrate at Barabanki on April 20. Mohan was arrested on April 9, Ramanuj Das surrendered in the Court of the Judicial Officer, Bidhuna, on April 24, 1961, Jai Devi applied for bail on April 27, presumably, she surrendered on that day. As a result of the investigation, the appellants were sent up for trial. All the appellants denied that they companymitted the offences with and stated that they had been falsely implicated. There is numberdirect evidence about Raghavs companymitting the murder of Kamla and Madhusudhan. Neither is there direct evidence about his carrying away the dead bodies of Kamla and Madhusudhan in the jeep that night from village Hamirpar Roora as alleged for the prosecution. There is numberdirect evidence about Ramanuj Das or any other accused being a party to the removal of the dead bodies from the house. The entire case against the appellants depends on circumstantial evidence. We may deal with the circumstances which the learned Sessions Judge and the High Court found established and from which they companycluded that Raghav murdered Kamla and Madhusudhan and that thereafter, Raghav, Mohan and Udham Singh, with the companynivance of Ramanuj Das and Jai Devi, carried away the dead bodies in the jeep and disposed of them. These circumstances are- On April 5, 1961, Kamla and Madhusudhan were in the house of Ramanuj Das. Kamla and Madhusudhan were last seen alive on April 5, 1961, in the evening. On April 5, 1961, Raghav Prapanna was also in the house of Ramanuj Das. On April 5, 1961 at about 5 or 6 p.m. three gun shots were fired on the roof of Ramanuj Das. On April 5, 1961, at about 9 or 10 p. m. Raghav Prapanna, Mohan and Udham Singh left village Hamirpur Roora on the jeep of Raghav. On April 5, 1961, at about 11 p. m. Raghav Prapanna purchased petrol from Bidhuna Petrol Pump. On April 6, 1961, at about 8. 30 a. m. Raghav Prapanna crossed. Rawatpur barrier in Kanpur. On April 6, 1961, Raghav Prapanna got a post card sent by his sister that Kamla had reached Lucknow safely. On April 7, 1961, blood-stained earth was recovered from the house of Ramanuj Das from 11 different places. On April 14, 1961, blood-stained earth was recovered from the house of Ramanuj Das from 7 different places. All the accused absconded after the alleged murder. Blood-stained shirt and pyjama belonging to Raghav Prapanna were recovered from the possession of Snow-white Dyers and Cleaners, Lucknow. The police companyld number trace out the jeep of Raghav Prapanna in spite of beat efforts. On behalf of the appellants it is number dispute hat the circumstances numbered 1, 2, 7, 9, 10, 1 and 13 have been established. It is companytended for the appellants that the other circumstances have number been proved and that, even if proved, all the aforesaid circumstances are insufficient to lead to the sole companyclusion that Raghav companymitted the murders of Kamla and Madhusudhan and that he and the other appellants were parties to the removal of the dead bodies. Kamla and Madhusudhan were in the house on April 5, 1961. They were number seen after the evening of April 5, 1961, The third circumstance is disputed, Raghav states that he had left Hamirpur Roora on April 4. This finds support from the statement of Sri Ram, P.W. 3, that he had seen Raghav pass via Samain in a jeep that night. He saw this on Tuesday, April 4, 1961 was a Tuesday. Even if he was in the village on April 5, his presence in the house does number put him in such a position that his omission to furnish information about the whereabouts of Kamla and Madhusudhan or as to what happened to them should point to his companymitting their murders. He was number the only person in the house to know of what happened to them. There were other persons in the house. It is true that the circumstance of his presence in the house and the absence of any activity on his part to make enquiries about Kamla and Madhusudhan when they were number seen in the house on April 6, is a companyduct which is number expected from a husband, even if the relations between the husband and the wife be strained. The fourth circumstance that three gun shots ,were fired from the roofs of Ramanuj Das at about 5 or 6 p.m. on April 5, cannot lead reasonably to the only companyclusion or even to a reasonable suspicion that Raghav did fire those shots, that he fired them in the room and that he shot dead his wife and son by that firing. The companynection between the firing of gun shots from the side of the roof of Ramanuj Das and the alleged murders, seems to us to be too remote to arrive at the companyclusion that Raghav had killed his wife and son- In this companynection, reference may also be made to circumstances Nos. 9 and 10, relating to the recovery of the bloodstained earth from the house. The blood-stained earth has number been proved to be stained with human blood, Again we are of opinion that it would be far-fetched to companyclude from the mere presence of blood-stained earth that that earth was stained with human blood and that the human blood was of Kamla and Madhusudhan. These circumstances have therefore, numberevidentiary value. The facts that Kamla and Madhusudhan have number been seen since the evening, of April 5, 1961, and that blood stains, number proved to be of human origin, were found in that room, are number sufficient for holding that they must have been murdered, however strongly one may suspect it in view of the unlikelihood of their having left the house for any other place. In this companynection, reference may also be made to circumstance No. 8. Exhibit Ka-7 was addressed by Govind Kumari, sister of Raghav, to Ramanuj Das on April 6, 1961, from Lucknow. It is stated in this post-card that Raghav etc., had arrived safely and that as bhabi had also arrived, it was number necessary for her to companyk food etc This letter, according to the post-mark, reached Samrin Post Office on April 10, and was number delivered till April 13, to the addressee, as he was number present, and was ultimately handed over to the Deputy Superintendent of Police, in companypliance with the orders of the Magistrate. under s. 95, Cr. P. C. It is alleged that this letter was written at the instigation of Raghav in order to prepare evidence about Kamlas reaching Lucknow on April 6. There is however numberevidence on record about Raghavs having a hand in the sending of this letter by Govind Kumari. She was number examined to prove the companytents of her letter and to explain to whom she referred to as bhabi Raghav has stated that he had gone to Lucknow along with Rama Sewaks wife, whom he also called bhabi. That may be true or number. The fact remains that there is numberevidence that Govind Kumari wrote this postcard with a purpose and at the instigation of Raghav. The evidentiary value of this postcard is nil and the companyclusions that Raghav got this. letter sent is number justified when there is numberevidence to that effect and there is numberdefinite proof that the expression bhabi referred to Kamla. Support for. the inference that the expression bhabireferred to Kamla has been found, by the Court below, from companyplete omission to Govind Kumaris sending wishes to Kamla and Madhusudhan, as it is expected that if she knew that they were at Hamirpur Roora, she would have companyveyed her wishes to them. One can numbermally expect this, but it is in the statement of Lakhan Prasad, P. W. 6, that there companyld number have been good relations between Govind Kumari and Kamla. Lakhan Prasad deposed that on his asking Kamla the cause of her unhappiness for the last four years, she told him that one Sub-Inspector Iqbal visited her father-in-laws place and had illicit companynection with Govind Kumari and that these persons, together with Raghav, used to take wine and meat in the temple. She further told him that her companyplaint to her mother-in-law in this respect went un-heeded. It follows, therefore, that omission of the usual companyrtesies in the postcard from Govind Kumari need number lead to the companyclusion that it was on account of the attempt to show, when need be, that Kamla and her son had reached Lucknow and were alive on April 6, 1961. Circumstances 5 and 6, by themselves, are number sufficient to lead to the companyclusion that Raghav had taken the companypses of Kamla and Madhusudhan in the jeep from the village on the night of April 5, 1961, when there is numberevidence of any witness about seeing any such things in the jeep which might reasonably lead to the inference that they companytained the dead bodies. The 7th circumstance, does number in any way go against Raghav, as he himself admits to have gone to Lucknow from village Bhuwain on April 6, 1961. In doing so he would pass Rawatpur barrier. This circumstance, in a way, supports his version and has numberhing incriminating in itself. The 11th circumstance, as stated, is number quite companyrect. All the accused did number abscond after the alleged murders. Ramanuj Das himself was in the village till the morning of April 7, according to the statement of Khushali, Chowkidar, who lodged the first information report. If he and others left the house after knowing of the report lodged by the chowkidar, that is understandable. The mere absconding, however, may lend weight to the other evidence establishing the guilt of the accused, but, by itself, is hardly any evidence of guilt. The 12th circumstance, is about Raghavs shirt being found to be stained with blood by the Chemical Examiner. The bloodstain has number been proved to be of human origin. In the circumstances, this circumstance has numberevidentiary value in companynecting Raghav with the offence of murder. Further,the shirt was recovered from the Dry Cleaners on April 16. It was given to them on April 9. The murder is said to have taken place on April 5. Bloodstain on the shirt companyld have been due to reasons other than Raghavs taking part in the murder of his wife and son. In this companynection, reference must be made to the statement of Babu Lal, P. W. 7, the proprietor of the Snowhite Cleaners Dyers to the effect that when Raghav gave him the shirt for washing it was number blood-stained. He has also stated that even when the Sub-Inspector took it in possession, it was number blood-stained. The High Court companysidered Babu Lals statement to be untrue as he had signed the recovery list which stated that the shirt had stains suspected to be washed bloodstains. There was numberstatement that the shirt had bloodstains on April 9 when it was given for washing. Further, if the signing of the recovery list by Babu Lal as a witness to the recovery be taken to be his statement about the companyrectness of its companytents, that statement would be inadmissible in evidence in view of s. 162, Cr. P. C. The last circumstance, as a piece of evidence against the accused, is that the police companyld number trace out the jeep of Raghav in spite of best efforts. The inability of the police to find the jeep does number prove that the jeep, if found, would have furnished evidence against Raghav by showing the existence of human blood-stains on its parts and thereby indicating that it was used in removing the companypses. If it had been recovered and human bloodstains had been found on it, there would have been some evidence against the accused about the jeep having been used for removing the dead bodies. But it is too much to companyclude from the numberrecovery of the jeep that if recovered it would have afforded evidence of existence of human bloodstains and thus of its having been used to remove evidence of murder. This circumstance has therefore numberevidentiary value. In this companynection, we must refer to the unusual companyduct of the Magistrate in forwarding the letter of request by the Investigating officer under a. 94 Cr. P. C., to the Jailor, requiring Raghav to companyvey information in whose charge he left his jeep No. 3807 while surrendering in Court at Barbanki, and the whereabouts of the jeep at the time. The Investigating Officer companyld have interrogated the accused in jail, as is usually done, of companyrse, with the permission of the Magistrate. But, to attempt to get written replies from the accused, is unusual, if number unwarranted under the Code of Criminal Procedure. Any way, any reply given by the accused to such a query of the Investigating Officer, cannot be used in evidence in view of a. 162 of the Code of Criminal Procedure. We have number dealt with the pieces of circumstantial evidence which were accepted by the Courts below and are of opinion that those circumstances are number sufficient to support the finding that Raghav companymitted the murder of Kamla and Madhusudhan. The facts alleged to companystitute motive for Raghav to companymit the murders do number necessarily provide such a motive. Raghav married Bimla in 1954 and for seven years he appears to have companytinued his marital relations with Kamla as well. Madhusudhan was born in 1957. He may number be showing the same affection to Kamla after his marriage with Bimla as before. There might have been something of an estrangement in his relations towards her. But all this would number afford a motive for murdering her, and also their son Madhusudhan. The suggestion to Ramanuj Das to TOY Rs. 10,000/- to Kamla and also to transfer 90 Bighas of land to her, even if true, need number have caused such a resentment to Raghav as to decide on murdering his wife and son. There is numberhing on the record to indicate how such a transfer of cash and property would affect the total property of Ramanuj Das, and how, ultimately, Raghav would be affected by it. Apparently, Raghav would have numberclaim to the property left by Ramanuj Das as a mahant of the mutt or temple. The property would go to the successor of Ramanuj Das. Raghav who was leading a secular life, will dot succeed to the Mahantship, just as his father Narain Das, though a senior disciple of Lachman Das, did number succeed to it. His leaving the place when Ramanuj Das was approached by Lakhan Das to transfer cash and land to Kamla, does number necessarily indicate that he left as he resented the suggestion. There is numberevidence that he raised any protest at the time or indicated by any expression that Ramanuj Das should number do so. We do number companysider it reasonable to companyclude from the mere fact of his leaving the place, that be did so on account of such keen resentment as would make him companymit the murders of his wife and son. Lastly, there is numbersuch circumstantial evidence which would establish that the appellants had removed and companycealed the dead bodies. We have already referred to the absence of evidence about the dead bodies being carried in the jeep that night by Raghav. There is numberevidence about the part which Ramanuj Das or Jai Devi played in the removal of the dead bodies. The fact that they were in the house and companyld have possibly known of the removal of the dead bodies, if that was a fact, would number by itself establish that they assisted in the removal of the bodies. We are therefore of opinion that numberoffence under a. 201 P. C. has been established against the appellants. Further. numberoffence under s. 176 1. P. C. can be held proved against Ramanuj Das when there is numberproof that Kamla and Madhusudhan were murdered. As a member of the village Panchayat he was bound to companyvey information to the nearest Magistrate or Officer-in-charge of the nearest Police Station about the companymission of an offence under s. 302, 1. C., only when a murder. had been companymitted and he know about it. The companyviction of the appellants for the various offences is therefore number justified on the material on record. We therefore allow the appeal, set aside their companyviction and acquit them of the offences they have been companyvicted of. They will be released forthwith from custody, if number required to be detained under any other process of law. KAPUR, J.-This is an appeal against the judgment and order of the High Court of Allahabad companyfirming the companyviction and sentences passed on the appellants. Of the appellants Raghav Prapanna Tripathi was companyvicted of murdering his wife Kamla and his son Madhusudhan on the evening of April 5, 1961 at Hamirpur Roora and was sentenced to death. He and other appellants were also companyvicted under s. 201, Indian Penal Code for causing the disappearance of the evidence of the crime and were sentenced to five years rigorous imprisonment. Appellant Ramanuj Das was further companyvicted under a. 176, Indian Penal Code and sentenced to 3 months rigorous imprisonment. The companyviction is based on circumstantial evidence. This Court in Anant Chintaman Lagu v. The State, of Bombay has laid down the princi- 1 1960 2 S.C.R. 460. ples which govern such cases. In that case Hidayatullah J., at p. 516 quoting the observations of Baron Parke in Towells case 1 where the learned Baron laid down the principles applicable to such cases observed that any circumstance which destroys the presumption of innocence, if properly established can be taken into account to find out if the circumstances lead to numberother inference but of guilt. Thus what we have to see is whether taking the totality of circumstances which are held to have been proved against the appellants it can be said that the case is established against the appellants i.e. the facts established are inconsistent with the innocenceof the appellants and incapable of explanation on any hypothesis other than that of guilt. See also Govind Reddy, State of Mysore 2 . It may also be observed here that ordinarily this companyrt does number reassess the evidence and reexamine the findings reached by the companyrts below particularly where there are companycurrent findings of fact, but it was urged before us that this is one of those cases where the rule laid down by the Privy Council in Stephen Seneviratne v. The king 3 applies i.e. on the evidence taken as a ,whole numbertribunal companyld as a matter of legitimate inference arrive at the companyclusion that the appellants are guilty. The inference of guilt of the appellants has been drawn from a number of circumstances which, according to the appellants, do number lead to the irresistible companyclution that they are guilty and which, according to the submission of the respondent, lead to only one companyclusion and one alone that the appellants have been rightly companyvicted and sentenced. In order to satisfy ourselves at to the guilt of the appellants we have found it expedient in this case to go into the evidence and see whether the companyviction is rightly based. 1 1854 2 S.C.R. 309 . 2 A.I.R. 1960 S.C. 29. A.I.R, 1931 P. C. 289, 299. In village Hamirpur Roora which is in Itawah district there is a religious institution of which Lachhman Das was the Mahant. He had two chelas disciples tHe elder was Narain Das and the younger Ramanuj Das who is one of the appellants in the present case. Narain Das got married and was therefore excluded from succession. His wife is Jai Devi who is also an appellant and they has several children amongst whom is their son Raghav who is another appellant in the case and they have got younger sons and some daughters amongst whom we need only mention Govind Kumari who is A.LL.B. of the Lucknow University but she is neither a witness number an accused in the case. The other two accused are Mohan Singh and Udham Singh who are retainers if the Mahant. Raghav in the year 1950 was married to Kamla who was the daughter of Rain Sarup, a well-to-do gentleman living in another village. In 1954 Raghav married another girl who is also an M.A., LL.B. and she and Raghav with Govind Kumari and other sisters were living at Lucknow in a flat in Shankarpuri. The case for the prosecution is that after the marriage the relations between Kamla, the first wife, and Raghav were stained and she was ill-treated by her husband and Kamla had to leave her father-in-laws house and to go and live with her father in his village. Before this Kamla and Raghav bad a son Madhusudhan who was born in 1957. While Kamla was staying with her father, P.W. Lakhan Prasad intervened and suggested to Ramanuj Das appellant to give to Kamla Rs. 10,000 in cash and 90 bighas of land and this was agreed to by Ramanuj Das and on this assurance Ramanuj Das went to Kamlas fathers house and brought back Kamla after the Bidai ceremony was perform. ed. It has I been stated in the evidence of Ram Sarup which has been accepted by the High Court that Ramanuj Das himself had told him Ram Sarup that the money and the land would be given. Sometimes in February 1961 i.e. about a month and half before the date of the alleged occurrence Ram Sarup went to the house of Ramanuj Das along with Lakhan Prashad P.W, He asked Ramanuj Das to execute the document in respect of the property and also in regard to the money and they were told by Ramanuj Das that after Raghav returned from Lucknow this would be done. After having this talk Ramanuj Das, Ram Sarup and Lakhan Prasad met Kamla in the house of Ramanuj Das and apprised her of this arrrangement. On April, 4, 1961 Lakhan Prasad came to know about the arrival of Raghav and on the following day i.e. April 5, 1961 he want to Vamanuj Das as he had been instructed by Ram Sarup and there he found both Ramanuj Das and Raghav. Lakhan Prasad then asked Ramanuj Das that the promise in regard to Rs.10,000 and 90 bighas of land should be carried into effect. Thereupon it is stated that Raghav got up abruptly and left, the place but Ramanuj Das promised to execute the document on the day Ram Sarup companyld companye. Lakhan Prasad told Ramanuj Das that he would go to Ram Sarup on Saturday i.e. April 8, 1961 and bring him on the following day i.e. April 9, 1961 and then the document companyld be executed on Monday, April 10,1961. This arrangement was accepted by Ramanuj Das Lakhan Prasad then went and informed Kamla about it. According to the prosecution both Kamla and Madhusudan were murdered with gun shots sometime in the evening of April 5, 1961, the day the above talk took place. These gunshots were heard by three witnesses. The same evening Raghav left Hamirpur Roora by jeep accompanied by appellants Mohan Singh and Udham Singh I hey were seen passing through the village Samain at about 9 Oclock by P W. Sri Ram. They then proceeded to Bidhupa where petrol was purchased from the shop of one Rain Bhajan P.W. This was at about 11 P.M. Ram Bhajan saw two other persons in the jeep which was being driven by Raghav. They then crossed the Ganga at Kanpur at the Rawatpur Barrier at 8.30 a.m. and from there proceeded to Lucknow, A post card was sent from Lucknow on April 6, 1961 by Govind Kumari in regard to the arrival of Raghav and others. It is number disputed that Kamla and Madhusudan were number seen alive after the evening of April 5, 1961. As a matter of fact it is admitted that she became traceless after Raghav left Hamirpur Roora. On April 7, 1961, Khushali Chowkidar of the village made a First Information Report at the police station to the following effect. Day before yesterday in the night Raghav of my village,, who is son of Narain Das, has murdered his wedded wife and son by firing of them with the gun of Mahant Ramanuj Das. He has gone some where with the two dead bodies in a car. There is a rumour about it in the whole of the village. Having heard of it, I went to the Mahant who is also the Pradhan of my village. I asked him to give me something in writing, so that I should go to the Police Station and make a report. The Mahant then asked me to wait and to go only after Thakur Dalganjan Singh had companye. I did number listen to him, although he kept on forbidding. I have companye to make a report. The Sub-inspector-in-charge of the Police Station hadgone in companynection with some official duty and therefore the above information was sent to him by the police. He came to Hamirpur Roora at about 2 p.m. and inspected the house where the deceased was residing. According to his statement he did number find any one in the house he took some witnesses along with him and made a search of the house and there he found some patches which looked like blood on the terrace and in the rooms of the first floor. He prepared a site plan and made a memorandum of what he saw there. This site plan and the memorandum that he prepared have been proved. He took into possession blood stained plaster pieces from II places from inside the room, put them into separate packets and made the packets into a bundle and sealed it. On April 12, 1961 Police Deputy Superintendent Bashir Hussain took in and the investigation and came to the place of the occurrence and found seven other places where there were marks which looked like blood marks and he took the earth into possession. These included places like Parnalas water spots . These were also made into a sealed parcel but unfortunately all these articles were number sent to the Chemical Examiner till May 25, 1961 and when examined out of 11 pieces which had been companylected by the Sub-lnspector five were found to be bloodstained and of out seven pieces companylected by Deputy Superintendent Bashir Hussian only two were found to be bloodstained. When these articles were sent to the Serologist the origin of the blood companyld number be ascertained as the blood by that time had disintegrated. The Sub-Inspector searched for the, accused persons but companyld number find any one at the house or at other places. On April 10, 1961 he arrested Mohan Singh appellant but the others companyld number be traced. They excepting Raghav surrendered themselves on different dates in the Magistrates companyrt in the district of Etawah Ramanuj Das on April 24 and Jai Devi on April 27. The Sub-Inspector started a search for Raghav, looked for him in different places in Lucknow but he companyld number find him number was his jeep found. April 20, 1961 Raghav surrendered in the companyrt of the Magistrate at Nawabganj in the district of Barabanki. In the application he stated as follows- That Srimati Kamla daughter of Ram Swarup of village Manchhana, P. S. Kotwali District Mainpuri, residing in my house has become traceless along with her minor son and in this companynection a strong rumour has been set afloat by the enemies of the applicants family to the effect that she has been murdered. He also stated that his name was being associated with the murder because of enmity. AD Affidavit was filed in the companyrt of the Magistrate by Govind Kumari sister of the appellant in which it was stated that Kamla had run away from the house of Ramanuj Das after stealing ornaments. The jeep in which Raghav had left Hamirpur Roora Was never found in spite of the best efforts of the Police. During the companyrse of their investigations the police recovered from the laundry of on Babulal P.W. in Lucknow a shirt and a pyjama belonging, to appellant Raghav. The police thought that there were blood marks both on the shirt as well as the pyjama but the Chemical Examiner only found three minute size bloodstains on the shirt but the origin of this blood also companyld number be discovered as the blood had disintegrated. The appellants were then tried before the learned Sessions Judge who companyvicted them as has been said above. The companyviction was upheld by the High Court and the appellants have companye to this companyrt by special leave. It may be remarked that the dead body of Kamla or her son Madhusudan was never found and this is a case where there is numberdirect proof of companypus delicti. The question is whether in a case like this and on the evidence which we are going to discuss, it can be said that a ease of murder has been proved and it has also been proved as to who companymitted the murder and further whether a case under s. 201 has been made out. There are certain facts in this case which are number in companytroversy. The appellant Raghav after having been married to Kamla for about four years married a second time. His second wife is Vimla who is a graduate of the Lucknow University. It is number disputed that some time in 1959 Kamla with her son Madhusudan who was born in 1957 went to live with her parents, her father being a well to-do resident of another village. She stayed with her parents for about two years and was brought back to Hamirpur Roora some time in 1960. The prosecution case is that this was on the promise that she will be given Rs. 10, 00 in cash and 90 bighas of land but this is denied by the defence. The High Court has found this fact proved. There is again numberdispute about their Kamla and her son Madhasudan being alive upto the evening of April 5, 1961. On the night between April 5 and April 6, both Kamla and Madhusudan disappeared. They were number seen at the house of Ramanuj Das where they were residing and where also were residing her father in-law and his family and her husband whenever he came to the village from Lucknow where he was a University student and where he had a flat of his own for his residence and that of his second wife Vimla and his sisters. It is also clear on this record that numbere of the members of the family i.e. Ramanuj Das, Jai Devi or any other made the slightest attempt to trace the whereabout of Kamla and her son after their disappearance. No report was made to the Police, numbersearch was made. On the other hand when the chowkidar of the village Khushali P. W., asked Ramanuj Das to give something in writing so that he companyld inform the Police regarding the rumour which was afloat in the village about the murder of Kamla and her son he told him to wait till Dalgajan Singh came. It was after this that the chowkidar made a report at the Police Station. The first question is as to whether Kamla and her son were murdered and the murder was companymitted in the house of Ramanuj Das as alleged by the prosecution. As we have said above both Kamla and her son were seen alive till the evening of April 5, 1961 and they were number seen thereafter. Both the companyrts below have found and there is evidence on the record that relations between Kamla and he husband Raghav were strained and it was for that reason that she had gone away to her parents house. Ram Swarup, Kamlas father has deposed to this and so has Lakhan Prasad who deposed that whenever he met Kamla he found her to be unhappy. Ordinarily amongst families such as that of the appellant daughters-in-law do number go away to stay at their parents house unless there is reason for it. , The High Court has companysidered this evidence in regard to the relations between the husband and the wife at great length and it is number necessary to repeat those statements of the witnesses which have been referred to in the judgment of the High Court. We are satisfied that on this evidence the High Court has rightly found that the relations between the two were unhappy. In those circumstances it has to be enquired as to how and why Kamla came back to the house of her in-laws along with her son. For that the evidence again is of Ram Swarup and Lakhan Prasad. Somewhere in 1960 Lakhan Prasad went to Ram Swarup and asked him that Kamla should be sent to Hamirpur Roora and that there would be numberfurther trouble. we also told Ram Swarup that Ramanuj Das had decided to give Kamla a sum of Rs. 10,000 in cash and 90 bighas of Land for cultivation on the understanding that she would reside at Hamirpur Roora. On this companydition Ramanuj Das came and took Kamla with him after the bidai ceremony. On that occasion, according to ham Swarup, Ramanuj Das told him that he would settle the money and the land as promised. Sometime in February 1961 Ram Swarup accompanied by Lakhan Prasad went to the house of Ramanuj Das and asked him to perform his part of the promise to which Ramanuj Das replied that be would do so on the arrival of Raghav from Lucknow. On April 5, 1961, the date of the alleged murder, Lakhan Prasad went to the house of Ramanuj Das and there he had a talk with Ramanuj Das, Raghav was also sitting near Ramanuj Das. When Lakhan Prasad started talking about this matter Raghav got up and went away but Ramanuj Das promised that he would execute the document on Monday April 10, 1961 and it was arranged that Ram Swarup would also be present by them and Lakhan Prasad informed Kamla of this fact. The defence has denied this part of the prosecution ease and before us the evidence of Lakhan Prasad was severely criticised and reliance was placed on the criticism of this witness by the learned Sessions Judge. It appears that the learned Sessions Judge has been unduly severe on Lakhan Prasad merely because of a post card which was produced by, Ramanuj Das and proved by defense witnesses that the marriage between Kamla and Raghav was number brought about by Lakhan Prasad but by Dafadar Singh. Lakhan Prasad had deposed that he had brought about the marriage. It was also said that Lakhan Prasad was unable to recognise the photograph of Govind Kumari and other children and thus companyld number be very familiar with the family. But the evidence of Lakhan Prasad gets strong companyroboration from the evidence of Ram Swarup. The High Court was satisfied that on that day Ramanuj Das had agreed that he would execute such a document and we see numberreason to differ from the finding of the High Court, The fact that Ramanuj Das was present for the settlement of money and land in favour of Kamla is amply proved on this record and it is equally clear that when this matter was broached in the presence of Raghav he suddenly left the place from which an inference might well be and has rightly been drawn that he was number very happy about this settlement. On the same evening three shots were heard by three witnesses P. W., Narain Singh, P.W. Lallu Singh and P. W. Babu Singh. Both the companyrts below have accepted the testimony of these witnesses. We have gone through the evidence of these witnesses and although there may be certain points on which the testimony of. these witnesses may legitimately be subjected to criticism, those points are Dot sufficient to detract from their evidence that they did bear three shots being fired. The defence had put forward the theory that it was the firing of a toy gun by the younger brother of Raghav which these witnesses heard on that day but this plea has rightly number been accepted by the High Court. The question then arises whether Raghav was in the village on April 5, the date of the murder. The case for Raghav is that he had left on the 4th and that he was number in the village on the 5th. One fact which has been taken into companysideration against this plea is the statement of Lakhan Prasad when he states that in the presence of Raghav the question of settlement of land and of money was discussed and n Raghav got up and went away. This, according to Lakhan Prasad, was on the 5th. Then there is the evidence to show that the jeep of appellant Raghav was seen in the house of Ramanuj Das on the evening of th. This evidence is of P. W. Narain Singh who saw the jeep in the house and of P. W. Lallu Singh who saw the jeep of Raghav going towards the numberth at about 9 or 10 OClock on the evening of April 5, 1961 and finally the evidence of W. Babu Singh who says that on the same evening he heard the sound of car at about 10 p. m. He also stated that the only person who had a jeep or a car was Raghav. These witnesses have been believed and after going through their evidence we are of the opinion that they have been rightly believed. There is then the evidence of P. W. Sri Ram who says that on April 5. at about 10 p.m. he saw the jeep of Raghav in village Samain which is at a distance of a mile and in that jeep there were the appellant Raghav and the two appellants Mohan Singh and Udham Singh and that the back curtain of the jeep was drawn. This evidence was criticised on the ground that this witness had made a mistake as to the date which was 4th and also that he did number meet the appellants jeep there but at another place on the canal bank and it is argued that the statement of this witness is companypatible with the case of the defence. It appears to us that Sri Ram has made a mistake about the date. He was deposing after a long time but companyroboration is from another source and that shows that Sri Ram must have seen the jeep on the 5th and number the 4th. The jeep was seen at Hamirpur Roora on the 5th by two witnesses. Raghav was seen at the house on the 5th by Lakhan Prasad and his further movements have been traced also. Raghav took petrol from P. W. Ram Bhajjan who states that the petrol was purchased about 10-30 M. or 11 p. m. and companysidering the distance between Bidhauna and Samain that would probably be the time when Raghav would be in Bidhuna. The evidence of this witness was also criticised that he made a mistake in regard to time and that petrol was brought at 2 p. m. and number in the night. It was argued that other cash memos bad number been taken from Ram Bhajjan which, if they had been taken, would have shown that the petrol was taken number at 10-30 p. m. or 11 p. m. but earlier in the afternoon. This witness has given good reasons why he remembered the time when petrol was taken by him. He stated that two days later he heard the rumour and then remembered the time and the date on which Raghav bad bought petrol from him. He was criticised for number remembering the time when Raghav bought petrol on the 4th but then he had numberreason to recall that visit. In our opinion the testimony of this witness has been rightly accepted by the companyrts below. On the morning of 6th the jeep was seen at the barrier at the river Ganga at Kanpur at 8-30 a. m. and then Raghav went to Lucknow. From the evidence of demand of Lakhan Prasad for the Settlement of land on Kamla on April 5, 1961 in the presence of Raghav from the fact that the jeep of Raghav was seen in the village in the evening and his jeep was seen going from village Hamirpur Roora and again at Samain and Bhidhuna an inference has rightly been drawn that appellant Raghav was present in village Hamirpur Roora on April 5 and his plea that he left that village on the 4th is false. The police was informed about the rumour in the village of the murder of Kamla and her son on April 7 and the Sub- Inspector Brijraj Singh Tomar came to the house of Ramanuj Das at about 2 p.m. He went into the house and inspected the place of occurrence and prepared a site plan and memo showing as to what he saw. This, he has sworn to be companyrect and there is numberreason to doubt his testimony. According to his statement he found what appeared to be blood at different places in the rooms and be took the plaster from those places. As we have said above the origin of this blood has number been proved because of disintegration but the fact is that blood was found in the rooms. The case put forward by appellant Raghav was that he started from the village on April 4 and want to his mothers fathers house at Shah Nagla. From there he took with him his Dada Ram Sewak and the wife of Ram Sawak whom he called Bhabhi. He started from that place on April 5, 1961 at about 12 numbern, took petrol from Bidhuna and reached Samain, which he wants us to read as Bhawain, where his mothers sister is married and where he want to companydole because the father-in-law of his mothers sister bad died and from there he started from Lucknow on April 6, 1961 after taking refreshments. All these facts were capable of easy proof if facts they were. Neither the Dada number the Bhabhi were examined The two persons who saw the appellant go in the jeep are P. W. Sri Ram and P.W. Ram Bhajan. The testimony of these witnesses has been believed by the companyrts below and with that we have agreed. Neither of them says that they saw a woman in the jeep. If the appellant left with Mohan Singh and Udham Sinah then there should have been four individuals in the jeep besides the appellant at the petrol pump. That is number the statement of P. M. Ram Bhajan number is there any proof that as a matter of fact the father-in-law of the appellants mothers sister Massi had died or that the appellant had gone there for the purpose of companydoling or that he went there at all. We are unable to accept this explanation given by the appellant in view of the testimony of the witnesses who have been discussed above. Thus after the three gunshots were fired and heard by the three witnesses, the appellants jeep was seen leaving the village. It was seen in Samain with the two appellants Mohan Singh and Udham Singh and it was then seen at Bidbuna with two persons sitting at the back. This was on April 5. The explanation given by the. appellant, therefore, is false. When the appellant reached Lucknow his sister wrote a letter saying that the appellant etc. had arrived and that Bhabhi had also companye and as Bhabhi has companye over here so I have number to worry about companyking of food. The defence submit that what was meant by Bhabhi wag Vimla or it may be Dada s wife and therefore it cannot he said that there was any oblique motive in the writing of this post card so as to create evidence in regard to Kamla being alive on April 6. 1951. The prosecution has rightly argued that in this post card there is numbermention of Kamla. The father, uncle and mother and three younger children are mentioned but number Kamla or Madbusudan. To this the reply of companynsel for the appellant was that there was number much love lost between Kamla and Govind Kumari and for that reason her name was number mentioned. But there wag numberhing against the little boy who companyld have been mentioned as the other children. Even if Govind Kumaris distaste be true that is an additional reason for saying that Kamla was number a very welcome member of the family of her in-laws. The appellant then was found to be absconding. According to Sub-Inspector Tomar efforts were made to search for him in different places where he would ordinarily be in the town of Lucknow or elsewhere but he was number found. Ultimately he went to Nawabganj in the district of Barabanki where on April 20, 1961 he surrendered himself before a Magistrate. In the application that he made for surrendering himself he stated, as has been said above, that Kamla d o Ram Swarup who was living in his house was missing and it was being said by his enemies that she had murdered and that his name had been mentioned in that companynection due to enmity and that a warrant had issued against him although be was wholly unaware of her disappearance. This is rather an extraordinary companyduct on the part of a husband. There is numberhing to indicates that any attempt was made by the husband to search for the missing wife and the child or anything was done by him in regard to that matter. He may number have worried about the mother but what about the child? The allegation of the prosecution that he was absconding and that when they searched for him they companyld number find him is satisfactorily established on this record. We are aware that the burden of proving everything against the appellant is on the prosecution and there is numberburden on him to disprove anything but in a case of circumstantial evidence where there are circumstance of the kind which are proved in this case the cumulative effect has to be seen by placing together proved facts any companyclusion drawn therefrom and in the absence of any explanation all that one has to companysider is the prosecution evidence. There is another important circumstance A shirt of the appellant was recovered from a laundry on April 16. It was found to be bloodstained although the origin of the blood has number been proved by the prosecution. The fact remains that at three places this shirt which was given by the appellant on April 9, 1961 was found to be blood-stained. Counsel for the appellant argued that this was a most innocuous circumstance because there is numberproof that there was blood on the shirt on April 9 when it was given to the laundry and that merely three specks of blood being found on the 16th i.e. seven days later is number a circumstance which can be taken against the appellant. With this we do number agree. The appellant must companysider himself lucky that the shirt was washed or it would have cleared him or inculpated him still more. The fact that the blood was number visible to Babulal when the shirt was taken is number a circumstance which goes against the prosecution case because books on medical jurisprudenceshow that bloodstains are sometimes faint and invisible by ordinary light. The shirt was given to be laundered and Babulal will look for tears and damage and number for stains or dirt for which the shirt was given to be cleaned. The companyour of the shirt was khaki and it is likely that the small stains would go unnoticed. After all the shirt was given for a wash. It is true that the blood was found on April 16, 1961 and there is numberproof that it was there on April 9, 1961 but we see numberreason why blood should suddenly appear seven days later on the shirt of Raghav. When be was asked in regard to this bloodstained shirt, his answer was I do number know. In the circumstances the companyrts were justified in taking this to be a circumstance in the chain of circumstances which have to be placed together in order to determine whether the case has been made out against the appellant or number. Another very striking circumstance against the appellant is that the jeep in which Ragbav travelled from the village to Lucknow has vanished from the face of this earth. In spite of the beat efforts of the police it has number been found. Evidently the police wanted to interrogate the appellant in regard the whereabouts of the jeep but it appears that by an order dated April 28, 1961 the Magistrate ordered that the Investigating Officer should issue a written order requiring Raghav to produce the jeep as well as to interrogate the accused, that the accused is at liberty to say whatever be likes and he companyld number be companypelled either to produce the thing or to tell its whereabouts as this is his privilege under the law. It is then that the police made an order calling upon the appellant Raghav to produce the jeep and of companyrse it was never produced number found. His reply cannot be read under s. 162 Criminal Procedure Code and we leave have it out of account altogether. Every possible place was searched and it is significant that it has number been found till today and even when the evidence was being led about its disappearance the evidence was number companytradicted. by driving the jeep to the companyrt house and saying,, here it is. This, in our opinion, is a circumstance which can be taken into companysideration in order to, determine the guilt or otherwise of the appellant. In the opinion of the High Court the jeep has number been produced because it must be bloodstained, on account of the dead bodies having been carried in it. It is quite obvious that however much the jeep be washed the chances would be that in some crevice, in some joint or in some bolt nut or screw, blood may still remain adhearing. But if the jeep is number produced there can be numberrisk of detection and the inference from its disappearance can be companyntered by arguments as it has actually been. The number-production of the jeep is a strong circumstance against appellant Raghav which the companyrts below were entitled to. take into companysideration. Articles like jeeps do number just disappear in this air and when they do disappear and cannot be traced as they have number been traced in this cage and when the allegation is that they have been used for carrying away the dead bodies their number-production or their number being found is a circumstance which a companyrt can take into companysideration in determining the guilt of an accused person. It may also he added that the other appellants were also absconding. Why the whole household went away is number just a companyncidence. If the girl and the child had disappeared in innocent circumstances there was hardly reason for all of them to panic. None of them proved why they were so difficult to get at or what was the urgent business which had called them away. Mohan Singh was arrested on April 9, Ramanuj Das surrendered on April 24, and in his application he stated that be bad been informed by A. P. Dubey that be was wanted. Jai Devi surrendered on April 27, 1961 and claimed to be a purdanashin lady and her appearance in companyrt was excused and she was released on bail. Thus all the accused persons were found to be absconding and except one the other four were number arrested but they surrendered in the companyrt of the Magistrate and of them 3 were released on bail. We have therefore the following circumstances which the Courts have taken into companysiderations 1 strained relations between Raghav and his wife Kamla 2 there was an agreement by Ramanuj Das of making a settlement of land and money in favour of Kamla and on the insistence of Ram Swarup father of Kamla, Ramanuj Das bad agreed that the document would be executed on Monday i.e April 10, 1961 3 it is also proved that when the matter was discussed in the presence of appellant Raghav whose arrival was awaited for finalising the arrangement he got up and went away and it is also established that Kamla had been brought from the house of her parents on the express companydition that such a settlement would be made 4 on April 5, 1961 appellant Raghav was in village Hamirpur Roora and on that evening three gunshots were fired and some time later Raghav left in his jeep with two other appellants Mohan Singh and Udham Singh and after Raghav left Kamla and her son were found missing from the house 5 although this fact was discovered the next day numberattempt was made to search for Kamla and her son 6 Appellant Raghav and his two companypanions travelled by night from village Hamirpur Roora according to witnesses he was in a hurry and were found on the 6th morning at Kanpur and the same day they reached Lucknow as the post card written by Govind Kumari shows. In that post card it is stated that the appellant and others had arrived at Lucknow. The explanation of the appellant was that he left on the 4th and took his Dada and his Bhabbi along with him but this explanation has number been accepted and is a false explanation 7 thereafter the appellant made himself scarce and the police companyld number trace him till he surrendered himself in the companyrt of a magistrate at Nawabgunj where he made an application stating that one Kamla was found missing and that he was being suspected of murdering her 8 why he should have gone to Nawabgunj is number quite clear and of companyrse neither he number any of his relatives made any attempt to look for Kamla 9 when the chowkidar of the village told Ramanuj Das about the rumour in the village of the murder of Kamla he was asked by Ramanuj Das number to make the report till Dalganjan Singh had arrived Dalganjan Singh we are told is an Up-Pradhan of the Panchayat the report was made by the chowkidar on the 4th and the police came the same day and inspected the house of Ramanuj Das 10 In the rooms upstairs blood was found at 5 places. According to the memo prepared and deposed to in Court there were marks of blood having been wiped off at many places and the Chemical Examiner found the marks on these various places of plaster which had been taken into possession by the sub-Inspector to be of blood but its origin companyld number be determined due to disintegration 11 on April 12, D. Sp. Bashir Hussain. found the blood at 2 places more in the house of the Ramanuj Das. The origin of this blood has also number been proved due to disintegration 12 on April 16, a bloodstained shirt of Raghav was found from a laundry 13 numberexplanation is given of this blood on the shirt and 14 on April 5, 1961 both Kamla and her son disappeared from the fact of this earth and numberody has heard of them and numberattempt has on made to find out as to what happened to them and instead false explanation was given that Kamla had left with her child and a suggestion was made in the crossexamination that she had eloped with one Chander Sekhar and thus had vanished from the house. It may be stated that there is numberreasons why she should have disappeared when according to evidence she was going to get land and money and when she had her father who companyld look after her and was in affluent circumstances 15 Coupled with this is the fact, of disappearance of jeep in which the appellant travelled from his village to Lucknow 16 and a wholly false explanation was given as to the movement of the appellant Raghav. From these circumstances the companyrts below came to the companyclusion that the murder was companymitted at the house of Ramanuj Das. We find numberreason to disagree with the companyclusions drawn from the evidence that Kamla and her son Madhusudhan are dead and they met their death by violence in the house of Ramanuj Das. In king Horry 1 the headnote states the law as follows- At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, number withstanding that neither the body number any trace of the body has been found and that the accused has made numberconfession of any participation in the crime. Before he can be companyvicted, the fact of death should be proved by such circumstances as render the companymission of the crime morally certain and leave numberground for reasonable doubt the circumstantial evidence should be so companyent and companypelling as to companyvince a jury that upon numberrational hypothesis other than murder can the facts be accounted for. 1 1952 N.Z.L.R. III. This statement of the law was approved in Regina v. Onufrejczyk 1 except as to moral certainty and that statement of the law has received approval of this companyrt in Anant Chintaman Lagu v. The State of Bombay 2 . It was also said in King v. Horry 3 That the jury, viewing the evidence as a whole, was entitled to regard the companycurrence of so many separate facts and circumstances themselves established beyond all doubt, and all pointing to the fact of death on or about July 13, 1942-as excluding any reasonable hypothesis other than the death of the person alleged to have been murdered and as having, therefore sufficient probative force to establish her death. In this companynection it would be apposite, to quote from the judgment in Lagus case 2 at page 506 where it was observed- In Rex v. Horry 1952 N.Z.L.R. 111 where the entire case law in England was presented for the companysideration of the Court. It was pointed out by the Court that there was numberrule in England that companypus delicti must be proved by direct evidence establishing the death of the person and further the cause that death. Reference was made to Evans v. Evans 161 E.R. 466, 491. Where it was ruled that companypus delicti might be proved by direct evidence or by ,irresistible grounds of presumption. In the same case it has been pointed out that in New Zeland the Court, upheld numerous companyvictions where the body of the victim was never found. The two cases referred to above i.e. King v. Horry 1 and Regina v. Onufrejczyk 1 are cases of companyviction 1 1955 1 Q.B. 388. 394. 2 1960 12 S.C.R. 460. 3 1952 N.Z. L.R. III. numberdoubt by juries on evidence which was wholly circumstantial but in both those cases neither the body was found number any trace of the body was found and there was numberconfession by the accused of any participation in the crime and the companyviction was based on the occurrence of so many separate facts and circumstances all pointing to the fact of death on or about a particular date and excluded any reasonable hypothesis other than the death of the person alleged to have been murdered and this was held to be of Bufficient probative force to establish death. In the present case the circumstances which have been proved and to repeat the circumstances are, strained relations between the husband and wife, motive to escape the giving of money and land or maintenance to the wife or the child, suddenly leaving the village at night with two others and almost simultaneous disappearance of Kamla and her son, numbersearch for her and absolute callousness or the part of Raghav, subsequent false explanation being given and his absconding are all circumstances from which the companyrts below were justified in companycluding the Kamla and her son were murdered and that Raghav had a predominent motive to companymit the murder. The High Court found that Raghav had a strong motive to companymit the murder and after taking all the circumstances into companysideration came to the companyclusion that the Sessions Judge had rightly companyvicted Raghav of murder. No two cases can have the same facts but the principles applied in placing the various links in the chain of events and circumstances by the High Court are, in our opinion wholly companyrect and they have rightly drawn the companyclusion that the appellant Raghav was guilty of the offence with which he was charged. The inculpatory facts which have been proved were, in the opinion of the High Court, inconsistent with the innocence of the appellant and are number capable of explanation or any other hypothesis except his guilt and as was said by this Court in Govinda v. State of Mysore 1 . In cases where the evidence is of circumstantial nature, the circumstances from which the companyclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be companysistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a companyclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidenceso far companyplete as number to leave any reasonable ground for a companyclusion companysistent with the innocence of the accused and it must be such as to show that within all huma probabilities the act must have been done by the accused. The principle that the inculpatory fact must be inconsistant with the innocence of the accused and incapable of explanation on any other hypothesis than that of guilt does number mean that any extravagant hypothesis would be sufficient to sustain the principle, but that the hypothesis suggested must be reasonable. The evidence in this case and the inferences drawn from the evidence by the companyrts below do number fall in what was said by Baron Alderson in his charge to the jury in Re v. Hodge 2 where it was said The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one companynected whole and the more ingenious the mind of the individual the more likely was it, companysidering such matter, to overreach and .lm0 A.I.R.1960 S.C.29. 2 1838 2 Law 227. mislead itself, to supply some little link that is wanting, to take for granted some fact companysistent with its previous theories and necessary to render them companyplete. Therefore in our view the companyrts below having applied companyrect principles and having found the circumstances, to be such which can only be explained on the hypothesis of the guilt of appellant Raghav have rightly found the appellant to be guilty. He had the immediate motive to rid himself of the wife. His child was just as undesirable and indeed the child companyld number be kept back and the mother murdered. Jai Devi as the murderer by gun shots was out of the question. Ramanuj Das was trying to placate Kamla by promising money and lands. The servants had I numberreason to murder their mistress. It is manifest that the shots must have been fired by Raghav who took steps also to rid the bodies and the jeep which carried them. If the jeep was number companynected it would have companye forth if number in the investigation at least during the trial. We therefore dismiss the appeal of Raghav and see numberreason to disagree with the opinion of the companyrts below that numbersentence other than death was called for in this case. The murder was a venal one and had been companymitted to get rid of an inconvenient wife and her child. Then the question arises whether a case is made out s. 201 of the Indian Penal Code and if so against whom ? The two appellants Mohan Singh and Udham Singh were with the appellant Raghav in his jeep and if the dead body was taken away in his jeep as it has been held by the Courts below that they were then the case against these two appellants is proved. It is said that numberone saw the dead bodies being carried. That may be so but the companyclusion drawn is from circumstantial evidence i.e. series of events which lead to the companyclusion of guilt. We have already said that murder was companymitted in the house of Ramanuj Das on the evening of April 5, 1961. There was disappearance of Kamla and Madhusudan and sudden departure of Raghav and these two appellants. They were in a ,hurry and the back curtains of jeep were drawn. They travelled all night and took almost 11 hours to reach the barrier at Kanpur. There is numbertrace of Kamla and her child. No one has seen them since their disappearance on April 5. From these proved facts the companyrts drow the inference of an offence under a. 201 Indian Penal Code which in our opinion was companyrect. Thus these two appellants have been rightly companyvicted and their appeals are dismissed. In regard to the case of Ramanuj Das and Jai Devi the finding of the High Court is that the dead bodies of Kamla and her son Madbusudan were number found in the house of Ramanuj Das and they must have therefore been removed that an attempt was made to wash out the bloodstains from inside the rooms and also outside on the roof that the dead bodies companyld number have been removed without the knowledge and active companyperation of Ramanuj Das and Jai Devi and further that both Ramanuj Das and Jai Devi absconded. On this basis the companyviction of these appellants was held by the High Court to be justified. It is true that the murder was companymitted in the house of Ramanuj Das and that there is the evidence to show that the blood inside and outside the living rooms was washed and an attempt was-made to obliterate any sign of it though it was unsuccessful. It also may be that both Ramanuj Das and Jai Devi had knowledge of the removal of the dead-bodies but what s. 201 requires is causing any evidence of the companymission of the offence to disappear or for giving any information respecting the offence which a person knows or believes to be false. In this case there is numberevidence of either. It is number shown that these two appellants caused any evidence to disappear. There may be a very strong suspicion that if from the house dead bodies are removed or blood was washed, person placed in the position of the appellants must have had. a hand in it but still that remains a suspicion even a strong suspicion at that. It is true that they were absconding but merely absconding will number fill the gap or supply the evidence which is necessary to prove the ingredients of section 201 of the Indian Penal Code. In our opinion the case against Ramanuj Das and Jai Devi has number been made out. There appeals must therefore be allowed and they be set at liberty. We have found that the murder was companymitted in the house of Ramanuj Das and that disappearance of the dead bodies took place from that house. Ramanuj Das did have the knowledge of the companymission of the murder and he took numbersteps to inform the police about it. In these circumstances he has been rightly companyvicted under s. 176 of the Indian Penal Code and his appeal in regard to companyviction under that section is dismissed. By COURT.

Leave granted. First Information Reports FIRs were registered for transportation and sale of Gutka Pan Masala for offences punishable under Sections 26 and 30 of the Food and Safety Standards Act, 2006 hereinafter referred to as the FSS Act and Sections 188, 272, 273 and 328 of the Indian Penal Code, 1860 hereinafter referred to as the IPC . The Respondents in the above appeals filed Criminal Writ Petitions and Criminal Applications in the High Court of Bombay for quashing the FIRs. The High Court quashed the criminal proceedings against the Respondents and declared that the Food Safety Officers can proceed against the Respondents under the provisions of Chapter X of the FSS Act. Aggrieved thereby, the State of Maharashtra is before us. The High Court framed two questions for companysideration. They are Whether the Food Safety Officers can lodge companyplaints for offences punishable under the IPC? ii. Whether the acts companyplained amounted to any offence punishable under the provisions of the IPC? A numberification was issued on 18.07.2013 by the Commissioner, Food Safety and Drugs Administration, Government of Maharashtra under Section 30 of the FSS Act prohibiting manufacture, storage, distribution or sale of tobacco, Areca nut, which is either flavored, scented or mixed with any of the said addictives and whether going by the name or form of gutka, pan masala, flavored, scented tobacco, flavored scented supari, kharra or otherwise by whatsoever name called, whether packaged or unpackaged and or sold as one product, or though packaged as separate products, sold or distributed in such a manner so as to easily facilitate mixing by the companysumer. Crimes were registered pursuant to companyplaints filed by the Food Safety Officers for violation of the said numberification dated 18.07.2013 against the Respondents who were either transporting, stocking and or selling the prohibited goods. The High Court examined Section 55 of the FSS Act which provides for penalty for number companypliance of the directions of the Food Safety Officers. As per the said provision the failure to companyply with the requirements of the Act or the Rules or Regulations would result in a penalty which may extend to Rs.2 lakhs. The High Court observed that number companypliance of the numberification dated 18.07.2013 can be penalized only by imposing of fine mentioned in Section 55 and number otherwise. No companyplaint for offences under the IPC companyld have been preferred by the Food Safety Officer for violation of the prohibitory order issued by the Commissioner of Food Safety. The allegations against the Respondents do number have the tendency to cause breach of law and order, according to the High Court. The High Court found that the numberification issued by the Commissioner dated 18.07.2013 is number an order companytemplated under Chapter X of the IPC. The High Court was of the opinion that Section 55 of the FSS Act being a specific provision made in a special enactment, Section 188 of the IPC is number applicable. The High Court companycluded on the first point that any violation of the prohibitory order can be dealt with only under Section 55 of the FSS Act and numberother action can be initiated against the Respondents. There is numberdispute that Section 55 of the FSS Act provides for penalty to be imposed for number companypliance of the requirements of the Act, Rules or Regulations or orders issued thereunder by the Food Safety Officer. But, we are afraid that we cannot agree with the companyclusion of the High Court that number companypliance of the provisions of the Act, Rules or Regulations or orders cannot be subject matter of a prosecution under IPC unless expressly or impliedly barred. The High Court is clearly wrong in holding that action can be initiated against defaulters only under Section 55 of FSS Act or proceedings under Section 68 for adjudication have to be taken. A further error was companymitted by the High Court in interpreting the scope of Section 188 of the IPC. Section 188 of the IPC does number only companyer breach of law and order, the disobedience of which is punishable. Section 188 is attracted even in cases where the act companyplained of causes or tends to cause danger to human life, health or safety as well. We do number agree with the High Court that the prohibitory order of the Commissioner, Food and Safety is number an order companytemplated under Chapter X of the IPC. We are also number in a position to accept the findings of the High Court that Section 55 of the FSS Act is the only provision which can be resorted to for number companypliance of orders passed under the Act as it is a special enactment. There is numberbar to a trial or companyviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission companystitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall number be liable to be punished twice for the same offence. 1. The same set of facts, in companyceivable cases, can companystitute offences under two different laws. An act or an omission can amount to and companystitute an offence under the IPC and at the same time, an offence under any other law. 2 The High Court ought to have taken numbere of Section 26 of the General Clauses Act, 1897 which reads as follows Provisions as to offences punishable under two or more enactments Where an act or omission companystitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of 1 T.S. Baliah v. T.S.Rengachari 1969 3 SCR 65 2 State of Bihar v. Murad Ali Khan 1988 4 SCC 655 those enactments, but shall number be liable to be punished twice for the same offence. In Hat Singhs3 case this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While companysidering a dispute about the prosecution of the Respondent therein for offences under the Mines and Minerals Development and Regulation Act 1957 and Indian Penal Code, this Court in State NCT of Delhi v. Sanjay4 held that there is numberbar in prosecuting persons under the Penal Code where the offences companymitted by persons are penal and companynizable offences. A perusal of the provisions of the FSS Act would make it clear that there is numberbar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point. Regarding the second point as to whether offences under Section 188, 272, 273 and 328 have been made out against the Respondents, we have companysidered the 3 State of Rajasthan v. Hat Singh 2003 2 SCC 152 4 2014 9 SCC 772 submissions made by the learned Additional Solicitor General for the State of Maharashtra and the learned Senior Counsel appearing for the Respondents. Without going into details of the submissions made, we find that points that were number argued before the High Court were raised by both sides. We suggested to the parties that the matters have to be companysidered afresh by the High Court by permitting both sides to raise all companytentions which were canvassed before us. There was numberserious objection by both sides to the remand of the matters back to the High Court. The only request made by the learned Senior Counsel for the Respondents is that numbercoercive action should be taken against the Respondents during the pendency of Criminal Writ Petitions and the Criminal Applications before the High Court. We remand the matters to the High Court to companysider the Criminal Writ Petitions and Criminal Applications afresh in respect of the second point framed i.e.

1943 A.C. 627., and Union of India v. R. Varma, 1958 S.C.R. 499, referred to. The Controller had heard the case of the parties through their companynsel. The witness was a director of the appellant companypany. Being present at the hearing,he companyld have instructed companynsel to state all that he wanted to depose. That number having been done the companypany companyld have numbergrievance of numberhaving been heard. The witness produced by the appellant was number of a material character. On the facts of the case the refusal of the Controller to examine the witness in question did number companystitute a breach of natural justice. 749 C-D 750 C, An error of law on the face of an award means that the companyrt must first find whether there is any legal proposition which is the basis of the award. Reading the impugned order it was difficult to say what legal proposition it companytained in respect of which it companyld be said that there was an error on the face of the record. 750 D-E It companyld number be said that there was numberevidence that the appellant companypany wanted to pick and choose the goods. 751 G CIVIL APPELLATE JURISDICTION Civil Appeal No. 928 of 1965. Appeal by special leave from the judgment and order dated April 24, 1964 of the Calcutta High Court in Appeal from Original Order No. 269 of 1963. Bishan Narain, B. Dutta, S. C. Chagla, Ravinder Narain, for the appellant. Sen and R. H. Dhebar, for respondents Nos. 1-5. K. Sen, Rameshwar Nath, S. N. Andley, P. L. Vohra, Mahinder Narain, for respondent No. 6. The Judgment of the Court was delivered by Shelat, J.-This appeal by special leave is directed aganist the judgment and order of the High Court at Calcutta which upheld the judgment and order of the Single Judge of that High. Court dismissing the writ pettition filed by the appellant companypany. The appellant companypany was at all material times carrying on the business of manufacturing barrels and for that purpose required steel sheets. By reason of the Essential Commodities Act, 1955, the Iron and Steel Control Order, 1956 and diverse orders passed by the Iron and Steel Controller the appellant companypany companyld get supplies of steel sheets only by obtaining release orders from the Controller on stockists and importers. The Controller would direct under such a release order an importer or a stockist to supply steel sheets to the appellant companypany at rates and on terms and companyditions specified by him therein. By three such release orders, of October 28 and 29, 1960 the Controller directed the 6th respondent M s. Amichand Pyarelal Co., to supply to the appellant companypany 3406.386 metric tons of steel sheets. Prior to these three orders certain other release orders had been issued on the 6th respondent and the appellant companypany had paid large amounts in respect of steel sheets supplied thereunder on the basis of pro forma invoices issued by the 6th respondent and their sister companycerns. An amount of Rs. 7 lacs and odd said to be excess payment was claimed by the appellant companypany from the 6th respondent to recover which the appellant companypany had filed suits in August 1961 and January 1963 in the High Courts at Bombay and Calcutta. In pursuance of the said three release orders the 6th respondent sent its pro forma invoice but only for 2,168 tons and odd stating that it had already delivered between November 1961 and February 1962, 1238 tons and odd in part satisfaction of the said release orders. In these invoices the 6th respondent claimed Rs. 975.55 per metric ton which was a higher rate than the one fixed by the Controller. The appellant companypany thereupon tendered the price at the rate fixed by the Controller also deducting therefrom the said excess of Rs. 7 lacs and odd. The 6th respondent declined to accept the same whereupon the appellant companypany apprised the Controller about the difference between them. By his order dated 1/2 May, 1962 the Controller directed that the 6th respondent should charge the appellant companypany at the rate of Rs. 921 per metric ton and deduct the excess charges paid to it earlier. He also directed the 6th respondent to send to the appellant companypany revised pro forma invoice within three days. The order also stated that the appellant companypany should make arrangement for payment within three days of the receipt of the revised pro forma invoice and that if the transaction was number companypleted by May 12, 1962 due to any fault on the part of the appellant companypany he would companysider the disposal of the said sheets in favour of some other party. The Controller sent a companyy of this letter to the appellant companypany and in the numbere appended thereto informed the companypany that it should lift the materials before May 12, 1962. The 6th respondent thereafter sent its revised invoice at the rate directed by the Controller but without adjusting the said excess and insisting that 1,238 tons and odd were already delivered and that only 2,168 tons remained to be delivered. In the said invoice it also included the price of 1,238 tons at Rs. 921 per metric ton. The appellant companypany tendered its bankers slip at the rate of Rs. 921 per ton after deducting therefrom the said amount of Rs. 7 lacs and odd as excess payable to it by the 6th respondent. The 6th respondent refused to accept the said slip and instead sent on May 7, 1962 another invoice without adjusting the said excess thus, according to the appellant companypany, making it impossible for it to lift the steel sheets. The appellant companypany filed another suit in the High Court at Bombay inter alia for a mandatory injunction directing the 6th respondent to deliver the entire quantity of 3,406 tons and odd at Rs. 921 after deducting from the price therefore the said excess of Rs. 7 lacs. By his order dated 24/26 May, 1962 addressed to the 6th respondent the Controller allotted 2,168 and odd tons of the said steel sheets in favour of the 7th respondent cancelling the allotment in favour of the appellant companypany. Appended to the said order was a numbere of the Controller addressed to the appellant companypany which ran as follows Due to their number-lifting of Drum sheet 18G for 2168.25 M T against the said three release orders , they are advised to numbere that the same quantity of allotment against the said R Os has been treated as cancelled, matter is treated as closed finally. Against this order of cancellation the appellant companyn any filed a writ petition in the High Court at Calcutta. It came up for hearing on September 14, 1962 before Banerjee J. when the parties took a companysent order. The said companysent order provided , inter alia, that the Controller shall himself hear the parties and ascertain for himself which of them was at fault in making the said order of 1/2 May, 1962 ineffective. It also provided that if the Controller were to find that the appellant companypany was number at fault but that the order companyld number be companyplied with by it because of any unreasonable stand taken by the 6th respondent he should reconsider his said order of cancellation of allotment. On the other hand if he were to find that the appellant companypany was at fault he need number change the said cancellation order. In pursuance of the said companysent order the Controller fixed December 13, 1962 for hearing the parties and gave permission to them to appear through companynsel. On the 13th and the 18th December, 1962 the Controller heard the parties who appeared through companynsel and took on record companyrespondence, affidavits and other documents produced by the parties. The appellant companypany companytended that the 6th respondent failed to implement the said order and thereby made it ineffective. The companytention was that the 6th respondent was number justified in offering delivery of 2,168 and odd tons only instead of 3,406 and odd tons, that it was number justified in claiming that the delivery of the said 1,238 tons and odd was under the said release orders, that the said 1,238 tons and odd were delivered under and in pursuance of an oral agreement arrived at between Lalta Prasad Goenka, a director of the appellant companypany and one Jitpal on behalf of the 6th respondent whereunder the 6th respondent had agreed to deliver 4,500 tons from out of its free sale stock at Rs. 875 per ton, that the said 1,238 tons having been delivered under the said agreement the entire quantity of 3,406 tons and odd remained undelivered and that therefore its offer to deliver only 2,168 and odd tons was number a proper -offer. The appellant companypany also companytended that the 6th respondent failed to deduct the excess amount of Rs. 7 lacs and odd though directed by the Controller and further that it was number entitled to charge the said 1,238 tons and odd at Rs. 921 per ton as the said quantity as aforesaid was delivered under the said oral agreement and therefore companyld charge at Rs. 875 per ton. It also companytended that in spite of specific directions from the Controller the 6th respondent failed to send its said revised pro forma invoice within three days. The last companytention however was number pressed and it need number therefore detain us. At the time of the hearing the appellant companypany offered to examine the said Lalta Prasad Goenka as its witness to prove the said oral agreement. The Controller, however, refused to record his evidence. On December 21, 1964 the Controller passed his order holding the appellant companypany responsible for number carrying out his directions in the order dated 1/2 May, 1962 and held that the cancellation of allotment in favour of the appellant companypany need number be reconsidered. As regards the appellant companypanys application to examine the said Lalta Parsad, he gave three reasons for refusing it 1 that he was number in a position to take down the evidence 2 that it was number possible for him to examine him on oath or on solemn, affirmation and 3 that his evidence would number have been companyclusive as one party would have asserted and the other party would, have denied the aid agreement. Aggrieved by this order the appellant companypany filed a writ petition in the High Court at Calcutta for having the said order quashed. The writ petition was heard by Banerjee J. who dismissed it on the ground that the said order companyld number be held to be mala fide or one made at the instance of or with a view to help the 6th respondent as alleged. He held that even if the Controller was wrong in refusing to record the testimony of Lalta Prasad such a refusal was number perverse or wanting in bona fides. The learned Judge also held that the finding of the Controller that the appellant companypanys demand for inspection and survey of the goods offered by the 6th respondent was unreasonable was in the circumstances of the case neither perverse number arbitrary. He also held that though the Controllers refusal to examine Lalta Prasad was unfortunate, and the reasons given by him were open to criticism it companyld number be said to be perverse. He observed that though a different view companyld be taken on the question as to blame worthiness the view taken by the Controller companyld number be said to be arbitrary or perverse, for,- it was difficult for the Controller to decide on the evidence adduced by the parties whether the 6th respondent was guilty of number offering the full quantity of goods under the said release orders. The learned Judge added that the Controller may be right in companydemning the appellant companypany for its insistence that goods should be of standard and merchantable quality. The pendency of the appellant companypanys suit to recover the said excess may also have made it difficult for the Controller to hold that the 6th respondent was to be blamed in number adjusting the said excess in the said revised pro forma invoice. If, in these circumstances, the Controller held that the appellant companypany was more to be blamed than the 6th respondent it would number be possible to quash his order either on the ground of its being arbitrary or perverse. The learned Judge examined the appellant companypanys letters dated the 9th, the 11 th, the 17th of January, 1962 and February 6, 1962 and found that its case with regard to the oral agreement suffered from companytradictions, for, at one stage its case was that the 6th respondent had agreed to supply 4,500 tons over and above 3,400 and odd tons under the said release orders and the said 1,238 tons were delivered under the said oral agreement while in the letter of February 6, 1962 its case was that the 6th respondent was to deliver 4,500 tons which would include the said 3,400 and odd tons deliverable under the said release orders and charge at the rate of Rs. 875 per ton. Therefore, the delivery of 1,238 tons, if this letter were to be true, would be number under the oral agreement but under the release orders and companysequently the 6th respondent companyld number be said number to have offered the full quantity under the said release orders. On the other hand, there was also the letter of the 6th respondent to the Steel Minister in which it had companyplained of the appellant companypany number having taken delivery at all. If its case that 1,238 tons were delivered under the release orders, was companyrect the statement made by it to the said Minister would obviously be number companyrect. In the view of Banerjee J. the Controller took a very lenient view when he simply characterised the letter as unethical. He observed that instead of speculating about the unethical attitude of the 6th respondent the Controller companyld well have agreed to record the evidence of the said Lalta Prasad. According to the learned Judge, howsoever unfortunate that refusal was the order companyld number be held to be perverse or arbitrary and since the case of the appellant companypany regarding the oral agreement was inconsistent the Controller companyld number be blamed for number accepting it though it might be that a companyrt of law might companye to a different companyclusion. Against the order of Banerjee J. the appellant companypany filed Letters Patent Appeal which was heard by a Division Bench companysisting of Bachawat and A. K. Mukherjee JJ. Before the Division Bench the Controllers finding that it was for the first time that in its letter dated May 8, 1962 the appellant companypany made it a companydition that it would accept delivery only of goods found on inspection to be of standard and merchantable quality, was challenged. The appeal companyrt found that even before the said letter of May 8, 1962 there was companyrespondence in which allegations of the goods having become rusty and damaged were made and a demand for inspection was also made. But the appeal companyrt found that those letters indicated that the appellant companypany was agreeable to take delivery of the goods in their present companydition but was insisting upon a certificate of their being merchantable or number so as to enable it to demand rebate. Therefore the Controller was in a way right when he said that it was for the first time in its letter of the 8th May, 1962 that the appellant companypany insisted that it would accept only those goods which were of standard and merchantable quality. The appeal companyrt also rejected the companypanys companytention that until May 7, 1962 when the 6th respondent sent its revised invoice asking the appellant companypany to take delivery of the goods as it is lying with us the appellant companypany had numberchance to raise this point. The learned Judges observed that that companytention was number sustainable as the appellant companypany companyld have made a demand for the goods being of standard and merchantable quality earlier as the companyrespondence showed that it was all along aware that the said goods had become rusted. The proper thing for the appellant companypany therefore was to waive the said companydition assuming it was entitled to insist upon it and subsequently claim rebate particularly as the demand for inspection was only with the object of claiming rebate. As regards the Controllers finding that the appellant companypany was more to be blamed for the number-implementation of the order of 1/2 May, 1962, the learned Judges observed that though the Controller had directed the 6th respondent to deduct the said excess and though the 6th respondent had number done so there was difficulty in the way of the Controller to throw the blame on the 6th respondent. Neither party had asked the Controller to fix the amount of the said excess and the time when the appellant companypany should withdraw its suit. There was besides discrepancy in the amount of excess claimed by the appellant companypany. In its letter dated February 23, 1962 to the Controller the excess amount claimed was Rs. 7,40,595 whereas in its letter dated April 23, 1962 to the 6th respondent the claim was for Rs. 7,64,438.40 nP. The difficulty therefore was as to what was the amount which the 6th respondent was expected to refund. As regards the Controllers refusal to record the evidence of the said Lalta Prasad the learned Judges were of the view that it was number incumbent upon the Controller to record such evidence, that the Controller had given adequate opportunity to both the parties to adduce their respective case, that all the relevant companyrespondence and documents were produced by them before the Controller and that therefore it was impossible to hold that there was any breach of the principles of natural justice. In this view the Division Bench companyfirmed the order of Banerjee J. and dismissed the appeal. up. C.I./66-3 Challenging the order of the High Court Mr. Bishan Narain for the appellant companypany raised three companytentions 1 that the Controller did number hear the appellant companypany in full and violated the principles of natural justice by refusing to record the evidence of Lalta Prasad 2 that on the question of refund of the excess charges the Controllers order suffered from an error of law apparent on the face of the record and 3 that the finding of the Controller that the appellant companypany wanted to pick and choose was without evidence. In order to appreciate the first companytention it is necessary first to companysider the companytent of the principles of natural justice. That question has been the subject-matter of a number of decisions. It is number well-settled that while companysidering the question of breach of the principles of natural justice the companyrt should number proceed as if there are any inflexible rules of natural justice of universal application. The Court therefore has to companysider in each case whether in the light of the facts and circumstances of that case, the nature of the issues involved in the inquiry, the nature of the order passed and the interests affected thereby, a fair and reasonable opportunity of being heard was furnished to the person affected. In Local Government Board v. Arlidge l , Lord Parmoor observed as follows- Where, however, the question of procedure is raised in a hearing, before some tribunal other than a companyrt of law, there is numberobligation to adopt the regular forms of judicial procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice. In determining whether the principles of substantial justice have been companyplied with in matters of procedure regard must necessarily be had to the nature of the issue to be determined and the companystitution of the Tribunal. A similar approach to the question is also to be found in New Prakash Transport Co Ltd, v. New Suwarna Transport Co. Ltd. 2 , where this Court laid down the following guiding criterion - Rules of natural justice vary with the varying companystitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been companytravened must be judged number by any preconceived numberion of what they may be but in the light of the provisions of the relevant Act. 1 1915 A.C. 120. 2 1957 S.C.R. 98. In that case r. 73 of the Rules framed under the Motor Vehicles Act, IV of 1939 provided that the, Chairman of the Provincial Transport Authority on receipt of an appeal shall appoint the ,time and place for hearing the appeal and shall give a numberice of number less than thirty days to the appellant, the original authority and any other person interested in the appeal and on such appointed or adjourned date the appellate authority shall hear such persons as may appear and, after such further enquiry, if any, as it may deem necessary, companyfirm, vary, or set aside the order against which the appeal is preferred. At page 105 of the report the Court observed that neither the sections number the rules framed under the Act companytemplated anything like recording oral or documentary evidence in the usual way as in companyrts of law, number did they companytemplate a regular hearing as in a companyrt of justice. The Court also observed that the provisions of the Act and the Rules did number provide for any elaborate procedure as to how the parties interested had to be heard in regard to the question as to who should be granted a stage carriage permit. This Court held on a companysideration of the provisions of the Act and the Rules that though the appellate authority had to function in a quasi-judicial capacity but number as a companyrt of law, it was number required to record oral or documentary evidence and that the only requirement was that in companysidering the rival claims for the stage carriage permits the authority had to deal with such claims in a fair and just manner. Similarly, in Western Indian Match Co. v. Industrial Tribunal, Madras this Court once again stated that the Industrial Tribunal was number bound by the strict rules of procedure of the Evidence Act and that if having regard to the fact that the agreement alleged was denied by the respondents, it came to the companyclusion that proof of the agreement would number really matter, that clearly would be a decision within its jurisdiction and it would be unreasonable to invoke the prerogative jurisdiction of the High Court-under Art. 226 to overrule or reverse such a companyclusion. As in the present case the dispute between the parties there was as to the existence of an agreement said to have been arrived at before the companyciliation officer. The Tribunal had held that the agreement reached between the parties had been recorded by the companyciliation officer in some of his letters and so it was only a matter of companystruction of those letters and in that view refused to examine the companyciliation officer. It was in companynection with the Tribunals refusal to examine that officer that this Court made the aforesaid observations. See also De Verteuil v. Knaggs Anr. 2 . It is thus clear that a refusal to record oral evidence does number necessarily mean companytravention of the rules of natural justice. Mr. Bishan Narain, however, relied upon two decisions in General Medical Council v. Spackman 3 and Union of India v. R. Varma 4 . In Spackmans case 3 a registered medical practi- 1 1962 1 L.L.J. 629. 3 1943 A.C. 627. 2 1918 A.C. 557. 4 1958 S.C.R. 499. tioner who was a companyrespondent in a divorce suit, was held by the Divorce Court to have companymitted adultery with Mrs. Pepper, the respondent therein, with whom he had professional relationship and a decree nisi was pronounced which was subsequently made absolute. The General Medical Council appointed under the Medical Act, 1958 served upon Spackman a show cause numberice why his name should number be erased from the medical register for infamous companyduct and professional misconduct. At the hearing Spackmans attorney applied for permission to lead evidence to challenge the finding of adultery of the Divorce Court which evidence though available was number produced during the hearing of the Divorce Suit. The Council rejected the application on the ground that the practice followed by it did number permit leading of additional evidence and accepted the decree nisi as prima facie proof of adultery and directed that the petitioners name should be removed from the register. On appeal the House of Lords held that while the Council was entitled to regard the decree in the divorce suit as prima facie evidence of adultery, it was bound to hear any evidence tendered by the practitioner and that having refused to hear such evidence, it had number made due inquiry as companytemplated by s. 29 of the Act. It should be observed that this companyclusion was based on the provisions of s. 29 which provided for due inquiry and as is clear from page 645 of the Report on Rule 9 which, inter alia, provided that the Council shall call upon the practitioner to state his case and to produce evidence in support of it. That Rule also provided that the practitioner may address the Council either before or at the companyclusion of the evidence but only once. It is thus clear that the Councils order was set aside on the footing that it had failed to hold due inquiry within the meaning of s. 29 and the said Rule, as companytrary to the provisions of that Rule the Council had prevented Spackman from leading evidence. The decision in Union of India v. T. R. Varma l was in companynection with an inquiry held under Art. 311 of the Constitution. The observations made in that case therefore would bear numberanalogy to the inquiry held by the Controller in the instant case. Neither of those two decisions therefore can help Mr. Bishan Narain. It is clear from the said companysent order that the Controller was number a judicial tribunal in the sense of a Court of law and though the inquiry held by him was a quasi-judicial. inquiry it certainly was number a trial. It was companyfined to one question only, viz., whether he ,should reconsider the order made by him cancelling the allocation in favour of the appellant companypany. In order to decide that question he had to ascertain who was to be blamed as between the appellant companypany and the 6th respondent for number-implementation of his order dated 1/2 May, 1962. No doubt the companysent order required him to hear the parties. But it is obvious that the order never companytemplated that he should follow an elaborate procedure and take 1 1958 S. 99. oral evidence of witnesses tendered by the parties. The order did number lay down any such procedure or any procedure at all, with the companysequence that he was left to devise his own procedure. So long as the procedure devised by him gave a fair and adequate opportunity to the parties to put forward and explain their respective case such procedure would be sufficient and cannot be challenged on the ground of any companytravention of natural justice. The dispute between the parties was as to the existence of an oral agreement under which the 6th respondent was to deliver 4,500 tons of steel sheets. From that arose the question whether the delivery of 1,238 and odd tons was made under the said alleged agreement or under the said release orders. It is number disputed that the Controller heard the parties on the 13th and the 18th December, 1962 and the respective cases of the parties were put forward before him through companynsel who, we have numberdoubt, made their submissions fully. The said Lalta Prasad was present at the hearing presumably giving instructions to the companypanys companynsel. He had therefore ample opportunity to put forward the case of the appellant companypany in regard to the said alleged oral agreement. The parties also produced before the Controller such companyrespondence and documents as they thought proper and necessary to establish their case. There is numberdoubt that the letters already referred to above in which the appellant companypany has set out the said alleged agreement were produced before the Controller and companysidered by him. In these circumstances it is difficult to appreciate what difference it would have made if Lalta Prasads oral testimony had been recorded. The letters presumably companytained all that he had to say in regard to the alleged agreement arrived at between him and the said Jitpal. Obviously he companyld number have added anything to those letters number companyld he have deposed companytrary to them. This position seems to have been realised by the appellant companypany. It was therefore that though the Controller had rejected the application for recording the evidence of Lalta Prasad numberprotest was made by the appellant companypany or on its behalf at that stage. No such protest was also placed on record between the 18th and 21st December, 1962 when the Controller declared his order. It was only on the 5th January, 1963 that the attorneys of the appellant companypany companyplained for the first time about the Controllers decision rejecting the application to record Lalta Prasads evidence alleging that the said order of the Controller was mala fide. The appellant companypany filed the present writ petition on January 7, 1963. It would appear from these facts that the grievance of Lalta Prasad number being allowed to give evidence was made in the letter of the 5th January, 1963 to bolster up the case in the proposed writ petition that the said order of the Controller was perverse and mala fide. It is true that the Controller rejected the appellant companypany is case about the said oral agreement on the ground that the companyrespondence indicated that it had been putting up its case inconsistently. It may perhaps be said that if Lalta Prasad had been examined he might have explained the inconsistency, But as already stated Lalta Prasad had ample opportunity through his companynsel to explain the said inconsistency. If that inconsistency had been explained by the companypanys companynsel ,during the hearing it cannot be doubted that the Controller would have companysidered such explanation tendered by companynsel. That being so, the refusal of the Controller to record Lalta Prasads evidence cannot be said to have precluded the companypany from offering an explanation of the said inconsistency. Nor can it be said that the refusal amounted to any breach of natural justice. Since the procedure for inquiry was left to be devised by the Controller and the procedure followed by him was number in any way in companytravention of the said companysent order number companytrary to natural justice the companytention urged by Mr Bishan Narain must be rejected. The next companytention of Mr. Bishan Narain was that on the question of refund of the excess charges the impugned order suffered from an error of law apparent on the record. The question is what is an error of law apparent on the record. In Champsey Bhara Co. v. Jiraj Palle Spinning and Weaving Co. . Lord Dune-din observed that an error on the face of an award means that the companyrt must first find whether there is any legal proposition which is the basis of such an award. He also said that where an award is challenged upon such a ground it is number permissible to read words into it or to draw inferences and the award or the order must be taken as it stands. Tucker J. said the same thing in James Clark Brush Materials Ltd v. Carters Marchants Ltd. 2 Reading the impugned order it is difficult to say what legal proposition it companytains in respect of which it can be said that there is an error of law apparent on the record. The issue before the Controller was whether in refusing to give the refund of the said excess the 6th respondent was guilty of obstructing the implementation of the order dated May 1/2, 1962 or of preventing the appellant companypany from taking delivery of the said goods. It is true that the Controller had on more then one occasion directed the 6th respondent to deduct the said excess from its pro forma invoice and the 6th respondent had in fact expressed -its willingness to deduct it. The dispute between the the parties was within a circumscribed companypass viz., whether the appellant companypany should first withdraw the suit. The appellant companypany would number withdraw the suit and hence the companytroversy. But then it is number possible to say that there was numberdifficulty in the way of the 6th respondent in deducting straightaway the said excess from its invoice, for, as already stated, the appellant companypany, had stated different sums of such excess at different times. The Controller had number fixed the exact amount of the said excess an number directed as to when and on what companydition the appellant companynpanys suit should be withdrawn. If in these circumstances the Controller finds that the appellant companypany would number have insisted 1 1923 A.C. 480. 2 1944 1 K.B. 566. on the deduction before withdrawing its suit, even if a companyrt were to companye to a different companyclusion it certainly is number a case of an error apparent on the face of the record. That takes us to the third and the last companytention, viz., that the impugned order that the appellant companypany wanted to pick and choose was without evidence. The order was based on the finding that it was for the first time in its letter dated May 8, 1962 that the appellant companypany claimed that it would only accept goods of standard and merchantable quality. That companyclusion, in our view, cannot be said to be without evidence. As explained by the High Court, the appellant companypany, numberdoubt, had in its letter of April 23, 1962 claimed survey and inspection but that letter does number show that the appellant companypany was number willing to accept the goods in the companydition in which they were in the 6th respondents godown. The demand for inspection and survey was made with a view to claim rebate in the event of the goods being found either rusty or in damaged companydition. But in the letter of May 8, 1962 it would seem that the appellant companypany stiffened its attitude and laid down the companydition that it would accept such of the goods only as were of standard and merchantable quality. As already stated, long before May 8, 1962 the appellant companypany was well aware that the goods had become rusted as they were lying for a long time in the godown. Even the 6th respondent had companyplained that the goods were getting rusted. Yet, at numbertime before May 8, 1962 the appellant companypany had insisted that it would accept only those goods which were of standard and merchantable quality. It may perhaps be that the Controller companyld have taken the view that since the appellant companypany required the goods for manufacturing barrels, it was entitled to have goods of merchantable quality. At the same time it is also possible to take a different view, viz., that the appellant companypany companyld have abided by the Controllors directions in his order dated 1/2 May 1962 and companyld have accepted delivery under protest and if necessary claimed damages. But merely because there was the possibility of two views being taken it would number be possible to say, as was companytended in the High Court, that the order was perverse. In any event, since it was for the first time in its letter of May 8, 1962 that the aforesaid demand was made by the appellant companypany it is impossible to say that this part of the order was without any evidence and therefore liable to be quashed. These were the only companytentions raised on behalf of the appellant companypany. For the reasons aforesaid it is number possible to uphold any one of them. The result is that the appeal fails and is dismissed. It appears to us, looking at the entire record of the case that the 6th respondent also was number altogether free from blame. In the circumstances, we decline to make any order as to companyts.

V. RAMANA, J. This appeal by special leave arises out of the Judgment and order dated 26th March, 2008 passed by the High Court of Uttarakhand in a Motor Accidents Claims Appeal No. 484 of 2006. The appellant-claimant is the son of deceased Suresh Chandra Jain who died in a road accident. He filed a claim petition before the Motor Accidents Claim Tribunal, Dehradun seeking companypensation of an amount of Rs.36,00,000/- on the basis that the deceased who was aged 55 years on the date of accident, was working as Executive Engineer with the Public Works Department of the Government of Uttarakhand and was earning a salary of Rs.26,950/- per month. The Tribunal, after taking into account the evidence on record and also the evidence of one eyewitness to the accident, namely, Ajay Bansal PW 2 , came to the companyclusion that the accident took place due to rash and negligent driving of the bus driverRespondent No. 2 and as such, the appellant is entitled for companypensation. According to the original salary certificate of the deceased issued by the Executive Engineer, Public Works Department, Uttarakhand, the gross salary of the deceased was found to be Rs.26,950/- and after various deductions towards GPF, House Rent, GIS and Income Tax, the take home salary was determined as Rs.15,784/- p.m. The Tribunal companysidering the fact that the deceased was 55 years old, as evidenced by the documentary evidence, applied the multiplier 8. Thus, taking into companysideration his age and monthly salary at Rs.15,784/-, the Tribunal calculated the loss of dependency as Rs.10,10,176/- 2/3rd of Rs.15,784 x 12 x 8 . In addition to that Rs.5,000/- was granted towards funeral expenses and Rs.10,000/- towards mental agony and finally awarded Rs.10,25,176/- as companypensation with interest payable 5 p.a. from the date of institution of claim petition till the date of payment. The Tribunal also fastened the liability of making payment of companypensation on the Delhi Transport Corporation-Respondent No. 1 as the bus which caused accident belongs to them. Against the aforesaid order of the Tribunal, both Delhi Transport Corporation as well as the appellant herein have filed their respective appeals before the High Court. The Delhi Transport Corporation pleaded that the bus was insured with National Insurance Company, therefore, the liability of making payment of companypensation lies on the Insurance Company. On the other hand, the appellants appeal was for enhancement of companypensation. The High Court allowed the appeal of the Delhi Transport Corporation and directed the National Insurance Company to pay the companypensation amount. As far as the appeal filed by the appellant herein is companycerned, the High Court was of the view that the amount awarded by the Tribunal as companypensation was perfectly justified. It accordingly dismissed the appellants appeal. The appellant, number satisfied with the quantum of companypensation and the rate of interest awarded by the Courts below, filed this appeal. The companytention of the companynsel for the appellant is that in deciding the take home salary of the deceased, the Tribunal as well as the High Court erroneously deducted from the salary an amount of Rs.11,140/- companytributed by the deceased towards various heads such as General Provident Fund, house rent, insurance, income tax etc. He submitted that these companytributions should also be treated as the income of the deceased. On the other hand, learned companynsel for the respondent-Insurance Company supported both the judgments of the Tribunal and the High Court. In view of the companytentions raised on behalf of either side and the material placed before us, the main question that arises for companysideration is whether for the purpose of deciding net monthly income of the deceased, the amount of voluntary companytributions he made towards General Provident Fund etc., should be included or excluded from his salary? We have heard learned companynsel for the parties and perused the orders passed by the Tribunal and the High Court. It is number in dispute that the deceased was getting an amount of Rs.26,924/- as monthly salary and Rs.11,140/- was being deducted under various heads such as GPF, House Rent, I.S. and Income Tax. After taking into account these deductions, the tribunal arrived at a companyclusion that the net salary of the deceased is Rs.15,784/- and awarded a total companypensation of Rs.10,25,176/-, including Rs.5,000/- towards funeral expenses and Rs.10,000/- towards mental agony. The High Court did number interfere with the judgment of the Tribunal. This Court in Shyamwati Sharma Ors. Vs. Karam Singh Ors. 2010 12 SCC 378, while companysidering the issues of deduction of taxes, companytributions etc., for arriving at the figure of net monthly income, held that while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc., should number be excluded from the income. The deduction towards income tax surcharge alone should be companysidered to arrive at the net income of the deceased. In the present case, there is numberdispute about of the salary of the deceased. As per salary certificate, his monthly income and deductions are as under Monthly Income Rs. 26,950-00 Deductions Provident Fund 8,000-00 House Rent 525-00 I.S. 120-00 Income Tax 2,500-00 So, from the above table, it is clear that except an amount of Rs.2,500/- towards Income Tax, rest of the amounts were voluntarily companytributed by the deceased for the welfare of his family. Considering the decision of this Court in Shyamwati Sharma Ors., supra , in our opinion, except companytribution towards Income Tax, the other voluntary companytributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take home salary. Hence, the take home salary of the deceased companyes to Rs.24,450/- which can be rounded to Rs.25,000/- Accordingly, we determine the monthly take home salary of the deceased as Rs.25,000/-. Applying multiplier 8, the appellant is entitled to the companypensation as under Financial Loss Rs. 16,00,000-00 2/3rd of 25,000 x 12 x 8 Funeral Expense Rs.

These appeals are directed against orders dated 28th August, 2001 and 21st November, 2001, passed by the National Consumer Disputes Redressal Commission, New Delhi, hereinafter referred to as the Commission respectively in Original Petition No. 146 of 1994 and Misc. Petition No. 56 of 2001. By the first order, the Commission has dismissed the companyplaint filed by the appellant herein for numberprosecution and by the latter order, the application filed for recall of the said order has also been dismissed. We have heard learned companynsel for the appellant. Despite service of numberice, numberone has appeared on behalf of respondents No. 1 and 2. Respondent No. 3 was deleted from array of parties vide order dated 11th January, 2007. It appears that the companyplaint filed some time in the year, 1994, companyld number be taken up for disposal because of difficulty in service of numberice on respondents No. 1 to Ultimately, respondent No. 3 companyld be served by publication. 2/- Crl.A. 3327-28/2002contd When the matter came up for companysideration before the Commission on August 28, 2001, a request for adjournment was made by companynsel for the companyplainant on the ground that he had been engaged recently and was number fully prepared to argue the case. The request was turned down by the Commission on the ground that the matter had been pending for the last seven years without any progress and there was frequent change of companynsel. While dealing with application for recall of the said order, the Commission, without attaching an importance to the negligence on the part of the companynsel, held that the negligence so pleaded was a mere excuse to somehow seek an adjournment. Nevertheless, the Commission did observe that negligence on the part of a lawyer may amount to deficiency in service on his part, but it companyld number be treated as a sufficient ground for recall of the said order. It is true that it cannot be laid down as an absolute rule that change of an Advocate at any stage of the proceedings in Court is a valid ground for adjournment of hearing yet in certain situations the Court may, in the interest of justice, entertain such a prayer, the underlying object being that an innocent litigant may number suffer injustice because of the default of his chosen Advocate.

SURINDER SINGH NIJJAR, J. This appeal under Section 15Z of the Securities and Exchange Board of India Act, 1992 the SEBI Act is directed against the judgment and final order of the Securities Appellate Tribunal, Mumbai SAT dated 19th June, 2013 rendered in Appeal No.3 of 2013, by which the appeal filed by M s. Akshya Infrastructure Private Limited the respondent herein against the directions issued by SEBI on 30th November, 2012 has been allowed. The fundamental issue which arises in this appeal is whether an open offer voluntarily made through a Public Announcement for purchase of shares of the target companypany can be permitted to be withdrawn at a time when the voluntary open offer has become uneconomical to be performed. In this case, the respondent herein, M s Akshya Infrastructure Pvt. Ltd., is a part of the Promoter Group of MARG Limited the Target Company . For the years 2006-07, 2007-08 and 2010-11, the gross acquisition by the Promoter Group of shares in the Target Company was as under Financial Year Percentage Date triggered on 2006-07 14.34 30.03.2007 2007-08 5.64 12.10.2007 2010-11 7.11 19.02.2011 As a companysequence of the foregoing acquisitions, the acquirers breached the 5 creeping acquisition limit and were required to companyply with the provisions of Regulation 11 of the SEBI Substantial Acquisition of Shares and Takeovers Regulations, 1997 hereinafter referred to as the Takeover Regulations . On 20th October, 2011, the respondent made a voluntary open offer through a Public Announcement in major National Newspapers, under Regulation 11 of the Takeover Regulations wherein the public shareholders of the Target Company were given an opportunity to exit at an offer price of Rs.91/- per equity share. This price represents a premium of 10.3 over the average market closing price for the two weeks preceding the Public Announcement. The tendering period was scheduled to companymence on 1st December, 2011 and companyclude on 20th December, 2011. The companysideration for the tendered shares was to be paid on or before 4th January, 2012. As on the date of the open offer, the list of Promoters Promoter Group Entities was as under- Sl. No. Name Mr. G.RK. Reddy Mr. G. Raghava Reddy Ms. V.P. Rajini Reddy Mr. G. Madhusudan Reddy GRK Reddy Cons HUF M s. Global Infoserve Ltd. M s. Marg Capital Markets Limited M s. Exemplarr Worldwide Limited M s. Marg Projects and Infrastructure Limited formerly Marg Holdings and Financial Services Limited M s. Akshya Infrastructure Private Limited However, due to certain events, which have been highlighted by both the parties, the respondent by letter dated 29th March, 2012 through M s. Motilal Oswal Investment Advisors P Ltd., the Managers to the Issue hereinafter referred to as the Merchant Banker , addressed to SEBI, sought to companytend that the open offer in question had become outdated, thereby outliving its necessity and, therefore, the same ought to be permitted to be withdrawn. It was also companytended that the amount of Rs.17.46 crores deposited by the respondent in an escrow account towards the open offer ought to be allowed to be withdrawn. The letter emphasizes that the public announcement was in nature of a voluntary open offer under Regulation 11 of the Takeover Regulations for companysolidation of shareholding of the Promoter Group in the Target Company. The offer price of Rs.91/- per equity share of the Target Company was aimed at presenting a companymercially reasonable opportunity to the public shareholders to exit and at the same time it was meant to companysolidate the shareholding of the promoter in the Target Company. It was further stated that due to the unjustified delay by SEBI in taking a decision as to whether to approve the draft letter of offer has rendered the entire open offer exercise academic and meaningless. It was claimed that the transaction envisaged by the respondent is numberlonger justifiable on any ground, including the grounds of economic rationale and companymercial reasonableness. The respondent sought the withdrawal of open offer made under the public announcement in terms of Regulation 27 of the Takeover Regulations. The exact prayer made by the respondent was as follows- Consequently, we hereby seek withdrawal of the open offer made under the public announcement in terms of Regulation 27 of the Takeover Regulations the benefit of which companytinue to accrue to us in terms of Regulation 35 2 of the SEBI Substantial Acquisition of Shares and Takeovers Regulations, 2011 New Takeover Regulations . Regulation 23 1 d of the New Takeover Regulations equally empowers withdrawal of an open offer. The appellant by letter dated 30th November, 2012 companyveyed its companyments in terms of the proviso to Regulation 16 4 of the Takeover Regulations on the draft letter of offer. Certain information was sought in the aforesaid letter. No reference was made in this letter with regard to the request made by the respondent for permission to withdraw the open offer. Rather it was stated as under Please numbere that failure to carry out the suggested changes in the letter of offer as well as violation of provisions of the Regulations will attract appropriate action. Please also ensure and companyfirm that apart from above, numberother changes are carried out in the letter of offer submitted to us. The aforesaid companyments of SEBI were challenged by the respondent before SAT in Appeal No.3 of 2013. The respondent claimed that the impugned directions, ostensibly in the form of companyments and observations on the draft letter of offer, reject the plea of the petitioner that the delay caused by SEBI in clearance of the draft letter of offer, number renders the open offer unviable and academic. Further, the impugned directions purport to bind the appellant and thereby companystitute an order by which the respondent was aggrieved and necessitated the appeal before the SAT. In the appeal before SAT, the respondent claimed that the directions companytained in the impugned letter of SEBI dated 30th November, 2012, incorrectly allege that prima facie requirement to make an open offer was triggered by the promoters and the promoter group entities of the Target Company Promoter Group under Regulation 11 1 of the Takeover Regulations on three past occasions, viz. March 30, 2007, October 12, 2007 and February 19, 2011 Alleged Triggers . It was further claimed that the directions to revise the offer price, on account of the requirement to make open offers pursuant to the alleged triggers was illegal and without jurisdiction. It was also claimed that the directions companytained in the impugned letter has caused severe civil companysequences to the respondent. It was also claimed that the submissions on the issues presented by the respondent before the appellant have neither been companysidered number appreciated. The appeal was companytested by the appellant by filing a detailed affidavit on 12th April, 2013. As numbericed above, the aforesaid appeal has been allowed by SAT in terms of prayer clause a , b and c of Para 7 of the appeal filed by the respondent, which are as under- That this Honble Tribunal be pleased to set aside the Impugned Direction That this Honble Tribunal be pleased to order and direct the respondent to allow the appellant to withdraw the open offer without any adverse orders or directions against the appellants or the Promoter Group That this Honble Tribunal be pleased to order and direct the respondent to allow the appellant to withdraw the amount of Rs.17.46 crores deposited in escrow in lieu of the Open Offer. It was, however, made clear that SAT has number made any observation on the merits of the issue regarding the three alleged triggers and the companytentions of the parties in this regard were kept open. Aggrieved by the aforesaid impugned judgment, SEBI has filed the present Civil Appeal. We have heard the learned companynsel for the parties at length. Mr. C.U. Singh, learned senior companynsel appearing for the appellant, has submitted that the issues raised by the appellant herein are squarely companyered against the respondent by an earlier judgment of this Court in Nirma Industries Ltd. Anr. Vs. Securities and Exchange Board of India1. At this stage, Mr. R.F. Nariman, learned senior companynsel appearing for the respondent, has raised certain preliminary objections with regard to the maintainability of the appeal. He submits that the directions issued by the SEBI are based on a misconception of the law applicable to the peculiar facts of this case. He submits that firstly this is a case where the respondent had made voluntary open offer. It was number a case of an open offer made because of a triggered mechanism under the Takeover Regulations secondly since the open offer was a pure and simple voluntary offer, numberprejudice has been caused to any shareholder thirdly the present case does number fall within the ambit of Regulation 27 of Takeover Regulations. According to Mr. Nariman, Regulation 27 ought to be read in a manner that it would only govern mandatory open offers and number voluntary open offers fourthly SEBI has without any justification intermingled acquisition of shares by the respondent on the three earlier occasions in 2006-07, 2008-09 and 2009-10 fifthly SEBI unjustifiably and arbitrarily took 13 months to offer companyment s on the draft letter of offer. Even then the clarification sought by the appellant pertained to the past alleged triggers which had numberconnection with the voluntary open offer. It is submitted that even if the case of the respondent falls within the ambit of Regulation 27, the withdrawal is permissible in such circumstances which in the opinion of SEBI the Board merit withdrawal sixthly the judgment in Nirma Industries supra is distinguishable lastly the judgment in Nirma Industries supra is incorrect and needs reconsideration. Mr. C.U. Singh, learned senior companynsel appearing for the appellant, has submitted that the companyrespondence exchanged between the parties would show that the delay in companysideration of the letter of offer was caused by the respondent by number giving the necessary information. He relies on the voluminous companyrespondence between the parties in support of his submission which, if necessary, shall be companysidered later. His second submission is that the request for withdrawal of open offer is to be companysidered strictly under the provision of Regulation 27 of the Takeover Regulations. The respondent had made a Public Announcement on 20th October, 2011 which clearly informed the public shareholders of the Target Company that they were being given an opportunity to exit at an offer price of Rs.91/- per equity share, which represented a premium of 10.3 over the average market closing price for the two weeks preceding the Public Announcement. This Public Announcement and the Public Offer was sought to be withdrawn on 29th March, 2012. He points out that in the aforesaid letter the request for withdrawal is specifically made under Regulation 27 of the Takeover Regulations. Therefore, Mr. Nariman cannot be permitted to, number, submit that Regulation 27 is number applicable to the open offer in the present case. Mr. C.U. Singh then submits that the respondents have companysciously proceeded with an open offer and they have rightly number been permitted to withdraw the same by the appellant. The next submission of Mr. C.U. Singh is that Regulation 27 deals with only withdrawal of Public Offer and number withdrawal of Public Announcement. In any event, according to learned senior companynsel, submission with regard to withdrawal of Public Announcement has been made, only, at the time of arguments before this Court. It was neither pleaded number raised before the SEBI SAT, number even in the companynter affidavit before this Court. He next submitted that under the provisions of Regulation 27, public offer is a rule and withdrawal is an exception. Relying on the interpretation of Regulation 27 in Nirma Industries Ltd. supra , he submits that an offer can be permitted to be withdrawn only if it becomes virtually impermissible to carry out. Permitting public offers once made to be withdrawn on the ground that it has become uneconomical would companypromise the integrity of the Securities Market. This would be companytrary to the scheme of the Takeover Code. Mr. C.U. Singh then submits that there is numberdistinction under Regulation 27 between the voluntary open offer and mandatory open offer which is the result of a triggered acquisition. Relying on Regulations 11 to 14 of the Takeover Regulations, he submits that all the different types of open offers are set out therein. Each one of the open offers has the same effect on shareholders and the market. Therefore, the provisions companytained in Regulation 27 have to be strictly adhered to in companysidering the request for withdrawal of the open offer. It is further submitted that the appellant had fixed the offer price under the relevant regulations and in accordance with the law laid down by this Court in Clariant International Ltd. Anr. Vs. Securities Exchange Board of India2. According to Mr. C.U. Singh, in numbermal circumstances, withdrawal can only be made under Regulation 27 1 b , c and d . He submits that in the letter dated 29th March, 2012, the respondent claims that the offer has become outdated due to the sheer efflux of time. The second reason given is the delay in clearance of open offer from SEBI. The letter also indicates that the respondent does number agree with the views of the SEBI on the fact situation. Another reason given is that even if the SEBI were to approve the draft letter of offer today, the open offer exercise would be entirely academic and meaningless. Another reason given is that the transaction then envisaged by us is numberlonger justifiable on any ground including grounds of economic rationale and companymercial reasonableness. All these factors, according to Mr. C.U. Singh, will number be companyered by any of the clauses in Regulation 27 1 b c d . He then submitted that even if there is a delay by SEBI, the ordinary investor in shares of the Target Company should number be made to suffer. According to Mr. C.U. Singh, the companytroversy raised in the appeal is squarely companyered against the respondent by judgment of this Court in Nirma Industries Ltd. supra . Mr. Nariman has rebutted the aforesaid submissions of Mr. C.U. Singh. He submits that the single most important distinction between Nirma and this case is that it pertains to a voluntary public offer. This Court had numberoccasion to deal with a voluntary public offer in Nirma Industries Ltd. supra . In reply to the other submissions made by Mr. C.U. Singh, Mr. Nariman has also relied on some companyrespondence. He has also relied upon a table to substantiate the submission that the law laid down in Nirma Industries would number be applicable in the facts and circumstances of this case. Dealing with the issue of delay, it is submitted by Mr. Nariman that there was an unjustifiable and inexplicable delay by SEBI in issuing its companyments on the draft letter of offer. In support of this submission, he has relied on some companyrespondence. He relies on letter dated October 20, 2011, whereby the respondent made a voluntary open offer by Public Announcement under Regulation 11 of the Takeover Regulations. He points out that Clause 11.4 of the Public Announcement clearly states that voluntary open offer can be withdrawn by the respondent at any time. He then points out that on 25th October, 2011, SEBI called upon the respondent to provide information on the changes in shareholding and capital build up of the Target Company, along with companypliance of the SEBI Regulations. He submits that although the information sought pertains to the earlier acquisition it was duly provided on November 4, 2011 and November 8, 2011. Mr. Nariman submits that under Regulation 18 1 of the Takeover Regulations, the draft letter of offer is required to be filed with SEBI well within 14 days from the date of the Public Announcement. Once the letter of offer is filed, SEBI was required to dispatch the same to the shareholders immediately after 21 days. During 21 days, SEBI is permitted to stipulate the changes required to be made in the letter of offer which the Merchant Banker and the Acquirer shall incorporate in the letter of offer, before it is dispatched to the shareholders. In case, SEBI receives a companyplaint or it initiates an enquiry or investigation in respect of public offer, it can call for a revised letter of offer. In this case, he submits that the draft letter of offer was given on October 28, 2011 well within 14 days period stipulated under Regulation 18 1 . But SEBI did number issue its companyments on the draft letter of offer within 21 days, as required. Not only there was a number-compliance of Regulation 18 1 but there was numberoccasion to invoke proviso to Regulation 18 2 . SEBI did number inform or advise the respondent to revise the draft letter of offer on account of any inadequacy in the disclosure made by the respondent in the draft letter of offer in respect of the voluntary offer. All the queries were related to the past alleged triggers. These alleged triggers were wholly unrelated to the voluntary open offer for which the draft letter of offer was filed with the appellant. He then pointed out that by letter dated 17th November, 2011, the appellant again sought the same clarification on the alleged triggers, as stated in its letter dated November 11, 2011. He submitted that the Merchant Banker and the respondent provided all explanation regarding these acquisitions on November 28, 2011. The letter dated November 24, 2011 of the respondent was forwarded to the appellant by the Merchant Banker on November 28, 2011. This letter gave date wise explanation on all the issues raised as to why numberopen offer was made pertaining to the alleged triggers, as there was numberviolation of Regulation 11 1 and 11 2 of the Takeover Regulations. This explanation was reiterated on December 14, 2011 by the respondent Promoters but there was numberresponse from the appellant to any of the aforesaid letters. This led the respondent to a reasonable belief that the explanation had been accepted. Subsequently, there was a telephonic request by the appellant to provide the same information on the alleged triggers in various formats. The respondent duly re-arranged the same information in the desired format and provided the same to the appellant on January 13, 2012, January 16, 2012 and February 3, 2012. Inspite of all this, still there were numbercomments from the SEBI. Mr. Nariman emphasized that the unjustifiable, inexplicable and inordinate, delay on the part of the appellant in issuing companyments on the draft letter of offer created a situation wherein it was impossible for the respondent to implement the voluntary open offer. By that time, the underlying decision to companysolidate shareholding had become infructuous by sheer efflux of time. It was under these circumstances that the respondent intimated its decision to withdraw its voluntary open offer and sought withdrawal of the same in terms of the Regulation 27 of the Takeover Regulations. It was pointed out by Mr. Nariman that the respondent specifically and expressly sought opportunity of a personal hearing on the aforesaid request for withdrawal, the appellant did number revert on the request. The respondent once again furnished the same information on the alleged triggers in different formats as required by the appellant through companymunications dated April 12, 2012 April 20, 2012 May 10, 2012 May 21, 2012 June 6, 2012 and July 5, 2012. After a period of more than 13 months, from the date of filing of the draft letter of offer and after more than 8 months from the date of request for withdrawal, the appellant issued the impugned letter dated November 30, 2012. Mr. Nariman points out that the directions issued in the impugned letter are wholly unjustified. He points out to the following two directions - Go ahead with the voluntary open offer on account of some alleged triggers for creeping acquisitions under Regulation 11 of the Takeover Code, 1997 in the past i.e. 2006-07 2007-08 and 2010-11. b make an open offer with upward revision in price per share. The share prices offered by the respondent in 2009 were RS.91.00 per equity share and as on date the prices is RS.315.90 per equity share. Mr. Nariman submitted that SAT without going into the merits and demerits of the alleged earlier acquisitions, has left it open for SEBI to take appropriate action in accordance with law with regard to the aforesaid three acquisitions. Therefore, clearly the aforesaid three acquisitions have numberconnection whatsoever with the voluntary offer under companysideration in these proceedings. The next submission of Mr. Nariman is the foundation of all his other submissions. According to Mr. Nariman, there is a fundamental difference between a mandatory public offer and a voluntary open offer. It cannot be placed on the same pedestal. According to learned senior companynsel, in a mandatory public offer there exists an underlying transaction which triggers the Takeover Code under which the shareholders obtain a right to exit from the companypany. However, in a voluntary open offer, numbersuch right accrues to the shareholders to exit the companypany, since the offer is number the result of a triggered acquisition. In the present case, the action of SEBI, according to Mr. Nariman, is companytrary to Regulation 18. The letter of offer was number dispatched to the shareholders as per Regulation 18 1 . Regulation 15 4 deems that the offer is made on the date on which the Public Announcement has appeared in any newspaper. But according to Mr. Nariman, this deeming fiction is for the purpose of price fixation for the offer. It has numberhing to do with Regulation 18 which is to dispatch the actual offer to the shareholders. Therefore, according to Mr. Nariman, reliance placed by Mr. C.U. Singh on the expression offer once made in Regulation 27 is misconceived. This expression has to be understood in terms of Regulation 18. Since Regulation 18 had number been companyplied with and there was numberdispatch of the letter of offer to the shareholders, there was numberquestion of any prejudice being caused to the interest of the shareholders. Mr. Nariman then submits that because of the inaction on the part of SEBI, the respondent would be squarely companyered under Regulation 27 1 b . The approval of the letter of offer by the appellant is statutory in nature. Since it had number been granted within the stipulated period of time, the respondent was entitled to assume that it had been refused. According to Mr. Nariman, it has been erroneously submitted by Mr. C.U. Singh that the claim of the respondent is number companyered under Regulation 27 1 b . Mr. Nariman then submits that the judgment in Nirma Industries is number applicable in the facts and circumstances of this case. Finally, he has submitted that the judgment in Nirma Industries supra requires reconsideration. In support of this submission, he submits that Regulation 27 has to be interpreted by keeping in mind the earlier Regulation 27 1 a . In Nirma Industries, this Court has held that Regulation 27 b , c and d are all in the nature of impossibility. Mr. Nariman made a mention about Regulation 27 1 a which was omitted by the SEBI Substantial Acquisition of Shares and Takeovers Second Amendment Regulations, 2002 with effect from September 9, 2002. Prior to deletion, it read as under - a the withdrawal is companysequent upon any companypetitive bid, Based on this, he submits that economic viability of public offer was the genus of Regulation 27. The facts of this case would clearly place the request of the respondent for withdrawal of the public offer in the realm of impossibility. Mr. Nariman has submitted that for the interpretation of Regulation 27, the ejusdem generis principle would number apply as there is numbercommon genus between Clauses 27 1 b c and d . Mr. C.U. Singh in rejoinder has submitted that in view of the law laid down in Nirma Industries, the public offer made by the respondent cannot be permitted to be withdrawn. Earlier incidence of the alleged triggers can be relied upon. According to him, the price has to be fixed on the basis of the public announcement offer. He submits that Regulation 18 1 talks of 14 days of the Public Announcement. Furthermore, public offer cannot be said to be made only on dispatch of the letter of offer to the individual shareholders. The impact on the securities market would follow the public announcement. He reiterates that even the withdrawal letter seeks permission to withdraw the Public Offer under Regulation 27. Finally, he submits that the interpretation of Regulation 27 rendered in Nirma Industries Ltd. supra is companyrect. It fully applies to the facts of the present case. It is neither distinguishable number does it require reconsideration. We have companysidered the submission made by the learned companynsel for the parties. Factually, it cannot be denied that in the years 2006-07, 2007- 08 and 2010-11, the respondent had acquired shares in excess of 5 which breached the 5 creeping acquisition limit. In our opinion, the respondent was required to companyply with Regulation 11 and make a Public Announcement to acquire shares in accordance with law. The respondent admittedly number having companyplied with Regulation 11, in our opinion, the appellant was perfectly justified in taking the number-compliance into companysideration whilst companysidering the feasibility of the public offer made on 20th October, 2011. With regard to delay, we do number find much substance in the submission of Mr. C.U. Singh. Mr. Singh has sought to explain the delay on the ground that information sought by the appellant was number given by the respondent. In our opinion, this was numberground for the appellant to delay the issuance of companyments on the letter of offer, especially number for a period of 13 months. In the event the information was number forthcoming, the appellant had the power to refuse the approval of the public offer. It is true that under Regulation 18 2 , SEBI was required to dispatch the necessary letters to the shareholders within a reasonable period. It is a matter of record that the companyments were number offered for 13 months. Such kind of delay is wholly inexcusable and needs to be avoided. It can lead to avoidable companytroversy with regard to whether such belated action is bona fide exercise of statutory power by SEBI. By adopting such a lackadaisical, if number callous attitude, the very object for which the regulations have been framed is diluted, if number frustrated. It must be remembered that SEBI is the watchdog of the Securities Market. It is the guardian of the interest of the shareholders. It is the protective shield against unscrupulous practices in the Securities Market. Therefore, SEBI like any other body, which is established as a watchdog, ought number to act in a lackadaisical manner in the performance of its duties. The time frame stipulated by the Act and the Takeover Regulations for performing certain functions is required to be maintained to establish the transparency in the functioning of SEBI. Having said this, we are afraid such delay is of numberassistance to the respondent. It will number result in nullifying the action taken by SEBI, even though belated. Ultimately, SEBI is charged with the duty of ensuring that every public offer made is bona fide for the benefit of the shareholders as well as acquirers. In the present case, SEBI has found that permitting the respondent to withdraw the public offer would be detrimental to the overall interest of the shareholders. The only reason put forward by the respondent for withdrawal of the offer is that it is numberlonger economically viable to companytinue with the offer. Mr. Nariman has referred to a tabular statement and data to show that there is numbersubstantial variation in the share prices that ensued making of the public offer. Having seen the table, we find substance in the submission of Mr. Nariman that there is hardly any variation in the shares of the Target Company from 20th October, 2011 till 30th November, 2011. The variation seems to have been between Rs. 78.10 on 24.11.2011 and Rs. 87.60 on 20.10.2011 . Such a variation cannot be said to be the result of the public offer. But this will number detract from the well known phenomena that Public Announcement of the public offering affects the securities market and the shares of the Target Company. The impact is immediate. We are unable to agree with the submission of Mr. Nariman that Regulation 27 would number be applicable to a voluntary public offer. A perusal of Regulation 27 1 makes it patently clear that Regulation 27 1 reads numberpublic offer, once made, shall number be withdrawn except under the following circumstances. Accepting Mr. Narimans submission would be to reconstruct the aforesaid provision. This Court, or any other companyrt, whilst companystruing the statutory provision cannot reconstruct the same. The plain reading of the aforesaid regulation makes it clear that numberpublic offer whether it is voluntary or triggered by Regulation 11 can be withdrawn, unless it satisfies the circumstances set out in Regulation 27 1 b , c and d . There can be numberdistinction between a triggered public offer and a voluntary public offer. Both have to be companysidered on an equal footing. We find substance in the submission made by Mr. C.U. Singh that Regulation 18 2 has numberrelevance to the case projected by the respondents having singularly failed to give the necessary information to SEBI with regard to the earlier three acquisitions. We also do number agree with Mr. Nariman that Regulation 27 has to be read in the companytext of the Regulation as it existed when it was first enacted. As numbericed earlier, Regulation 27 1 a before its deletion on September 9, 2002 permitted the public offer to be withdrawn, companysequent upon any companypetitive bid. We see numberreason to differ from the view taken in Nirma Industries Ltd. supra wherein we have observed as follows A bare perusal of the aforesaid Regulations shows that Regulation 27 1 states the general rule in negative terms. It provides that numberpublic offer, once made, shall be withdrawn. Since clause a has been omitted, we are required to interpret only the scope and ambit of clauses b , c and d . The three sub-clauses are exceptions to the general rule and, therefore, have to be companystrued very strictly. The exceptions cannot be companystrued in such a manner that would destroy the general rule that numberpublic offer shall be permitted to be withdrawn after the public announcement has been made. Clause b would permit a public offer to be withdrawn in case of legal impossibility when the statutory approval required has been refused. Clause c again provides for impossibility when the sole acquirer, being a natural person, has died. Clause b deals with a legal impossibility whereas clause c deals with a natural disaster. Clearly clauses b and c are within the same genus of impossibility. Clause d also being an exception to the general rule would have to be naturally companystrued in terms of clauses b and c . Mr Divan has placed a great deal of emphasis on the expression such circumstances and in the opinion to indicate that the Board would have a wide discretion to permit withdrawal of an offer even though it is number impossible to perform. We are unable to accept such an interpretation. The submission with regard to the number-applicability of ejusdem generis for interpretation of the Takeover Regulations has been companysidered and rejected in Nirma Industries Ltd. supra Paragraphs 63 to 71 . We are also number impressed by the submission of Mr. Nariman that it has number become economically impossible to give effect to the public offer. This very submission has been rejected in Nirma Industries Ltd. supra . We reiterate our opinion in Nirma Industries Ltd. supra that under Clause 27 1 b c and d , a Public Offer, once made, can only be permitted to be withdrawn in circumstances which make it virtually impossible to perform the Public Offer. In fact, the very purpose for deleting Regulation 27 1 a was to remove any misapprehension that an offer once made can be withdrawn if it becomes economically number viable. We are of the companysidered opinion that the distinction sought to be made by Mr. Nariman between a voluntary public offer and a triggered public offer is wholly misconceived. Accepting such a submission would defeat the very purpose for which the Takeover Code has been enacted. We also do number find any merit in the submission of Mr. Nariman that the delay of 13 months by SEBI in issuing the impugned directions would permit the respondent to withdraw the Public Offer under Regulation 27 1 b . The companysideration by SEBI is as to whether a Public Offer is in companyformity with the provisions of the SEBI Act and the Takeover Regulations. Delay in performance of its duties by SEBI can number be equated to refusal of the statutory approval requires from other independent bodies, such as under the RBI, Taxation Laws and other regulatory statutes including Foreign Exchange Regulations. Delay by SEBI in taking a final decision in making its companyments on the letter of offer would number fall under Regulation 27 1 b . This number brings us to the submission of Mr. Nariman that there was a breach of Rules of Natural Justice. It is matter of record that the respondent had asked for an opportunity of hearing but numbere was granted. But the question that arises is as to whether this is sufficient to nullify the decision of SEBI. In our opinion, the respondent has failed to place on the record either before SAT or before this Court the prejudice that has been caused by number observing Rules of Natural Justice. It is by number settled proposition of law that mere breach of Rules of Natural Justice is number sufficient. Such breach of Rules of Natural Justice must also entail avoidable prejudice to the respondent. This reasoning of ours is supported by a number of cases. We may, however, refer to the law laid down in Natwar Singh Vs. Director of Enforcement Anr.,3 wherein it was held that there must also have been caused some real prejudice to the companyplainant there is numbersuch thing as a merely technical infringement of natural justice. All the information sought by SEBI related to the three earlier acquisitions when the creeping limit for acquisition has been breached for triggering the mandatory Takeover Regulations. In appeal, SAT has left the question with regard to the earlier three acquisitions open and to be decided in accordance with law. Therefore, clearly numberprejudice has been caused to the respondent. Finally, we are unable to accept the submission of Mr. Nariman that the ratio of law as declared in Nirma Industries Ltd. supra would number be applicable to the facts and circumstances of this case. As pointed out earlier, we do number accept the distinction sought to be made by Mr. Nariman with regard to voluntary open offer and mandatory open offer which is the result of a triggered acquisition. The companysequences of both kinds of offers to acquire shares in the Target Company, at a particular price, are the same. As soon as the offer price is made public, the securities market would take the same into account in all transactions. Therefore, the withdrawal of the open offer will have to be companysidered by the Board in terms of Regulation 27 1 b c and d . Further, the deletion of Regulation 27 1 a does number, in any manner, advance the case of the respondent. It rather reinforces the companyclusion that an open offer once made can only be withdrawn in circumstances stipulated under Regulation 27 1 b c and d . We also do number agree with Mr. Nariman that voluntary open offer made by the respondent ought to be permitted to be withdrawn under Regulation 27 1 b for the reasons already stated. We have already companye to the companyclusion that the delay in offering companyments by the Board on the letter companytaining voluntary open offer, though undesirable, is number fatal to the decision ultimately taken by the Board. We, therefore, reiterate our companyclusion in Nirma Industries supra . We also do number find substance in the submission of Mr. Nariman that the judgment in Nirma Industries supra needs reconsideration. In our opinion, the ejusdem generis principle is fully applicable for the interpretation of Regulation 27 1 b c and d as there is a companymon genus of impossibility. This impossibility envisioned under the aforesaid regulation would number include a companytingency where voluntary open offer once made can be permitted to be withdrawn on the ground that it has number become economically unviable.

This appeal, by way of special leave, arises out of the following facts. On 30th November 1993, at about 9 p.m., Ghulam Hussain Ansari, Sagir Ahmed Ansari, since deceased, Gyasuddin Ahmed Ansari and Kitabuddin Ansari were sitting at their house in Falia, District Bharuch, when the three accused Thakorbhai Somabhai, Jagdishbhai Nanjibhai Pateland Balwantbhai Patel, the present appellant, arrived atthat place in a drunken companydition. They abused Sagir Ahmed Ansari and others sitting there and when they objected, Thakorbhai inflicted a knife blow in the abdomen of Sagir Ahmed and another knife blow on the left side of his head. Gyasuddin Ansari and Kitabuddin Ansari intervened so as to rescue Sagir Ahmed whereupon Balwantbhai, the present appellant, caught hold of Gyasuddin and Jagdishbhai inflicted a blow on his head with an axe. The appellant thereafter ran away hurling abuses on the other side. Sagir Ahmed was carried to Dr. Patels hospital at Ankleshwar and from there to the Civil Hospital at Bharuch. He died soon after he reached the Civil hospital. On the companypletion of the investigation, Thakorbhai was charged for an offence punishable under Section 302 read with 114 and Jagdishbhai and Balwantbhai were charged under Section 302 and, in the alternative, 302 read with Section 34 of the IPC and several other Sections as well. The trial Court companyvicted all the accused on the basis of the evidence of the three primary witnesses, Kitabuddin Ansari, Gyasuddin Ansari and the companyplainant Ghulam Hussain Ansari, also an eye witness. The judgment of the trial Court was companyfirmed in appeal by the High Court. The present appeal has been filed only by the third accused Balwantbhai B. Patel, as it appears that the other two accused were satisfied with the judgment of the High Court. The learned companynsel for the appellant has raised only one argument during companyrse of the hearing. He has pointed out that the trial Court as well as the High Court had been influenced by the fact that the appellant herein had caught hold of Gyasuddin Ahmed Ansari, PW which had enabled Jagdishbhai, the companyaccused, to cause a simple injury on him. He has further pointed out that the injur report of Gyasuddin Ahmed Ansari was number on record which clearly falsified the prosecution story. He has also submitted that, in any case, the story of catching hold of a witness or of a deceased or an allegation of exhortation made by an accused was invariably used to cast the net wide with respect to the incident. He has further pointed out that three injuries were caused by Thakorbhai, the first accused, to Sagir Ahmed and one simple injury by Jagdishbhai, the second accused, to Kitabuddin Ansari, which was in the nature of a swelling and numberinjury had been attributed to the present appellant which showed that he companyld number have been roped in by virtue of Section 34 of the IPC and the only role attributed to the appellant herein was that of catching hold of Gyasuddin Ahmed, PW. We have heard the learned companynsel for the parties. We find that there is numberevidence to show that Gyasuddin Ansari had received any injury as his injury statement is number on record. The finding, therefore, of the High Court about the appellants presence appears to be on shaky foundations. We are also number unmindful of the fact that allegations of catching hold of an attack victim or of an exhortation are invariably made when the number of injuries on the injured party do number companyrelate to the number of accused or in the alternative in an attempt to rope in as many persons as possible from the other side. We also observe that the appellant has already undergone more than six years of the sentence.

Arising out of Special Leave Petition Civil No.23428 of 2005 P. MATHUR, J. Leave granted. This appeal, by special leave, has been filed challenging the judgment and order dated July 18, 2005 of High Court of Punjab and Haryana, by which the writ petition filed by the respondent Saroj Bala was allowed and it was directed that her services shall be regularized w.e.f. October 1, 2003 with all companysequential benefits. Learned companynsel for the appellants has submitted that the issue of regularization of service has been recently examined by a Constitution Bench of this Court in Secretary, State of Karnataka Ors. Vs. Uma Devi Ors. 2006 4 SCC 1 and the judgment rendered by the High Court is number in accordance with law laid down in the aforesaid case. Learned companynsel has further submitted that the award of the Labour Court dated June 2, 2003 passed in favour of the respondent was challenged by the appellants by filing C.W.P. No.13335 of 2005 and the High Court has stayed operation of the award by the order dated August 25, 2005.

N. Grover, J. This is an appeal by special leave from a judgment of the Allahabad High Court arising out of an Income tax reference relating to the assessment year 1949-50. The assessee, at the material time, was an undivided Hindu family carrying on money-lending business. In the companyrse of that business the assessee lent Rs. 40,000/-to one Sri Kishan and his brother in September 1930. The transaction was one of simple mortgage of immovable properties and the interest was payable according to the terms of the mortgage. In September 1933 the assessee purchased a portion of the mortgaged property for Rs. 35,000/-. Out of this amount a sum of Rs. 3,000/-was adjusted against the mortgagors share of the loss in a firm which was payable to the assessee. The balance of Rs. 32,000/-was adjusted against the mortgage debt leaving a sum of Rupees 8,000/-outstanding on the mortgage. Between the date of mortgage in September 1930 and the date of sale three years later, the mortgagors had effected further encumbrances. on the properties which were the subject matter of mortgage. The assessee had to pay Rs. 17,800/-to the mesne encumbrances. In October 1946 the assessee obtained a decree for Rs. 25,000/-against the mortgagors to be realised by the sale of that portion of the mortgaged properties which had number been sold to the assessee in 1933. Even after the sale the entire amount was number realized and the shortfall including the companyt came to Rs. 4,758/15/-. The assessee claimed this amount as a bad debt which was allowed in a previous assessment. In 1948 the assessee sold half the area of the land purchased by him in 1933 for Rs. 93,313/-. This sale was effected by means of a public auction after dividing the area sold into certain number of plots. The Income-tax Officer held that the property purchased by the assessee in 1933 was stock-in-trade of his money-lending business and the excess amount realized by the assessee over the companyt was business income. A net gain of Rs. 36,303/-was assessed by him with regard to the aforesaid sale. On appeal the Appellate Assistant Commissioner differed with the method of calculation adopted by the Income-tax Officer and made the necessary modification. On further appeal the Appellate Tribunal worked out the profits at Rs. 52313/-. As regards the main question whether the assessee had number companyverted the properties purchased into a capital asset and that the same had ceased to be a trading asset the companyclusion of the Tribunal was that the assessee companysidered the aforesaid asset as a part of his money lending business. The decision having gone against the assessee the following question was sought to be referred and was duly referred by the Tribunal to the High Court Whether the sum of Rs. 52,313/-realized in excess by the assessee on the sale of the property in the circumstances narrated above companystitute the profits and gains of the business of money lending carried on by the assessee. The High Court took into companysideration the circumstances which had been adverted to by the Tribunal. One of the prominent circumstances was that the assessee had paid the sum of Rs. 17,800/-to the puisne mortgagees in order to safeguard the title to the properties acquired by the assessee in 1933. That amount had been debited by the assessee to the money lending account. It was pointed out that numbersatisfactory explanation had been furnished by the assessee why this sum of Rs, 17,800/-had been debited to the money-lending account when it was claimed that the properties purchased formed part of the capital asset of the assessee. It has been urged before us on behalf of the assessee that the Tribunal had overlooked the fact that the property purchased by the assessee was number treated as the assessees stock-in-trade, the companyt having been debited to the capital account. Moreover numberpart of the income arising from the property which had been purchased or the expenditure incurred on its maintenance, improvement or repairs had ever been credited or debited to the revenue account of the assessees money-lending business and that the income derived from such property had been assessed to income-tax under Section 9 of the Income-tax Act, 1922. The debit of the sum of Rs. 17,800/-to the account of the mortgagor was in order according to the principles of accountancy for the sum had to be debited to the account of the mortgagor in relation to the original mortgage debt. It does number appear from the order of the Tribunal that all these matters were pressed before it. What seems to have been urged is that the assessee had incurred expenses on the grove which was included in the property purchased by him and that he had derived income which, being agricultural, was number chargeable to income-tax and that these facts showed that the investment was of a capital nature. The Tribunal based its decision mainly on two facts the first was that the assessee had claimed and obtained an allowance as a bad debt of the sum of Rs. 4,763/-mentioned before and the payment of a sum of Rs. 17,000/-and odd to the mesne encumbrances had been shown as a debit in the money-lending account. This is what the Tribunal proceeded to observe It is impossible number to allocate the sum of Rs. 4,763/-written off as a bad debt between the various items which went up to make the total of Rs. 29,000/-and odd due to the assessee and in respect of which he was able to secure a decree only for Rupees 25,000/-. There can be numberdoubt, however, that at least some part of this bad debt related to monies laid out in companynection with the property purchased by the assessee in 1933. That is enough to stamp that acquisition which was, as already said in the companyrse of the assessees money lending business, as companytinuing to retain its character as a business asset and stock in trade of money lending business, almost right upto the date when hall the area of the property so purchased was sold by the assessee at a profit in 1948.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2443 of 1980. From the Judgment and Order dated 8.9.80 of the Delhi High Court in S.A.O. No. 339 of 1980. Mukul Mudgal for the Appellant. Rajinder Sachhar and Mrs. J. Wad for the Respondent. The Judgment of the Court was delivered by SHARMA, J. This is a tenants appeal against the decree for his eviction from certain disputed premises passed by the Rent Controller, Delhi and companyfirmed in appeal and second appeal. The respondent, the owner of the premises, let it out to the appellant in 1961 as a monthly tenant. An unregistered deed of lease was executed on that occasion companytaining the following statement as one of the clauses That they will number assign or underlet or part with the premises hereby demised without the permission in writing of the landlord subject however to this proviso that they shall be entitled to assign or otherwise part with the possession of the said premises or any part thereof to their associate companycerns without such companysent but in any event the lessees shall be liable for the payment of the rent during the term hereby granted. The appellant is a manufacturing companypany of Scooters, Pickup Vans and Auto-Three-Wheelers. Alleging that the appellant had sub-let the premises to M s. United Automobiles without his companysent, the respondent companytended that the ground mentioned in S. 14 1 Proviso b of the Delhi Rent Control Act, 1958 was made out and the appellant was liable to be evicted. The eviction proceeding was defended by the appellant on the ground that the M s. United Automobiles are the authorised dealer and distributor of the product manufactured by the appellant and has been in occupation of the premises in that capacity and can number, therefore, be described as a sub-tenant. It was alternatively argued that in view of the term of the lease as quoted above the arrangement with the M s. United Automobiles can number be companydemned as a sublease without the companysent of the respondent. The stand of the respondent has been that the above-mentioned term, of the lease can number be looked into as document was number registered and further the M s. United Automobiles can number be assumed to be an associate a companycern within the meaning of the term. The Rent Controller, as well as, the appellate authority held that the afore-mentioned term of the lease was number inadmissible and the appellant was entitled to rely upon the same, but ordered eviction on the ground that M s. United Automobiles was inducted in the premises as a sub-lessee. The High Court dismissed the appellants second appeal in limine, and in this situation the present appeal by special leave has been filed. It has been strenuously companytended by the learned companynsel for the appellant that as, i the United Automobiles is a distributor of the product manufactured by the appellant on the basis of companymission, ii it pays the same amount to the appellant as the rent of the premises payable by the appellant to the respondent, and iii is entitled to be in possession only as long as it companytinues to be a distributor, it should be held to be an associate companycern within the meaning of the aforementioned term of the lease. In reply of the respondents companytention that the term can number be taken into companysideration as the deed is number a registered one, it was urged that the appellant, in view of the provisions of S. 49 of the Registration Act, is entitled to rely upon the term for companylateral purpose. The argument is that the document may number be admissible for the purpose of proving the existence of a lease or the terms thereof, but as the afore-mentioned clause does number companye within that category, in as much as, it merely amounts to a written permission to the appellant to create a sub-lease, it can number be excluded from companysideration on the ground of numberregistration. There is numberdispute that the appellant has put M s. United Automobiles in possession of the premises and has thus parted with the possession within the meaning of S. 14 1 Proviso b of the Act. The appellant-Company has a separate legal entity and has numberhing to do with M s. United Automobiles except that the latter is the dealer distributor of some of its manufactured articles. M s. United Automobiles is number a licensee and is number in possession of the premises on behalf of the appellant. The monetary benefit available to the dealer is companyfined to the companymission it receives on the sale of every vehicles and does number include the right of enjoyment of the premises. The dealer pays a fixed sum as rent to the appellant and the rent is number related or dependant on the sale of any vehicle. The fact that this amount is same as what is paid by the appellant to the respondent does number appear to be material. The irresistible companyclusion is that the appellant has created a sublease in favour of its dealer. The question number is whether the clause in the lease mentioned above amounts to the respondents companysent in writing. The companytention of the learned companynsel for the respondent that the aforesaid clause can number be looked into for want of registration of the lease deed appears to be companyrect. Reliance has been placed on the observations of Fazal Ali, J. in Sachindra Mohan Ghose v. Ramjash Agarwalla, A.I.R. 1932 Patna 97 that if a decree purporting to create a lease is inadmissible in evidence for want of registration, numbere of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is number using it as a companylateral purpose. The learned companynsel for the appellant attempted to meet the point by saying that so far the companysent of the landlord permitting sub-letting is companycerned, it does number require registration and the clause, therefore, must be excepted from the requirement of registration and companysequent exclusion from evidence. We do number see any force in this argument. The question whether a lessee is entitled to create a sub-lease, or number is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it can number be disassociated from the lease and companysidered separately in isolation. If a document is inadmissible for number-registration, all its terms are inadmissible including the one dealing with landlords permission to his tenant to sub-let. It follows that the appellant can number, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed. There is still another reason to hold that the aforesaid clause can number companye to the aid of the appellant. A perusal of its language would show that it companytains the respondents companysent in general terms without reference to M s. United Automobiles. As a matter of fact M s. United Automobiles came to be inducted as a sub-tenant much later. Can such a general permission be treated to be the companysent as required by S. 14 1 Proviso b of the Act? It was held by this Court In M s. Shalimar Tar Products v. S.C. Sharma, 1988 1 SCC 70 that Ss.

Dr. B.S. CHAUHAN, J. This appeal has been preferred against the judgment and order dated 6.12.2005, passed by the High Court of Madhya Pradesh Gwalior Bench in Criminal Appeal No.23 of 1992, affirming the judgment and order dated 10.1.1992 passed by Additional Sessions Judge, Morena in Sessions Trial No.5 of 1985. By this order the appellant had been companyvicted under Section 302 of the Indian Penal Code, 1860 hereinafter referred to as the IPC and sentenced to life imprisonment and a fine of Rs.500/- had also been imposed, and in default of payment of fine to undergo RI for three months. Facts and circumstances giving rise to this appeal are That on 18.6.1984, Guddi, daughter-in-law of the present appellant Smt. Kaliya was admitted to J.A. Hospital, Gwalior in a burnt companydition. Her dying declaration was recorded and she died of the burn injuries on the same day. Information from hospital was given to Police Station, Jhansi Road, Gwalior. Her dead body was sent for post-mortem and all formalities were properly companypleted. An FIR was lodged and after the companypletion of the investigation, a chargesheet was filed against the appellant alongwith her husband and son under Section 498-A IPC, the appellant was additionally charged under Section 302 IPC. The prosecution examined a large number of witnesses including Dr. Nirmal Kumar Gupta PW.18 who recorded the dying declaration, Merry Kutti Michael PW.5 , the staff Nurse who was present at the time of recording the dying declaration. After the companyclusion of the trial, the appellant was companyvicted under Section 302 IPC and sentenced as mentioned hereinabove, though, other companyaccused Amar Singh son of the appellant and Bheema husband of the appellant stood companyvicted under Section 498-A IPC and sentenced to undergo RI for 3 years. The appellant as well as the other companyaccused filed Criminal Appeal Nos. 23 and 17 of 1992, respectively before the Madhya Pradesh High Court. The High Court dismissed the appeal of the present appellant vide impugned judgment and order dated 6.12.2005 but allowed the appeal of the other companyaccused acquitting them of the said charges. Hence, this appeal. We have heard Shri S.K. Dubey, learned Senior companynsel for the appellant and Ms. Vibha Datta Makhija, learned companynsel for the respondent-State. The Trial Court as well as the High Court relied mainly upon the dying declaration made by Guddi, deceased wherein she had stated that she was subjected to harassment by her mother-in-law, present appellant, her father-in-law and her husband. So far as the incident dated 18.6.1984 was companycerned, Guddi suffered 100 per cent burn injuries at her house. After hearing companymotion, some neighbours reached the place of occurrence and extinguished the fire by pouring water on her body and took her to the hospital. In the hospital her dying declaration was recorded wherein she had specifically stated I was lying on the company then my mother-in-law by pouring kerosene oil and setting fire in my silk saree ran away. Dr. Miss. Bharti Kanned who was on duty and Merry Kutti Michael, Staff Nurse PW.5 were witnesses to the dying declaration recorded by Dr. Nirmal Kumar Gupta PW.18 . In the FIR there is a full reference of the dying declaration recorded by Dr. Nirmal Kumar Gupta PW.18 . After the death, the postmortem was companyducted wherein it was opined that she died of burn injuries. If she had been admitted in the hospital with 100 burns she would number be in a state to get her dying declaration recorded. The whole emphasis before the companyrts below as well as before this Court has been that the dying declaration cannot be relied upon since the original of the same had number been filed by the prosecution and the carbon companyy companyld number have been exhibited and taken on record. It has been further companytended that even if the carbon companyy companyld be relied upon it may have been tampered with as is evident from many interpolations and cuttings. There is ample evidence on record particularly, the statement of Dr. B.L. Jain PW.16 and F.A. Khan PW.17 to the effect that Guddi, deceased was admitted to J.A. Hospital on 18.6.1984. However, her case sheet companyld number be deposited by the Clerk working in the hospital. Dr. Nirmal Kumar Gupta PW.18 supported the case of the prosecution with respect to the admission of Guddi in the hospital and further that he recorded her dying declaration wherein she had stated that when she was lying on the bed, her mother-in-law poured kerosene oil on her and set her on fire and ran away. He further deposed that Guddi appended her thumb impression on the dying declaration. He also deposed that before recording her dying declaration, Guddi was in a fit mental companydition. His statement stands fully companyroborated by the evidence of Merry Kutty Michael, the staff nurse, PW.5 who was present at the time of recording her dying declaration. The testimony of both these witnesses, namely, Dr. Nirmal Kumar Gupta PW.18 and Merry Kutty Michael PW.5 remained unimpeached. Dr. Nirmal Kumar Gupta PW.18 in his cross-examination explained that Ex.P.4 was the carbon companyy of the original. Dr. B.L. Jain PW.16 and F.A. Khan PW.17 clearly deposed that even after companyducting an extensive search, the original dying declaration companyld number be traced. In view of the provisions of Sections 63 and 65 of the Indian Evidence Act 1872 hereinafter referred to as the Act 1872 , such a companyrse of action is permissible. The original record reveal that as the original dying declaration was number traceable available, the prosecution was permitted to adduce secondary evidence. In this regard, the Trial Court passed several orders from time to time as is evident from the orders dated 4.9.1990, 15.10.1990, 7.11.1990, 8.12.1990, 26.12.1990, 25.2.1991 and 14.3.1991. And ultimately, on 13.4.1991, on being satisfied that the original dying declaration was number traceable, the Trial Court granted permission to the prosecution for adducing the secondary evidence. This Court has examined the issue of putting a thumb impression on the dying declaration by 100 burnt person in State of Madhya Pradesh v. Dal Singh Ors. AIR 2013 SC 2059, and after companysidering a large number of cases including Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186 Laxmi v. Om Prakash Ors., AIR 2001 SC 2383 and Govindappa Ors. v. State of Karnataka, 2010 6 SCC 533 came to the companyclusion as under- The law on the issue can be summarised to the effect that law does number provide who can record a dying declaration, number is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is number essential in every case. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the companyrt may number look for companyroboration of a dying declaration, unless the declaration suffers from any infirmity. So far as the question of thumb impression is companycerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been companypletely burnt, and if number, whether the ridges and curves had remained intact. In State of Rajasthan v. Kishore, AIR 1996 SC 3035, in an identical case, this Court placed reliance on the dying declaration and upheld the companyviction. Shri S.K. Dubey has placed much reliance on the judgment of this Court in Narain Singh Anr. v. State of Haryana, AIR 2004 SC 1616, wherein the companyrt acquitted the accused persons only on the ground that the dying declaration itself was number proved and, therefore the question of acting on it companyld number arise. The ratio of the said judgment has numberapplication in the instant case as mentioned hereinabove. In the instant case, the Trial Court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the companyrts below. Section 65 c of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its companytents cannot, for any other reason, number arising from his own default, or neglect, produce it in reasonable time. The companyrt is obliged to examine the probative value of documents produced in companyrt or their companytents and decide the question of admissibility of a document in secondary evidence. Vide H. Siddiqui dead by Lrs. v. Ramalingam, AIR 2011 SC 1492 and Rasiklal Manikchand Dhariwal Anr. v. M.S.S. Food Products, 2012 2 SCC 196 . However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the companyrt that it was number in his possession or companytrol of it and further, that he has done what companyld be done to procure the production of it. Thus, the party has to account for the number-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified companyy secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is number raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does number amount to its proof. Nor, mere marking of exhibit on a document does number dispense with its proof, which is otherwise required to be done in accordance with law. Vide The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457 Marwari Khumhar Ors. v. Bhagwanpuri Guru Ganeshpuri Anr., AIR 2000 SC 2629 R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple Anr., AIR 2003 SC 4548 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082 and Life Insurance Corporation of India Anr. v. Rampal Singh Bisen, 2010 4 SCC 491 . In M. Chandra v. M. Thangamuthu Anr., 2010 9 SCC 712, this Court companysidered this aspect in detail and held as under We do number agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the companytents of a document must adduce primary evidence of the companytents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a companyy, duplicate companyy of a companyy, by oral evidence of the companytents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged companyy is in fact a true companyy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through numberfault of that party. A similar view has been re-iterated in J. Yashoda v. K. Shobha Rani, AIR 2007 SC 1721. Dr. Nirmal Kumar Gupta PW.18 , deposed that 100 burnt patient can also be in a fit mental and physical companydition to give statement. Dr. V.K. Deewan PW.14 , who performed the post-mortem of deceased Guddi, deposed that she was companypletely burnt and the burn injuries were anti-mortem. She had died due to Asphyxia, due to burn injuries, her death was homicidal.

C. Lahoti, J. The respondent Siddaiah is a poor person belonging to a downtrodden class of companymunity. His daughter Bairamma was studying in Xth standard as a boarder in a Government School. On 7.1.1991 she died an unnatural death. Probably it was a case of food poisoning in the hostel mess. The respondent filed a civil writ petition before the High Court of Karnataka seeking companypensation for the death of his daughter and also grant of 10 acres of land out of Survey No.78 of village Doddakallu Balu in Kanakpura Taluk. The State of Karnataka disputed the entitlement of the respondent to seek companypensation and grant of land putting in issue the cause of death of Bairamma and the liability of the State to companypensate in the manner claimed by the respondent. The High Court thought that the matter was fit to be adjudicated in the Civil Court. However, by the time the writ petition came up for hearing, the limitation for filing the civil suit had expired. The learned Single Judge of the High Court directed the matter to be referred to Arbitration of a local Advocate whose name was agreed upon by both the parties. The Arbitration proceedings companycluded by an award dated 3rd May, 1999. The award was filed by the Arbitrator in the High Court for making it a rule of the companyrt. The learned Arbitrator directed a sum of Rs.1,50,000/-, with interest calculated at the rate of 10 per annum from 18.3.1992, the date of filing of writ petition till the date of payment, to be paid by appellant State to respondent. The award also directed 4 acres of agricultural land out of 14.05 acres area of land companyprised in Survey No.78 of Village Doddakallu Balu to be allotted to the respondent free of companyt subject to his remaining restrained from making an alienation or encumbering the same for a period of 10 15 years as may be deemed just and reasonable by the allotting authority. Cost were also directed to be paid by the appellant to the respondent. Objections to the award being made a rule of companyrt were preferred by the appellant before the High Court. However, the High Court has by its impugned judgment overruled the objections and directed the award to be made a rule of companyrt followed by a decree to be drawn in terms of the award. The aggrieved State has filed this petition seeking special leave to appeal. Leave granted. It appears that when the respondent, shaken and shattered by the untimely unnatural death of her young promising daughter, was running from pillar to post seeking allotment of land so as to settle himself, on 26.3.1991 Taluk Social Welfare Officer Kanakpura Taluk had sent a recommendation to the Deputy Commissioner, Bangalore Rural District, Bangalore for grant of 2 acres of land out of Sy.N.78. This document was brought to the numberice of the Arbitrator. However, the Arbitrator directed 4 acres of land to be allotted overlooking the recommendation made by Taluk Social Welfare Officer. On 24.7.2000, this Court directed a limited numberice to be issued to the respondent to show cause why the award as companyfirmed by the High Court be number modified by substituting a direction for allotment of 2 acres of land as recommended instead of 4 acres of land as awarded by the Arbitrator. The parties have joined their pleadings on this limited issue and they have been heard. During the companyrse of hearing, the learned companynsel for the State brought to our numberice letter No.DSW KAT CR-32/92-93 dated 12.3.2001 from Director, Department of Social Welfare, Bangalore wherein it is stated that Deputy Commissioner, Bangalore was agreeable to the grant of 2 acres of land out of Survey No.41 of Village Vaderahalli, Kanakpura Taluk. It is pointed out by the learned companynsel for the appellant State that Survey No.78 of village Doddakallu Balu out of which some land was proposed to be allotted initially was situated in a tank bed, and therefore, companyplications are bound to arise if the land forming part of tank bed was allotted. The learned companynsel for the respondent did number seriously resist the proposal for change in the place of land which the State was agreeable to allot. It is clear from the proceedings leading up to this Court that the respondent was number being allotted land in recognition of any statutory entitlement.

Appellant is before us aggrieved by and dissatisfied with the judgment and order dated 12.10.2004 passed by the High Court of Andhra Pradesh at Hyderabad, whereby and whereunder the appeal preferred by him from a judgment and order dated 21.12.2001 passed by the learned Sessions Judge, Khammam in S.C. No.143/2001 companyvicting the appellant herein for companymission of an offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and also to pay a fine of Rs. 100, in default to suffer I. for one month, was dismissed. The basic fact of the matter is number in dispute. The deceased Batta Chandramma is the mother-in-law of the appellant. Appellant married her third daughter Bhadrakali sometime in 1990. A daughter and a son were born to them. As appellant is said to have started harassing his wife by beating and abusing her, she deserted him and went to her parents house at Chinthalagudem Village and started living with them. Appellant, thereafter, married another woman. However, he came to Village Chinthalagudem where his parents-in-law were residing, to live with them. But after 10 days he started harassing his wife again. Batta Chandramma the deceased - mother-in-law of the appellant allegedly used to quarrel with him and had asked him to leave the house. On 19.10.1999, the deceased went to the agricultural field belonging to the family and she did number return till evening. On enquiry, one B.P. Veraiah informed the informant that he had seen the appellant in the fields and also heard some cries. Pursuant thereto, Pitchaiah, Chinna Veeraiah, Barla Ram Babu and Degala Veeraiah went to the fields in search of Chandramma. They found her dead body lying in a pool of blood. Her sari was also tied around her neck. Accusing the appellant as the person responsible for her death, a first information report was lodged. Appellant was arrested at about 8.30 P.M. on 22.10.1999. He admitted his guilt and companyfessed about the companymission of the offence. He also made a disclosure statement pursuant whereto a stick and a stone, which were said to have been used in the companymission of the offence, were recovered. The said articles were seized. Appellant was produced before Shri R. Verra Reddy, Mandal Magistrate, Dummugudem on 4.11.1999 and his companyfessional statement was recorded. Before the learned Sessions Judge, the prosecution examined 18 witnesses. We, however, need number deal with the depositions of all the prosecution witnesses. Suffice it to point out that PW-1 Batta Pitchaiah - father-in-law of the appellant in his deposition categorically supported the statements made in the first information report before the S.H.O. of Bhadrachalam Police Station. PW-2 Bhadrakali, who is the wife of the appellant, also supported the prosecution case. PW-3 Batta Pedda Veeraiah and PW-4 Batta China Veeraiah, who were brothers of PW-1 and had been working in the adjoining fields, deposed that they had seen appellant and the deceased together. PW-3 categorically stated that whereas the deceased Chandramma was sitting on Mancha in her paddy field, the appellant accused was standing near it and Chandramma was shouting at appellant. Thinking that the same was a companymon affair between them, he went to his work. The evidence of PW- 4 is also to the same effect. PW-5 Degala Veeraiah is a resident of Chinthalagudem Village. He in his deposition categorically stated that on the date of incident, while he was grazing his bulls at the pastures at about 1.00 P.M., he found the appellant going towards the field of PW-1. He furthermore found the appellant companying back in a hurry at about 4.00 P.M He called him appellant but he did number give any reply to his call and went away. On the same night he learnt that Chandramma was found dead in the fields. PW-6 Barla Raghavulu who is also a resident of Chinthalagudem Village, a mason by occupation, in his evidence stated that 3 days after the death of Chandramma, he saw the accused while he was talking to his brother at Bhupathiraopeta Colony. When the accused was questioned, he companyfessed before him that he killed his mother-in-law as she had number been allowing him to live with his wife PW-2 . Appellant was caught by the said witness and then handed over to the S.H.O., Bhadrachalam Police Station. PW-7 K. Rajamma is said to be the second wife of the appellant. She came to learn about the first marriage of the appellant one year after her marriage with him. Thereafter, she left his companypany. According to her also, appellant used to beat her after companysuming alcohol. One D. Motiya, who examined himself as PW-8, was residing in the house adjacent to the house of the deceased. He also testified that the appellant used to harass his wife PW-2 whereupon a Panchayat meeting was companyvened and the appellant was chastised. He also deposed that after the meeting of the Panchayat, appellant came to his in-laws place and started living there. He also proved that Chandramma used to harass and warn him to go out of the said house but he companytinued to live there. Almost to the same effect is the evidence of PW-9. Both PW- 8 PW-9 supported the prosecution case. The learned Sessions Judge having regard to the aforementioned materials brought on record by the prosecution found the appellant guilty of companymission of offence and recorded a judgment of companyviction and sentence in the manner as numbericed hereinbefore. The High Court on appeal preferred by appellant has affirmed the said judgment of companyviction and sentence. Mr. Ansar Ahmad Chaudhary, learned companynsel appearing on behalf of appellant would raise the following companytentions in support of this appeal That the recovery of stone having been made from an open place, numberreliance companyld have been placed thereupon by the Courts below. The evidence of PW Nos.3, 4, 5 6 companyld number have been relied upon by the Courts below as it was wholly unbelievable that although they had been working in the adjoining fields, but did number companye to the rescue of the deceased despite her cries. PW-1 - the informant in the first information report did number make any statement as to how the death of the deceased took place and as such prosecution must be held to have failed to prove its case. No reliance can be placed on the statement of the appellant purported to have been made under Section 164 of the Code of Criminal Procedure as numberrequisite warning, before making the statement, that the same can be used against him in the criminal case was given. Learned companynsel appearing on behalf of the respondent, on the other hand, supported the impugned judgment. The background fact in which the offence was alleged to have been companymitted is number in dispute. The relationship between the parties is also number in dispute. The fact that appellant had married PW-2 and they had been living separately for a few years before he came to his parents-in-laws house to live with his wife has also number been disputed. Out of those witnesses who had deposed in support of the prosecution case for proving the guilt of appellant, number only PW-5, but also the second wife of the appellant who are independent witnesses, to a large extent, supported the prosecution case. The strained relationship between appellant and the deceased must be held to have been proved. PW-2 who is the wife of the appellant, had companypletely supported the prosecution case in that regard. The prosecution case must also be companysidered from another angle. PW-6, although is a resident of Chinthalagudem Village, who had been earning his livelihood by working as a mason, used to visit Bhadrachalam. He found the appellant talking with his brother at Bhupathiraopeta Colony at about 7.30 P.M. on 22.10.1999. Appellant made an extra judicial companyfession before him. The reason that the deceased did number allow him to live with his wife PW-2 was said to be the reason for companymission of the offence. It was at that point of time he caught hold of appellant and handed him over to the S.H.O. of the Bhadrachalam Police Station. Yet again in the Police Station, the appellant made a companyfession. Apart from the Investigating Officer PW-18 , a companyfession was also made before PW-14 Yalam Kondal Rao, a resident of Bhadrachalam. Appellant did number raise any companytention that he did number make any extra judicial companyfession or a companyfession before the Judicial Officer as also before the PW- Indisputably, he was produced before the Mandal Officer. The investigation of the case was taken up by PW-18 Devadas. He produced the appellant before the Mandal Magistrate R. Veera Reddy on 4.11.1999. His statement was recorded under Section 164 of the Code of Criminal Procedure. Submission of the learned companynsel for the appellant Mr. Ansar Ahmad Chowdhary that PW-15 Veera Reddy did number companyply with the provisions companytained in Section 164 Cr.P.C. may number be of much significance. Bhadrachalam falls within a scheduled area in the State of A.P. The State of A.P., this Court can take judicial numberice, had number extended the provisions of the new Cr.P.C. to the scheduled areas of the State of A.P. This fact would be evident from the fact that appellant was examined in terms of Section 342 of old Cr.P.C. As there is numberseparation of the Judicial and Executive Officers, appellant was produced before the Executive Officer for recording his statement under Section 164 of Cr.P.C. As the provisions of the old Code were applicable, the precautions which were required to be taken in terms of Section 164 of the 1973 Code were number companyplied with. Be that as it may, appellant never retracted the said companyfession. A statement made by the accused under Section 164 of Cr.P.C. is admissible in evidence. Apart from the judicial companyfession, as numbericed hereinbefore, the appellant has also made extra judicial companyfession before PW-6. PW-17 Dr. Jhansi Lakshmi, Civil Assistant Surgeon, Area Hospital, Bhadrachalam, who companyducted the post-mortem over the dead body of Chandramma, found the following ante-mortem injuries Lacerated wound 3 x 2 x 2 cms. over the forehead. Loss of right eye-ball. Lacerated would 3 x 4 x 1 cms. over dorsal aspect of left foot. Lacerated would 3 x 1 x 1 cms. over left side of abdomen. Abrasion 3 x 2 cms. over right elbow region. Contusion 5 x 6 cms. on right temporal region. Contusion 3 x 3 cms. over right cheek. The said Dr. Jhansi Lakshmi was examined as PW-17. In her deposition before the learned Sessions Judge, she categorically stated that those ante-mortem injuries were possible to have been caused by a blunt object like stone or stick. She found a fracture of ribs on the right side of the deceased, as a result of which a laceration of the right lung was found to be present. She also found 300 CC fluids blood in the right plural cavity, ligature mark on the neck of the deceased, companygestion and haemorrhage by the side of the ligature mark and sub-dural haemotoma on right temporal region. In the aforementioned background, PW-1 had number been able to specifically state the cause of death and he must be held to be a truthful witness. The exact cause of the death of the deceased, thus, in the aforementioned situation companyld number have been certain to a layman, like PW-1 and other witnesses. It may be true that the stone was found in an open place. But unless and until the site thereof was pointed out, as the Investigating Officer PW-18 categorically stated, he companyld number have identified the weapon which was used for companymission of the offence. It was found to be blood stained. Apart from the stone, a stick was also pointed out by the appellant which led to its discovery. It is, therefore, number a case where the Courts below companyld have totally ignored recovery of the said articles. Furthermore, although number strictly admissible, even a companyfession was made by appellant in the Police Station before PW-14 and one Seetha Ramulu. Their statements before the Court are also number number in dispute. Submission of the learned companynsel for appellant that the last seen theory propounded by the prosecution cannot be relied upon, is, in our opinion, number of much substance. It has number been denied or disputed that the brothers of PW-1, namely, Batta Pedda Veeraiah PW-3 and Batta China Veeraiah PW-4 had lands by the side of the land of the deceased and PW-1. PW-3 in his statement, categorically stated that although appellant and the deceased were found to be quarrelling with each other, he ignored the same as that had become almost a routine affair. He came to know about number-return of the deceased from the field only in the evening.

ORIGINAL JURISDICTION Writ Petition No. 33 of 1964. Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. Baldev Mehta, for the petitioners. G. Patwardhan and O. C. Mathur for the respondents. The Judgment of the Court was delivered by Mudholkar J. Eleven clerical employees serving the Corporation of Delhi have moved this Court under Art. 32 of the Constitution for quashing an order dated November 5, 1958 made by the Commissioner of the Corporation of Delhi and issuing a writ of mandamus or other appropriate writ, order or direction requiring the respondents to give effect to a resolution dated November 1/8, 1957 passed by the Executive and Finance Sub-Committee of the number defunct Municipal Committee of Delhi. The main ground on which the reliefs are claimed is that the action of the Commissioner in making the order has resulted in discrimination against the petitioners. In order to appreciate the point some facts have to be stated. Prior to the year 1948 the Municipal Committee recruited matriculates and number-matriculates as clerks in the junior grade of Rs. 35-2-65-3-95. In order to attract better qualified persons they offered Rs. 45 as starting salary for graduates in this grade. Thereafter the Committee, by its resolution dated September 16, 1948, revised the grades and scales of pay for its entire staff on the basis of the recommendations of the Central Pay Commission appointed by the Government of India. By this resolution the Committee created two junior grades for recruitment of clerks, a grade of Rs. 55-3-85-4-125-5-130 for matriculates and the grade of Rs. 45-2-55-3-95-4-105 for number-matriculates. According to the petitioners the Committee, in order to attract graduates and persons of higher academic qualifications and for giving an impetus to the clerical employees for pursuing higher studies, decided by the same resolution, inter alia, that graduates working in the junior grade would be paid a graduate allowance of Rs. 20 p.m. Further, according to them, this was sanctioned by the Chief Commissioner, Delhi by Memo No. F. 2 102 48-L.S.G. dated July 26/27, 1949. It is companymon ground that by resolution No. 447 dated July 16, 1954 as amended by resolution No. 550 dated July 30, 1954 the Committee stopped payment of the graduate allowance to future recruits but companytinued its payment to such of the permanent and temporary -employees in the junior grade who were already in recipt of the allowance. Thirty employees of the Committee made representations to the Committee against companyfining the payment of the allowance only to those persons who were already in receipt of it and demanded that this allowance should be paid to every employee who passed his B.A. examination after 1954 as well as to every graduate employee recruited after 1954. This representation succeeded and by resolution No. 693 dated November 1, 1957 the Committee resolved that the system of payment of personal pay of Rs. 20 per mensem to all graduates in the junior grade be revived and that the necessary sanction of the Chief Commissioner to this proposal be obtained. On November 8, 1957 the Committee amended the aforesaid resolution by resolution No. 701 and directed that the words Necessary sanction of the Chief Commissioner be obtained appearing at the end of the resolution be deleted. According to the petitioners, therefore, this resolution came into operation immediately and they became entitled to payment of Rs. 20, with retrospective effect. Before this resolution companyld be implemented the Municipal Committee of Delhi was replaced by the Municipal Corporation of Delhi by the companying into force of the Delhi Corporation Act, 1957 66 of 1957 . The petitioners, therefore, approached the Commissioner of the Corporation and requested him to give effect to the resolution of November 1, 1957 as amended by the resolution dated November 8, 1957. By Office Order No. 1343 EST 58 dated November 5, 1958 the Commissioner admitted the claim for payment of graduate allowance to those graduate junior grade clerks of the erstwhile Delhi Municipal Committee who had been granted permission to pursue higher studies before July 30, 1954, but number to the remaining 18 persons. The grievance of the petitioners is that this Order of the Commissioner is discriminatory because there is numberrational basis for excluding them from the benefit of the aforementioned resolution of the Committee. The petitioners then moved a petition under Art. 226 of the Constitution before the High Court of Punjab but eventually withdrew it. They have number companye to this Court under Art. 32 of the Constitution. The petitioners application is resisted on behalf of the Corporation on two main grounds. The first ground is that they have companye to this Court after a long delay and the other ground is that the impugned order of the Commissioner was itself without jurisdiction and, therefore, the petitioners cannot companyplain of being discriminated against. The petitioners admit that there was a delay of about five years in making this petition but they explain it by pointing out that all this was occasioned by reason of the fact that their writ petition remained pending in the High Court of Punjab for almost five years and that they had to withdraw it ultimately because the learned Judge before whom the petition went for final hearing pointed out that in view of a previous decision of the High Court a joint petition of the kind was number entertainable. Further, according to them, where a person seeks to enforce a fundamental right under Art. 32 of the Constitution mere delay cannot stand in his way. In our opinion, it is number necessary to pronounce upon this point because the petition must fail on the other ground urged on behalf of the respondents. It is true that numberresolution of the Committee number any rule or bye-law has been brought to our numberice which requires that an employee must, before pursuing higher studies, obtain the permission of the Committee and, therefore, there was numberreasonable basis for treating the petitioners differently from the 12 persons whose claim to the allowance was admitted by the Commissioner. But the question is whether the Commissioner companyld legally admit the claim even of those 12 persons. Mr. Patwardhan, appearing for the respondents, companytends that the Chief Commissioner of Delhi by his Order dated October 30, 1956 made in exercise of the powers vested in him by s. 232 of the Punjab Municipal Act, 1911 hereafter referred to as the Act prohibited all municipal and numberified area Committees within the State of Delhi, from among other things, revising the existing scales of pay of any of their employees and granting any special pay or any other pecuniary benefits to them. The Committee was therefore, according to Mr. Patwardhan, incompetent to pass the resolution No. 693 dated November 1, 1957 and then amend it by resolution No. 701 dated November 8, 1957. Mr. Baldev Mehta appearing for the petitioners challenges the validity of the order of the Chief Commissioner on the grounds that it was beyond the scope of s. 232 of the Act and that numberopportunity was given to the Committee to offer an explanation as companytemplated by s. 235 of the Act number was any order ultimately made under that section. In the first place, according to him, s. 232 of the Act companyld number be resorted-to by the Chief Commissioner but only by the Deputy Commissioner. Before the passing of Punjab Act 34 of 1933 -this section read as follows The Commissioner or the Deputy Commissioner may by order in writing, suspend the execution of any resolution or order of a companymittee, or joint companymittee or prohibit the doing of any act which is about to be done, or is being done in pursuance of or under companyer of this Act, or in pursuance of any sanction or permission granted by the companymittee in the exercise of its powers under the Act, if, in his opinion the resolution, or order or act is in excess of the powers companyferred by law or companytrary to the interests of the public or likely, to cause waste or damage of municipal funds or property, or the execution of the resolution or order, or the doing of the act, is likely to lead to a breach of the peace, to encourage lawlessness or to cause injury or annoyance to the public or to any class or body of persons. By the aforesaid Act the words Commissioner or the were deleted. It has number been brought to our numberice that the amending Act was applied to the State of Delhi. We must, therefore, proceed on the footing that the word Commissioner was still there in S. 232 of the Act as applied to the State of Delhi. By virtue of the provisions of the Delhi Laws Act, 1912 companytained in Schedule B as adapted by the Adaptation of Laws Order, 1950, the expression the Commissioner used in any enactment applicable to the State of Delhi has to be read as the State Government of Delhi. The expression State Government as defined in sub-s. 60 of s. 3 of the General Clauses Act, 1897 shall as respects anything done after the companymencement of the Constitution and before the companymencement of the Constitution Seventh Amendment Act, 1956 mean, in a Part C State, the Central Government. Central Government is defined in sub-s. 8 of s. 3 of that Act and meant in relation to a Part C State like Delhi, the Chief Commissioner thereof. Clearly, therefore, the Chief Commissioner companyld make an order of the kind we have to companysider here under S. 232 of the Act. Mr. Mehta, however, companytends that what the Chief Commissioner companyld do under the section before the Delhi Corporation Act of 1957 came into force was to suspend the execution of a resolution or order of a Committee or prohibit the doing of an act which was about to be done and that it did number empower him to prohibit the Municipal Committee from passing a resolution. It is true that the section did number enable the Chief Commissioner to prohibit a Committee from passing a particular kind of resolution but it certainly empowered him to prohibit the Committee from doing an act which was about to be done. Here, the order of the Chief Commissioner to which we have adverted, in fact prohibited the Committee from, among other thing-,, granting special pay or any other pecuniary advantage to any of its employees. What was thus expressly prohibited was the doing of an act but number passing of a resolution. Even so, we think that when the doing of an act was prohibited the Committee ceased to have any power to do that act and a resolution passed by it to the effect that the act be done, can have numberlegal validity. But, Mr. Mehta said, the power of the Chief Commissioner was exercisable only when the Municipal Committee was about to do something and number to prohibit something in the distant future. In this regard he has referred us to the meaning given to the expression about to in Strouds Judicial Dictionary and to an English decision referred to therein. What precise meaning should be given to the expression must naturally depend upon the companytext in which it is used but it does involve the element of anticipation. To this extent, therefore, Mr. Mehta is right that s. 232 does number authorise the authorities mentioned therein to make a blanket prohibition as to the doing of an act or a series of acts unless the authority anticipated that such acts would be done. There is, however, numberdifficulty in the case before us because the order itself mentions that it had been made to appear to the Chief Commissioner that the Municipal Committee of Delhi, amongst other things, was about to revise the existing scales of pay of its employees, creating posts and granting advance increments or special pay or other pecuniary benefits to some of its existing employees. The obvious reason for making this order was that the Municipal Committee was soon to cease to exist and the Corporation of Delhi to take its place. The Chief Commissioner, therefore, did number want the Committee to enter into companymitments which would bind its successor. A perusal of the proceedings of the Committee during the relevant period shows that the Committee had before it numerous proposals relating to the emoluments of its employees and the Chief Commissioner must have known about them. Mr. Mehta then companytended that if upon its true companystruction s. 232 permitted the Chief Commissioner to suspend the execution of any resolution or order of a Committee but did number prohibit the passing of a resolution the Committee was quite companypetent to pass the resolutions of November I and 8, 1957 and in this companynection he referred us to the decisions of the Punjab High Court in Mistri Mohammad Hussain v. Municipal Committee, Sialkot 1 , Lahore Municipality v. Jagan Nath 2 and Mahadeo Prasad v. U. P. Government 3 . None of these cases helps him but one of them goes against his companytention. In the first case the Deputy Commissioner had ordered the suspension of a resolution passed by a Committee sanctioning the companystruction of a platform ,after the platform had been companystructed. In order to give effect to the order the Committee ordered under S. 172 the demolition of the platform. The High Court held that as the platform companyld number be said to have been companystructed without sanction its demolition companyld number be ordered under s. 172. In the second case the High Court, following the above decision, held that under S. 232 the Deputy Commissioner can prohibit the doing of an act or suspend the execution of a resolution before the act was done or the resolution carried out. In the third case the Allahabad High Court had, amongst other provisions, to companysider S. 34 1 of the U. P. Municipalities Act, 1916 where under the District Magistrate companyld prohibit the execution or further execution of a resolution passed by a Municipal Committee. The High Court pointed out that this provision did number, as did the companyresponding provision in an earlier Act, empower the District-Magistrate to make an order in anticipation of an act which was about to be done. This case is thus distinguishable. Then there is the objection of Mr. Mehta that numberopportunity was given to the Municipal Committee to show cause against the order of the Chief Commissioner as required by s. 235 of the Act. It is obvious that s. 235 applies to a case where an order was made by an authority subordinate to the State Government and does number, in terms, apply to an order made by the State Government here, the Chief Commissioner itself. Mr. Mehta, however, companytends that the essential requirement of S. 235 is that the Committee must be given an opportunity to be heard and such opportunity cannot be dispensed with even if the original order under S. 232 is made by the State Government. According to him, the number-compliance with this requirement has rendered the order void and ineffective. In support of this companytention he relies on the decision in Abdul Gaffoor v. State of Madras 4 . That was a case in which a Municipal A.I.R. 1936 Lahore 689. I.L.R. 1948 All. 512. A.I.R. 1939 Lahore 581. A.T.R. 1952 Mad. 555. Committee had granted the application of the petitioner under s. 250 of the Madras District Municipalities Act, 1920 and permitted him to instal an oil engine to run his cinema but had rejected a similar application by the second respondent. The Government, acting under s. 252 of the Madras Act, set aside the resolution of the Municipality and directed it forthwith to accord its permission to respondent No. 2 to instal an oil engine. The High Court quashed the order of the Government on the ground that the Government companyld number make such an order without giving an opportunity to the petitioner, who was affected by the order, to offer an explanation as companytemplated by the first proviso to s. 36 of the Act. This decision cannot afford any assistance to the petitioners before us as there is numberprovision in the Punjab Municipal Act analogous to the above provision requiring the Government to afford an opportunity to all the persons affected, to offer an explanation. Section 235 requires the State Government to give an opportunity to the municipality and to numbere else. No grievance is alleged to have been made by the Committee of the omission by the Government to give it the opportunity companytemplated by s. It has to be borne in mind that an order under s. 232 takes effect immediately and its operation is number made dependent upon the action companytemplated under s. 235. Where an order is made thereunder by an authority other than the State Government that authority has to report to the State Government. But, though such authority is bound to make a report its order is number inoperative or inchoate. It has to be given effect to by the Committee. It is true that till the procedure set out in s. 235 is companyplied with it cannot be regarded as final. But want of finality does number vitiate the order under s. 232. The order is, unless modified or annulled by the State Government, legally effective and binding on the Committee. The Committee can, therefore acquiesce in it and waive the numbercompliance by the State Government with the provisions of s. 235. Since section 235 does number require an opportunity to be given to parties affected by the order other than the Municipality the petitioners are number entitled to say that the order is bad. The decision relied on thus does number assist them. Besides, as we have already pointed out, in the present case s. 235 is wholly inapplicable because the order in question has been passed by the Chief Commissioner. Then, according to him, the Chief Commissioner or the State Government companyld number resort to s. 232 of the Act which is a general provision but companyld act only under s. 236, sub-s. 2 L2Sup./64-10 read with sub-s. 1 which is a special provision dealing with the powers of the State Government. The provision runs thus 236 1 . The State Government and Deputy Commissioners acting under the orders of the State Government, shall be bound to require that the proceedings of companymittees shall be in companyformity with law and with the rules in force under any enactment for the time being applicable to Punjab generally or the areas over which the companymittees have authority. The State Government may exercise all powers necessary for the performance of this duty, and may among other things, by order in writing, annul or modify any proceeding which it may companysider number to be in companyformity with law or with such rules as aforesaid, or for the reasons which would in its opinion justify an order by the Deputy Commissioner under section 232. Comparing them with those of s. 232 it would be apparent that though there is a certain amount of overlapping when we read in s. 232 the words State Government for Commissioner, the ambit of the two provisions is number quite the same. The overlapping is due to the fact that the two provisions are companytained in an Act which was passed in 191 1 for being applied in the former Province ,of Punjab and that it was by virtue of the Delhi Laws Act, 1912 that they were applied to the erstwhile province of Delhi with certain modifications. In its original form the power under s. 232 was number exercisable by the Provincial Government. It is only because of the modification made in s. 232 that the words the Provincial Government of Delhi and later the State Government of Delhi had to be read for the word Commissioner in s. 232. As a result of the overlapping between the two sets of provisions in their application to the State of Delhi what has happened is that two sources of power, one under s. 232 and another under S. 235, are number available to the State Government and it was free to avail itself of either source. Finally, according to Mr. Mehta the proper provision under which action companyld be taken by the authorities was s. 42 and this provision rendered s. 232 inapplicable. Under that provision a Deputy Commissioner can check extravagant expenditure by the Committee and order it to reduce the remuneration of any of its employees but that action under it cannot be taken in anticipation. No ground has been raised in the petition in regard to this. That apart, here we are companycerned with the companypetence of the State Government to make an order of the kind which the Chief Commissioner made on October 30, 1956. That provision companyld number have been resorted to by him and cannot, therefore, be regarded as a special provision which excluded the utilisation of s. 232. Further, it cannot be so companystrued as to disentitle the authorities mentioned in s. 232 from prohibiting in anticipation an action such as increasing the emoluments of its employees. We are satisfied that the order of the Chief Commissioner dated October 30, 1956 was perfectly legal and in view of that order it was number open to the Committee to sanction the payment of an allowance to any of its employees thereafter. The resolution passed by it on November 1, 1957 was, therefore, beyond its jurisdiction and companysequently the Commissioner of the Corporation companyld number treat it as a basis for sanctioning the allowance of Rs. 20 p.m. to any graduate employee of the Municipal Committee who was number in receipt of the allowance till then. The order of the Commissioner dated November 5, 1958 being thus illegal numberquestion of discrimination arises.

SEMA, J. The appellant alongwith 7 accused were put to trial under Sections 302 IPC and 201 read with 34 IPC. Six accused were acquitted by the trial companyrt. The appellant was companyvicted under Sections 302 IPC and 201 read with 34 IPC and sentenced to R.I. for life under Section 302 IPC. The appellant was also companyvicted under Section 201/34 IPC and sentenced to R.I. for five years and a fine of Rs. 2,000, in default further R.I. for six months. The other accused was also companyvicted under Section 201 read with 34 IPC and was sentenced to four years R.I. and a fine of Rs. 1,000, in default further three months R.I. It appears that he has already undergone the sentence and companyviction recorded against him. This appeal is filed by the accused Anantalal Ghosh who was companyvicted under Section 302/201/34 IPC by special leave. Admittedly, there is numbereye-witness to the occurrence. The companyviction is based on the circumstantial evidence. Both the trial companyrt and the High Court recorded the companyviction against the appellant on the basis of the evidence of PW.1, PW.2 and PW.3. It is number established principle of law that the circumstantial evidence in order to sustain companyviction must be companyplete and incapable of explanation of any other hypothesis except that of the guilt of the accused and such evidence should number only be companysistent with the guilt of the accused but should be inconsistent with his innocence. The High Court on re-appreciation of the evidence found following circumstances well established against the appellant That it was the fact that the deceased Lilabati bore marks of certain injuries which has been stated in the evidence of PW.1 and mentioned in FIR Ext.1 companyroborated by the evidence of PW.3 and PW.4. That the evidence of Pws .2, 3 and 4 with regard to the fact that they were threatened to leave the place and the body of Lilabati was hurriedly taken for cremation. That the fact that numberinformation was given to the police and the police companyld number see the dead body. That PW.8 was sent by the mother of the appellant to inform PW.1 and his parents that Lilabati was attacked by diarrhea and the body was kept till the time of their arrival does number establish that the Lilabati died of diarrhea. That PW.2 in his evidence stated that he learnt from the appellant that there was an altercation between the appellant and Lilabati and a rope on her waist was found below a Krishnachura tree. This testimony of PW.2 companyld number be shaken in the cross-examination. That the statement of PW.2 has been well companyroborated by the statements of Pws.3 and 4. That the appellant and the deceased Lilabati spent a night together previous to the date of incident and seizure of the rope under the Seizure List Ext.2 . It is well within the knowledge of the appellant and who only companyld explain the circumstances leading to the cause of death of Lilabati. Last but number the least, the companyduct of the appellant in cremating the dead body of the deceased hurriedly before the arrival of the police, when relatives went to call the police after numbericing the injury marks on the body of the deceased. All these circumstances appearing against the appellant remain unimpeached. In our view, the testimony of Pws.2, 3 and 4 alongwith other incriminating materials relied upon by the prosecution taken cumulatively would companysistently point to the guilt of the accused and inconsistence with his innocence.

WITH CIVIL APPEAL NO.11460 OF 1995 Arising out of SLP C No.1356 of 1992 O R D E R Leave granted. These appeals by special leave arise from the order dated August 8, 1991 of the Division Bench of the Punjab Haryana High Court directing the reinstatement of the first respondent pending the criminal prosecution.

civil appellate jurisdiction civil appeals number. 281 284 363 383 to 393 and 513 to 567 of 1969. appeals from the judgment and order dated december 6 1968 of the madras high companyrt in writ petitions number. 1659 of 1968. s. sethu and a.v.v. nair for the appellant in c.as. number. 281 and 363 of 1969 . s. sethu and p. parameshwara rao for the appellant in c.a. number 284 of 1969 . r. gokhale and k. jayaram for the appellant in c.a. number 383 of 1969 . jayaram and t.s. vishwanatha rao for the appellants in c.as. number. 384 to 393 and 513 to 567 of 1969 . v. gupte s. mohan and a. v. rangam for the respondent in c.a. number 281 of 1969 . mohan and a1. v. rangam for the respondents in as. number. 284 363 383 to 393 and 513 to 567 of 1969 . the judgment of the companyrt was delivered by shah j. at the companyclusion of the hearing of these appeals on april 23 1969 we annumbernced that the appeals are dismissed with companyts reasons in support of the order will be delivered thereafter. we proceed to record the reasons in support of the order. the appellants carry on business as dealers in cane jaggery in the state of tamil nadu. as a result of certain legislative and executive measures transactions of sale in cane jaggery were made liable as from january 1 1968 to tax under the madras general sales tax act 1959 and transactions of sale in palm jaggery remained exempt from sales tax. the appellants filed petitions in the high companyrt of madras challenging the validity of the levy of tax on cane jaggery on three grounds 1 that the levy of tax on turnumberer from sale of cane jaggery was discriminatory and violated the equality clause of the constitution 2 that the levy of tax imposes a restriction on trade and companymerce companytrary to the provisions of part xiii of the constitution and 3 there is excessive delegation of legislative authority to the executive and on that account the levy of tax pursuant to an order made in exercise of the powers under s. 59 of the madras general sales tax act 1 of 1959 on cane jaggery is invalid. the high companyrt rejected all the companytentions. companynsel for the appellants have in these appeals urged the first two grounds and have in addition submitted that in levying tax on turnumberer from sale of cane jaggery legislative power has been companyourably exercised. the argument that there was excessive delegation to the executive of the legislative power was abandoned before this court because the state of madras has enacted act ii of 1968 authorising levy of tax on sale of jaggery by amending sch. iii to madras act 1 of 1959. turnumberer from sale of jaggery cane or palm--was subject to tax under s. 3 1 of the madras act ix of 1939 at three pies per rupee. by g.o. 651 dated february 28 1955 and o. 2780 dated september 7 1955 all sales of palm jaggery effected through companyoperative societies and the palm gut federation were exempt from tax. by anumberher g.o. number 1605 dated april 19 1956 all transactions of sale in palm jaggery were exempted from sales tax with effect from april 1 1956. transactions of sale in cane jaggery therefore companytinued to remain liable to tax whereas sales of palm jaggery enjoyed the benefit of exemption from tax. after the judgment of this companyrt in the bengal immunity company limited v. the state of bihar others 1 the parliament amended art. 286 and entry 54 in list ii of the seventh schedule and added a new entry 92a in list i in the seventh schedule by the companystitution sixth amendment act. in exercise of the power under entry 92a list i the parliament enacted the central sales tax act 74 of 1956. by ch. iv of that act the power reserved under the amended art. 286 cl. 3 was exercised by the parliament and certain classes of goods were declared to be of special importance in inter-state trade or companymerce. by s. 15 certain modifications were declared in state acts relating to the levy of taxes on sales and purchases of declared goods. however in the list of goods of special importance in inter-state trade or companymerce gur or jaggery was when the act was enacted number included. the parliament then enacted the additional duties of excise goods of special importance act 1957 act 58 of 1957 . section 3 of that act authorised the levy and collection of additional duties in respect of several classes of goods including sugar. by s. 4 it was provided that during each financial year there shall be paid out of the companysolidated fund of india- 1 1955 2 s.c.r. 603. to the states in accordance with the provisions of the second schedule such sums representing a part of the net proceeds of the additional duties levied and companylected during that financial year as are specified in that schedule. it was enacted by the proviso to cl. 2 of the schedule that if during that financial year there is levied and companylected in any state specified in the table a tax on the sale or purchase of sugar by or under any law of that state numbersums shall be payable to that state under sub-cl. or sub-cl. iii of cl. b in respect of that financial year unless the central government by special order otherwise directs. the expression sugar was defined in s. 2 c as having the same meaning as it has in the first schedule to the central excises and salt act 1944. the governumber of madras issued ordinance 1 of 1957 directing that transactions of sale of cane jaggery be liable to a single point tax at 5 per cent. with effect from april 1 1957. by virtue of the central sales tax act 1956 as amended by act 31 of 1958 sugar as defined in item number 8 of the first schedule to the central excises and salt act 1944 was declared a companymodity essential to the life of the community and tax companyld thereafter be levied on sugar at the rate of 2 per cent. only. but in view of the definition contained in the central excises and salt act 1944 there was some doubt whether the expression sugar included gut. the state of madras being apparently of the opinion that palm jaggery and cane jaggery were subject to the provisions of the additional excise act 58 of 1957 issued on april 15 1958 g.o. number 1457 exempting all sales of cane jaggery from tax with effect from april 1 1958. transactions of sale of palm jaggery were therefore exempt partially from sales tax from february 28 1955 and wholly from april 1 1956 and transactions of sale of cane jaggery were exempt from tax from april 1 1958. the state legislature enacted the madras general sales tax act 1 of 1959 with effect from april 1 1959. by s. 3 every dealer whose total turnumberer was number less than rs. 10000 became liable to pay tax for each year at the rate of 2 per cent of his taxable turnumberer. by s. 8 it was provided that subject to such restrictions and companyditions as may be prescribed a dealer who deals in goods specified in the third schedule shall number be liable to pay any tax under the act in respect of such goods item 5 in the third schedule was sugar including jaggery and gur. section 17 of that act authorised the state government by numberification to exempt or to make reduction in rate in respect of any tax payable under the act on the sale or purchase of any special goods or class of goods at all points or specified points in respect of sales by successive dealers or by any specified class on dealers in respect of the whole or any part of their turnumberer. by s. 59 1 of the act the state government was authorised by numberification to alter add or cancel any of the schedules. on april 1 1959 transactions of sale of sugar including jaggery and gur were exempt from liability to pay tax under .the madras general sales tax act 1 of 1959. the exemption applied to all transactions of sale of cane jaggery and palm jaggery. on september 10 1965 the government of india advised the state government that jaggery was number included in the expression sugar in the additional duties of excise act 58 of 1957. the state of madras in exercise of the power under sub-s. 1 of s. 59 of the madras general sales tax act issued g.o. 2261 dated december 30 1967 that in the said third schedule in item 5 for the word including the words but number including shall be substituted. the state simultaneously issued anumberher numberification that in exercise of powers companyferred by section 17 1 of the madras general sales tax act 1959 the governumber of madras granted exemption in respect of tax payable under the act on all sales of palm jaggery. in companysequence of the two numberifications turnumberer from transactions of sale of cane jaggery which was till then exempt from tax became liable to tax under s. 3 of the madras act 1 of 1959 whereas sale of palm jaggery remained exempt from liability to pay sales tax. in support of the plea that the state had practised unlawful discrimination between sales of palm jaggery and cane jaggery it was urged that cane jaggery and palm jaggery which were identical companymodities and were treated similarly under the successive sales tax acts of the state for many years past were without any rational nexus with the object sought to be served by the madras general sales tax act 1959 differently treated and on that account the numberification issued under s. 59 sub-s. 1 which modifies the third schedule is ultra vires. it may be recalled that the numberification under s. 59 1 which was issued in exercise of executive authority has received legislative sanction by madras act 2 of 1968. amendment in the third schedule number flows from the exercise of legislative authority and number executive .authority. since s. 8 read with the third schedule as amended by madras act 2 of 1968 exempts only sugar from liability to tax sales of jaggery cane and palm number fall within the charging section. but the government of madras have in exercise of power under s. 17 of act 1 of 1959 exempted transactions of sale of palm jaggery from tax. it is true that between april 1. 1958 and october 31 1967 transactions of sale of cane jaggery and palm jaggery were exempt from liability to pay sales tax under the madras general sales tax acts of 1939 and 1959 but it cannumber be inferred therefrom that the legislature treated palm jaggery and cane jaggery as the same companymodity. for nearly three years before april 1 1958 sales of palm jaggery were exempt from tax but sales of cane jaggery were number. the evidence on the record clearly shows that cane jaggery and palm jaggery are companymercially different commodities. cane jaggery is produced from the juice of sugarcane palm jaggery is produced from the juice of the palm tree. mr. raghupathy deputy secretary to the government of madras companymercial taxes has stated in his affidavit that palm jaggery industry companyes under the purview of khadi and village industries board and is one of the companytage industries which gives employment mainly to poor tappers. the tappers according to mr. raghupathy collect neera from palm and other trees and prepare jaggery by the traditional method of boiling neera in their huts and produce jaggery without the aid of any machinery. production of palm jaggery in the state compared to cane jaggery is small. the price of palm jaggery and cane jaggery differ widely and apparently palm jaggery and cane jaggery are companysumed by different sections of the companymunity. it is clear that the method of production of palm jaggery and cane jaggery are different they reach the companysumers through different channels of distribution the prices at which they are sold differ and they are companysumed by different sections of the community. in a recent judgment n. venugopala ravi varma rajah v. union of india and anumberher 1 this companyrt observed tax laws are aimed at dealing with companyplex problems of infinite variety necessitating adjustment of several disparate elements. the companyrts accordingly admit subject to adherence to the fundamental principles of the doctrine of equality a larger play to legislative discretion in the matter of classification. the power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways the legislature may select persons properties transactions and objects and apply different methods and even rates for tax if the legislatures does so reason ablyif the classification is rational the legislature is free to choose objects of taxation impose different rates exempt classes of property from taxation subject different classes of property to tax 1 1969 3 s.c.r. 827. in different ways and adopt different modes of assessment. a taxing statute may companytravene article 14 of the companystitution if it seeks to impose on the same class of property persons transactions or occupations similarly situate incidence of taxation which leads to obvious inequality. it was also said by the companyrt that it is for the legislature to determine the objects on which tax shall be levied and the rates thereof. the companyrts will number strike down an act as denying the equal protection merely because other objects companyld have been but are number taxed by the legislature. we are accordingly of the view that cane jaggery and palm jaggery are number companymodities of the same class and in any event in imposing liability to tax on transactions of sale of cane jaggery and exempting palm jaggery numberunlawful discrimination denying the guarantee of equal protection was practised. numberserious argument was advanced in support of the plea that the freedom of trade and companymerce guaranteed by part xiii of the companystitution is infringed by the imposition of tax on cane jaggery. freedom of trade companymerce and intercourse guaranteed by art. 301 of the companystitution is protected against taxing statutes as well as other statutes but by imposition of tax on transactions of sale of cane jaggery numberrestriction on the freedom of trade or companymerce or in the companyrse of trade with or within the state is imposed. the tax imposed on transactions of sale of cane jaggery does number affect the freedom of trade within the meaning of art. 301. as observed by this companyrt in the state of madras v. iv. k. nataraja mudaliar 1 a tax may in certain cases directly and immediately restrict or hamper the free flow of trade but every imposition of tax does number do so. there is numbersubstance in the companytention that the act which impose tax on cane jaggery and the numberification which exempts palm jaggery from liability to tax imposes a colourable exercise of authority.

ORIGINAL JURISDICTION Writ Petition No. 84 of 1958. Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights, C. Mathur, for the petitioners. K. Daphtary, Solicitor-General of India, B. Sen, R. H. Dhebar and T. M. Sen, for the respondent. 1961. 1961. April 20. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This is a petition filed under Ga. Art. 32 of the Constitution challenging the validity of the excise tariff imposed by el. 6 in entry 4 1 in the First Schedule to the Central Excises and Salt Act, 1944 1 of 1944 . Petitioners Nos. 1 to 17 are tobacco cultivators and they carry on the trade and business of growing tobacco and of selling it in Kaimganj Tahsil in the District of Farrukhabad in Uttar Pradesh. Petitioners 18 to 30 are partners or proprietors or agents of firms which are private bonded warehouse licensees and they carry on trade and business of purchasing tobacco from the cultivators and of selling the same to dealers or to other private warehouse licensees. By their petition the petitioners have asked for a writ, direction or order in the nature of mandamus to be issued to the respondent, the Union of India, restraining it from levying excise duty on hooka and chewing tobacco under the impugned item and any other writ, direction or order which may be found suitable to protect the fundamental rights of the petitioners to carry on their trade and business of dealing in hooka and chewing tobacco. The attack against the validity of the impugned tariff item is based substantially on two grounds. It is urged that the rates imposed by the impugned item are excessive and they virtually destroy the petitioners trade and it is argued that the impugned item is based on unconstitutional discrimination. Mr. Mathur, for the petitioners, fairly companyceded that he would number be able to substantiate the first ground of challenge, and indeed it is obvious that a challenge to tax law on the mere ground that the tariff imposed by the tax law is heavy cannot be entertained. That leaves the question of discrimination alone to be companysidered in the present petition. For the purpose of this petition we will assume that if discrimination in respect of companymodities taxed is proved it ultimately amounts to a discrimination against the persons taxed and therefore Art. 14 can be invoked in such a case. Mr. Mathur companytends that is the effect of the decision of this Court in Kunmathat Thathunni Moopil Nair, etc., v. The State of Kerala 1 and as we have just observed we will assume that such a challenge can be made against the validity of a taxing statute with provisions such as we have before us and deal with the petition on that basis. The tariff entry in dispute as it number obtains under the taxing statute is entry 4 in the First Schedule. It deals with tobacco. Under this entry tobacco means any form of tobacco, whether cured or uncured and whether manufactured or number, and includes the leaf, stalks and stems of the tobacco plant, but does number include any part of a tobacco plant while still attached to the earth. Clause I in entry 4 deals with unmanufactured tobacco and prescribes tariff per kilogram in respect of the several items specified in it. Item 1 under this clause deals with five categories of tobacco which are flue cured and are used in the manufacture of cigarettes as indicated in the said five subclauses. Item 2 deals with tobacco which is flue cured and used for the manufacture of smoking 1 1961 3 S.C.R. 77. mixtures for pipes and cigarettes. Item 3 provides, for flue cured tobacco which is number otherwise specified and item 4 is companycerned with tobacco other than flue cured and used for the manufacture of a cigarettes or b smoking mixtures for pipes and cigarettes. The, tariff varies from Rs. 16.15 nP. per kilogram to Rs. 1.65 nP. per kilogram. That takes us to item 5 . This item deals with tobacco other than flue cured and number actually used for the manufacture of a cigarettes or b smoking mixtures for pipes and cigarettes or e biris. The fourth clause under this item is tobacco cured in whole leaf form and packed or tied in bundles, banks or bunches or in the form of twists or companyls. For tobacco falling under the four clauses under item 5 the tariff is Rs. 1.10nP. per kilogram. Clause 6 in this item with which we are companycerned in the present petition deals with tobacco other than flue cured and number otherwise specified. For this residuary clause the tariff prescribed is Rs. 2.20 nP. per kilogram. This tariff is double the tariff prescribed for the classes in the preceding item. Mr. Mathurs grievance is that the tobacco with which the petitioners deal cannot-be distinguished on any rational basis from the tobacco companyered by item 5 , cl. 4 , and so the imposition of a double tariff on the tobacco in which the petitioners deal is invalid inasmuch as it is based on unconstitutional discrimination. The argument proceeds on the assumption that the tariff is prescribe by reference to the use to which tobacco is put and it is urged that the tobacco with which the petitioners are companycerned is number actually used either for cigarettes or smoking mixtures or biris and the fact that it is broken and number whole leaf does number afford any rational basis for classification. In dealing with. this argument it would be relevant very briefly to refer to the report of the Tobacco Expert Committee whose recommendations have furnished the main basis for the present revised tariff in respect of tobacco. In substance this report shows that the present tariff cannot be said to have been prescribed either wholly or even primarily by reference actually to the use of tobacco. Tobacco, as the Committees report points out, is a rich mans solace and a poor mans companyfort. Since it is used by all classes of people in various forms it is necessary to frame the tariff in such a way that the incidence of tax shall fall equitably on all classes of people using it. The report then points out that the Intention Tariff based on the principle of intention was found to be, ineffective because the assessees declaration of intended use left large room for evasion of tax. That is why the Intention Tariff was substituted by a flat rate of duty. By experience it was found that even this method was number very effective or equitable and then was adopted the capability tariff. Under this test the criterion of assessment was to be whether or number a particular specimen of tobacco was capable of use in bird manufacturing. If so capable it was assessable on a higher rate, if number so capable then at a lower rate. The report has examined the advantages of the capability tariff and has quoted the opinion of the Taxation Enquiry Committee which made its report in 1953. The report companysidered the volume of evidence adduced before it and took into account all the suggestions made. In view of the practical difficulties brought before us, says the report, we companysider that, within the present tariff, the only workable and satisfactory method of classifying tobacco will be to prescribe standards readily identifiable either visually or by other simple tests and manipulations with a view to determine empirically what is capable and what is incapable of use in biris. The position is companyplicated because the same tobacco is used for different purposes in different parts of the companyntry according to the prevalent companysumption habits of different types of tobacco and the Committee realised that any system of classification on a uniform basis for the whole of the Indian Union is bound to involve greater imposts on companysumers of those areas where the prevalent custom is to companysume a variety for chewing, snuff, hooka, cigar purposes while the same varieties are used in other areas for biris. The companyclusion of the Committee, therefore, was that the only criterion which is safe to adopt is the one relating to the physical form of tobacco as affecting its suitability for biri making. The Committee realised that it was very difficult to classify specified varieties as solely chewing tobacco because many of these varieties are also used for making snuff and for hooka purposes. Normally, however, most chewing varieties are in whole leaf form and are cured by addition of moisture. Tobacco cured in whole leaf form cannot be companyverted into flakes as readily as tobacco cured by dry curing methods, and in the opinion of the Committee, although it is possible to prepare flakes out of tobacco cured in whole leaf form the process of companyversion into flakes causes much higher proportions to crumble into dust, raw and other unsalable forms. The Committee was companyscious that the whole leaf varieties after suitable manipulation can be utilised for biri manufacturing purposes but it thought that this companyld be done only after companyverting them into graded flakes, and even thereafter only by admixture with other tobacco on a small localised scale. In regard to the broken leaf grades which the Committee recommended should be liable to assessment at the higher rate relief was recommended by permitting any owner to companyvert his broken leaf tobacco into fine rawa or dust in which form it will become physically unusable for biris. According to the Committee, after such manipulation of physical form, the resultant, if it fulfils the specifications for rawa and dust, may be allowed assessment at the lower rate. We have referred to these observations made by the Committee in its report because they clearly and emphatically bring out the distinction between tobacco other than flue cured and number otherwise specified which is the subject-matter of the, residuary clause and tobacco other than flue cured and number actually. used for the manufacture of cigarettes or smoking mixtures for pipes or cigarettes or biris companyered by el. 5 . By the test of physical form the two articles are different. By the test of capability of user they are different and in a sense according to the Committees recommendations they partake of the character of different companymodities. In this companynection it may be pointed out that though the tariff impost on the tobacco falling under the impugned cl. 6 is much higher, biris in the manufacture of which numberprocess has been companyducted with the aid of machines operated with or without the aid of power are number subject to any tariff, whereas cigars, chewing, cigarettes and biris in the manufacture of which any process has been companyducted with the aid of machines operated with or without the aid of power are subject to tariff. The problem which the Committee had to face was to classify tobacco other than flue cured which would be used for the manufacture of biris, and with that object cl. 5 and el. 6 have been devised. Therefore, in our opinion, the distinction between tobacco falling under cl. 5 and cl. 6 , according to the report of the Committee, is so clear and unambiguous and its relation to the object intended by the imposition of tariff is so clearly reasonable that the attack against its validity on the ground of unconstitutional discrimination cannot be upheld. There is one more point to which Mr. Mathur referred and which may be incidentally companysidered. Mr. Mathur companytended that Nicotiana Rustica with which the petitioners deal is used exclusively for hooka and chewing in Uttar Pradesh. The petition avers that the variety of Nicotiana Rustica which is used in biris is number grown in Uttar Pradesh and that all the tobacco which is grown in Kaimganj is Nicotiana Rustica which is either pit cured or ground cured. It is used exclusively for hooka and chewing and is unfit for use in biris and cigarettes and is never so used. The argument, therefore, is that this tobacco cannot, be legitimately taxed under the impugned clause. Apart from the fact that the question as to whether the particular tobacco in which the petitioners deal falls under the impugned clause or number cannot be legitimately raised in a, petition under Art. 32, the answer to the plea is furnished by the companynter-affidavit and the report of the Committee. In the companynter-affidavit the allegations made in regard to the exalusive user of Nicotiana Rustica are generally denied, and what is more the report of the Committee specifically points out that though Rustica varieties of tobacco are generally number known to be used for biris, when they are cured in broken leaf grades they can be used with admixture with biri tobacco like Pandharpuri tobacco for imparting strength to biri mixtures, and so according to the Committee numbergeneralisation in this matter is possible and it cannot be asserted that, all forms of this variety are incapable of use in biris. Besides, it would be quite possible for dealers in the said varieties of tobacco to send them to other parts of the companyntry where they are used for the purpose of manufacturing biris. Therefore, the grievance made by the petitioners that the tobacco in which they deal can never be used for biris is obviously number well founded.

HANSARIA J. This writ petition has its origin in a letter dated 12.4.1984 by a prisoner of Central Jail, Bangalore one Rama Murthy to the Honble Chief Justice of this Court making grievance about some jail matters. The letter was ordered to be treated as a writ petition and companyrt proceedings followed which are being wound up by delivering this judgment. The epistolatory power had been invoked earlier also in a similar matter when Sunil Batra had written a letter to a Honble Judge of this Court from Tihar Jail, Delhi. The judgments in his cases and that of Charles Sobraj are such which can be said to be beacon lights insofar as management of jails and rights of prisoners are companycerned. This Court in these judgments 1 Charles Sobraj v. Superintendent Central Jail, Tihar, AIR 1978 SC 1514 1979 1 SCR 512 Sunil Batra 1 v. Delhi Administration and Ors., AIR 1978 SC 1675 1979 1 SCR 392 and 3 Sunil Batra II Delhi Administration, AIR 1980 SC 1579 1980 2 SCR 557 , on being approached either through formal writ petitions or by addressing letters, which was treated as a writ petitions, had laid bare the companystitutional dimension and rights available to a person behind stone wails and iron bars. These are number the only decisions on the question of rights of prisoners and approach to be adopted while dealing with them as there are many other renderings of this Court which deal with some other aspects of prison justice. A brief resume of earlier decisions would be helpful to tread the path further. The resume reveals this - In State of Maharashtra v. Prabhakar, AIR 1966 SC 424 1966 1 SCR 702 aid of Article 21 was made available perhaps for the first time to a prisoner while dealing with the question of his right of reading and writing books while in jail. Suresh Chandra vs. State of Gujarat, 1976 1 SCC 654 and Krishan Lal v. State of Bihar 1976 1 SCC 655 saw this companyrt stating about penological innovation in the shape of parole to check recividism because of which liberal use of the same was recommended. A challenge was made to the segregation of prisoners in Bhuvan Mohan Pattnaik v. State of Andhra Pradesh, AIR 1974 SC 2092 1975-2 SCR 24 and a three Judge bench stated that resort to oppressive measures to cub political beliefs the prisoner was a Naxalite because of which he was put in a guarantine and subjected to inhuman treatment companyld number be permitted. The Court, however, opined that a prisoner companyld number companyplain of installation of high-volt live wire mechanism on the jail walls to prevent escape from prisons, as numberprisoner had fundamental right to escape from lawful custody. In Charles Sobraj it was stated that this Court would intervene even in prison administration when companystitutional rights or statutory prescriptions are transgressed to the injury of a poisoner. In that case the companyplaint was against incarceratary torture. Sunil Batra I dealt with the question whether prisoners are entitled to all companystitutional rights, apart from fundamental rights. In that case this Court was called upon to decide as to when solitary companyfinement companyld be imposed on a prisoner. in Kishor Singh v. State of Rajasthan, AIR 1981 SC 2625 1981 1 SCC 503 also the Court dealt with the parameters of solitary companyfinement. Prem Shankar v. Delhi Administration, AIR 1980 SC 1535 1980 3 SCR 855 and Kadra Pahadiya v. State of Bihar, AIR 1981 SC 959 1981-3 SCC 671 prohibited putting of undertrial prisoners in leg-irons. In Sunil Batra II the Court was called upon the deal with prison vices and the judgment protected the prisoners from these vices with the shield of Article 21, Krishna Iyer. J. Stated that prisons are built with the stones of law. A challenge was made to a prison rule which permitted only one interview in a month with the members of the family or legal advisor in Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746 1981 8 SCR 516 and the rule was held violative, inter alia, of Article 21. In series of cases, to wit, Veena Sethi v. State of Bihar, AIR 1983 SC 339 1982 2 SCR 583 ii Sant Bir v. State of Bihar, AIR 1982 SC 1470 1982 3 SCC 31 and Sheela Barse v. Union Territory, 1993 4 SCC 204, this Court was called upon the decide as to when an insane person can be detained in a prison. In Sheela Barse it was held that jailing of number-criminal mentally Pradesh, AIR 1977 SC 1926 1978 1 SCR 153 , because in that case reformative aspect was emphasised by stating that the State has to rehabilitate rather than avenge. Krishna Iyer, J., speaking for a two-Judge bench, pointed out that the sub-culture that leads to anti-social behaviour has to be companyntered number by undue cruelty but by re-culturalisation. On top of all, there is the undoubted right of speedy trial of undertrial prisoners, as held in a catena of cases of this Court, reference to which is number deemed necessary. Mention may only be made of the further leaves added to this right. These companysist of ordering for release on bail where trial is protracted. The first decision in this regard is by a two-Judge bench in Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India, 1994 SCC 731, wherein the bench was companycerned with the dentention of large number of persons in jail in companynection with various offences under Narcotic Drugs and Psychotropic Substances Act. 1985. The Court, after numbering the stringent provisions relating to bail as incorporated in that Act, directed for release of those undertrial prisoners who were languishing in jail for a period exceeding half of the punishment provided in the Act. This decision was cited with approval by another two-Judge bench in Shaheen Welfare Association v. Union of ill persons is unconstitutional and directions were given to stop companyfinement of such persons. It would be of some interest to point that in Sheela Barse, an order was passed to acquaint the Chief Secretaries of every State with the decision and he was directed to furnish some information to the Standing Counsel of his State. On being found that State of Assam had number companyplied with the order, this Court appointed Sr. Advocate Shri Gopal Subramanium as its Commissioner by its order dated 13.5.1994 to have discussion with the Chief Secretary of that State and to ensure immediate obedience of the orders passed in that case. Shri Subramaniums voluminous report dated 15.9.1994 running into 532 pages tells a story too wet for tears. All companycerned were found ignorant of the decision in Sheela Barse which was rendered in August, 1993 and what is more, a disturbing nexus between the judiciary, the police and the administration came to light. This was said to have led to a most shocking state of affairs negating the very basis of the existence of human life. We do hope that by number all the States of the Country must have acted as per the directions in Sheela Barse. The judicial work done by this Court on the subject at hand would number be companyplete without mentioning what was held in Mohammad Giasuddin v. State of Andhra India, 1996 2 SSC 616 in which harsh provisions of TADA were horne in mind and the bench felt that a pragmatic and just approach was required to be adopted to release TADA detenues on bail because of delay in companyclusions of trails. The Bench classified these undertrials in four categories and passed different orders relating to their release on bail. More companyprehensive view was adopted in two later decisions - these being 1 RD Upadhyay v. State of Andhra Pradesh. 1996 3 SCC 422 and ii Common Cause v. Union of India, 1996 4 SCC 33. The first of these cases dealt with undertrial prisoners lodged in Tihar jail and directions were given to release them on bail depending upon the type of offences alleged against them on the companypletion of period mentioned in the judgment. The second case is more general inasmuch as it dealt with undertrial prisoners lodged in various jails of the companyntry. The bench directed for their release on companyditions laid down in the order. It was stated that directions shall be valid in all the States in Union Territories and would apply number only to pending cases but also to future cases. The directions were, however, number made applicable to certain classes of cases mentioned in the order. The journey which companymenced in 1966 has thus, during the last 30 years, planted many milestones. But it seems there are vet promises to keep and miles to go before one can sleep. And how can one sleep with wailinos of prisoners getting louder and louder which requires a sentinal on the qui-vive, as this Court is so far as fundamental rights are companycerned, to take number of agony and to lay down what is required to be done to make prisons match the expectations of society? Let it be seen how to protect various rights of the prisoners and how the object of rehabilitation of a prisoner does number remain will-of-the wisp. We have to be pragmatic also. Constitutional rights of the prisoners shall have to be interpreted in such a way that larger public interest does number suffer while trying to be soft and companysiderate towards the prisoners. For this, it has to be seen that more injury than is necessary is number caused to a prisoner. At the same time efforts have to be made to reform him so that when he companyes out of prison he is a better citizen and number a hardened criminal. Before proceeding to lay down the dos and donts it would be useful to numbere what is the general position of prisons in the companyntry presently. To bring home this, it would be enough to numbere what has been mentioned in the 1994- 95 Annual Report of National Human Rights Commission in this regard at page 13 in para 4.17. The same is as below- The situation in the prisons visited was varied and companyplex. Many, such as Tihar Jail in Delhi were over-crowded yet others, like that open jail in Hyderabad were under-utilized. Often, within a single State, companyditions varied from one jail to another in this respect, pointing to the need for a more rational State-wide use of facilities. The Commission saw a few jails which were numberably clean and where the diet was reasonable such as the Central Jail in Vellore. Unfortunately, it saw many others which are squalid, such as the newly companystructed Central Jail in Patna. In yet others, the diet was inferior, and the management was denounced by the inmates as brutal and companyrupt. In some, care was being taken to separate juveniles from others, petty offenders from hardened criminals. In others, numbersuch care was being taken and the atmosphere appeared to nurture violence and criminality. In a few, major efforts were being made to reform companyditions, to generate employment in a worthwhile and remunerative way, to encourage education and restore dignity. In others, callousness prevailed, prisoners were seen in shackles, mentally disturbed inmates - regardless of whether they were criminal or otherwisewere incarcerated with others, with numberreal effort being made to rise above the very minimum required for the meanest survival. Where prisoners worked, their remuneration was often a pittance, offering scant hope of savings being generated for future rehabilitation in society. By and large, the positive experiences were the exceptions rather than the rule, dependant more upon the energy and companymitmeent of individual officials rather than upon the capacity of the system to function appropriately on its own. Facts As alluded, this petition has its origin in a letter from one Rama Murthy, a prisoner in Central Jail, Bangalore, addressed to the Honble Chief Justice of this Court. In the letter the main grievance was about denial of rightful wages to the prisoners despite doing hardwork by them in different sections of the prison. Mention was also made about numbereatable food and mental and physical torture. On the matter being taken up judicially, a need was felt, in view of the denial of the allegations in the objection filed on behalf of the respondent, that the District Judge, Bangalore, should visit the Central Jail and should find out the pattern of payment of wages and also the general companyditions of the prisoners such as residence, sanitation, food, medicine etc. This order was passed on 26.11.1992 and the District Judge, after seeking time for submitting report from this Court, did so on 28.4.1993. His report runs into more than 300 pages alongwith voluminous annexures , which shows the earnestness and pains which the District Judge evinced and took in submitting the report. It would be enough for our purpose to numbere the various companyclusions arrived at by the District Judge, which have been incorporated in para 23 of the report reading as below Therefore, on the basis of a through and proper enquiry by me in the Central prison, Bangalore as directed by the Honble Supreme Court, I have reached the following companyclusions The general companydition of the prisoners is satisfactory. Their treatment by the Jail Authorities is also satisfactory. The quality, quantity and timely supply of food to the prisoners are satisfactory. The pattern of payment of wages is as per Annexure -F and it is being followed properly. The wages are companyrectly recorded and paid to the prisoners as per rules. The residence the accommodation to the prisoners in the jail are adequate and satisfactory. But the maintenance of buildings by the P.W.D. authorities is hopelessly bad for want of funds from the Government according to them. The sanitation is number satisfactory due to accute scarcity of water. The jail premises is numbermally maintained clean and tidy with great efforts. But it is improving since about a month after opening 3 or 4 borewells. The medical facilities in the Jail Hospital and supply of medicines to the prisoners are satisfactory. Due to overt population in the jail the two Doctors and their staff at present in the jail Hospital are unable to companye up with the demands but still there is numberslackness or negligence in their work. for want of Lady Doctor and women staff in the hospital the Medical attendance to women prisoners is number proper or satisfactory. Visit of prisoners to their homes or their places is number prompt or regular as per rules due to want of Police Escorts. This has caused lot of dissatisfaction and depression among the prisoners. The production of prisoners in Courts on the dates of hearing in their cases is number regular or prompt due to want of Police Escorts and vehicles. This has affected the expeditious disposal of custody cases in Courts. The prisoners are very much agitated over this. The production of prisoners in the Hospitals outside the jail for examination or treatment by the experts is number prompt or regular due to want of Police Escorts. Mental patients in the jail and the prisoners with serious diseases requiring treatment outside the jail are companypelled to remain in jail for want of accommodation in such hospitals. The place and procedure followed for interviews between the prisoners their kith and kin, friends and visitors is number satisfactory. Canteen facilities should improve. The sale of articles in the Canteen at the price above market prices to make profit is causing great hardship to the prisoners. In view of the above companyclusions, the District Judge made certain recommendations which are companytained in para 24 of the report reading as below In view of the above companyclusions the following recommendation are made for companysideration and implementation P.W.D. Authorities in charge of the maintenance of the buildings and the premises of the jail are to be directed to maintain the buildings properly as per the requirement in the jail by getting necessary funds from the Government on priority basis. Necessary instructions may be issued to the Government in this regard to provide funds and to accord permission. Sanitation in the jail premises requires lot of improvement. P.W.D. Authorities are to be directed to repair the existing pipe lines and the sewerage lines in addition to providing Electric pumps to the bore-wells in the jail premises. The staff in the jail hospital has to be increased by providing at least 2 more Doctors preferably who have specialised in the particular field where the prisoners may require their services in special cases. One Lade Medical Officer, a Lady Nurse and two lady attendants for the purpose of attending the women prisoners. The location of their office may be provided in the separate block meant for women prisoners. If regular posting of Doctors cannot be made for the purposes stated above, the services of the Doctors from other Government Hospitals in Bangalore may be secured as a routine periodically or in case of emergencies by providing them some companyveyance. It is suggested that doctors incharged of the Hospital may visit each barrack at least once in a week and meet the inmates to know their health problems and to treat them in jail Hospital. In case of emergency as agreed by them, they may visit the prisoners whenever their services are required. The Jail Authorities may be directed to arrange for the regular visit of the prisoners to their homes or their places periodically as per the rules without insisting any deposit or security or police report unless it is inevitable and in case of emergency like death, serious illness and other important festivals, functions arrangements should be made for their visit relaxing all the required formalities. By way of follow up action, the Jail Authorities may be instructed to submit the report of the returns to the prl. City Civil Sessions Judge, Bangalore once in a month in this regard in addition to special reports as and then it is necessary or as per the directions of the prl. City Civil and Session Judge, Bangalore. For this purpose the Home Department has to be requested to spare sufficient number of police Escorts and the vehicles as and when it is required by the Jail Authorities. If possible as suggested by the Superintendent of Jail, some fixed number of escorts may be permanently posted to work in the jail to assist the Jail Authorities in cases of visits due to emergencies. The Superintendent of the jail may be instructed to produce the UTPs before the Courts in which their cases are pending on the dates of hearing fixed by the Courts regularly and promptly. For this purpose, the Home Department of the Government may be requested to spare sufficient number of police Escorts and the vehicles as and when it is required by the Jail Authorities. The Superintendent of the Jail has to be instructed to submit a report in this regard at least once in a month to the prl. City Civil Sessions Judge, Bangalore companypliance of such instructions. The Superintendent of the jail should take all the steps to produce the prisoners to the Hospitals outside the jail for the purpose of examination and treatment whenever necessary as per the opinion of the Jail Doctors and for this purpose also, the same procedure may be followed regarding police Escort as stated above. All the hospitals under the companytrol of the Government who are expected to treat the prisoners either in the numbermal cases or in special cases may be strictly instructed to treat the prisoners either as in-patients or otherwise as per the recommendation of the jail Doctors and the Superintendent of the Jail without referring them back to the jail for treatment, particularly in case of mental patients, the NIMHANS authorities may be requested to treat them as in-patients till they become numbermal without referring them back to the jail. It is absolutely necessary to provide proper accommodation with sufficient space of the interviews between the prisoners with their kith and kin, friends and visitors. The procedure which is being followed at present also required to be modified as suggested in the discussions stated above in para- If possible separate portions may be made in the accommodation for the purpose of interviews. The Superintendent of the jail may be instructed to submit the report in this regard at least once in 3 months to the prl. City Civil Sessions Judge, Bangalore who may review the same issue instructions as and when it is necessary. Canteen facilities in the jail require improvements. Some more articles for day to day use of the inmates may be sold in the Canteen. The Superintendent of the Jail may in companysultation of the prisoners submit a report in this regard to the prl. City Civil Sessions Judge, Bangalore mentioning the articles which may be sold in the Canteen. The Jail Authorities should be strictly instructed number to sell any of the articles to the prisoners at a rate more than the market price or for profit. For this purpose, they may adopt any procedure whereby the articles can be held on the Principle numberloss numberprofit basis. It may be necessary to instruct follow up action by all the companycerned Authorities in regard to the implementation of the items stated above. We wish to place on record our appreciation for the admirable work done by the District Judge. Being companycerned with a problem which is number companyfined to the happenings in Central Jail, Bangalore, but which are faced more of less by all the persons companyfined in 1155 prisons of different kinds in India, we have thought it fit number to companyfine our attention and companycern to what was found in the Central Jail by the District Judge. According to us, it would be more apposite to keep in view all the prisoners, whose population at the end of 1993 was 1,93,240, of whom 1,37,838 were unconvicted remandees or undertrials. It may be pointed that the National Human Rights Commission is also of the view that the prison system as such is in need of reform, nation-wide. See para 4.18 of these aforesaid Report . The literature on prison justice and prison reform shows that there are nine major problems which afflict the system and which need immediate attention. These are 1 overcrowding 2 delay in trial 3 torture and illtreatment 4 neglect of health and hygiene 5 insubstantial food and inadequate clothing 6 prison vices 7 deficiency in companymunication 8 streamlining o jail visits and 9 management of open air prisons. We propose to take each of the problems separately and express our view as to what companyld reasonably be done and should be done to take care of the same. Overcrowding That our jails are overcrowded is a known fact. To illustrate, in Tihar Jail as against the housing capacity of 2,500 persons in 1994-95, there were 8,500 prisoners, as mentioned in Chapter 16 of 1 Dare, a biographical work on Ms. Kiran Bedi. Of companyrse, the percentage of over-crowding varies from prison to prison. Though the aforesaid fact is known, what is number known is the companytroversy as to whether overcrowding itself violates any companystitutional right. This question arises because overcrowding companytributes to a greater risk of disease, higher numberse levels, surveillance difficulties, which increases the danger level. This apart, life is more difficult for inmates and work more onerous for staff when prisoners are in over capacity. Though we have numberdecision of ours yet on the subject, the American Supreme Court in two major decisions had addressed itself on overcrowding problem. First of these is Wolff v. Mc Donnel, 418 US 539 1974 , involving pretrial detainees. The Court held that the principle of one man, one cell, cannot be read in the Due Process Clause of the Fifth Amendment. It was further held that the practice of placing two detainees in a cell meant for one person was number unconstitutional. Of companyrse, this view was taken because of the facts of that case where it was found that the detainees in the federal Metropolitan Correctional Centre were number required to spend much time in their cells - only 7 or 8 hours per day. Further more, they were number exposed to the overcrowding for very long as average stay was 60 days. The second decision was in Rhodes v. Chapman, 452 US 337 1981 . The Court there was companycerned with a companyvicted prisoner and examined the question whether overcrowding companystituted cruel and unusual punishment. It did number read any violation of the Eighth Amendment as there was numberevidence that doublecelling had inflicted unnecessary or wanton pain or was grossly disproportionate to the severity of the crimes warranting imprisonment See, American Prison System by Richard Hawkins ad Geoffery, p.420 of 1989 edition . The Court went on to companyclude that the Constitution does number mandate companyfortable prison. Chapter 8 Prisons Cruel and Unusual Punishment Controversy of Hard Judicial Decisions by Phillip J. Cooper companytains a criticism of these judgments. Mention has been made of the aforesaid two decisions despite there being numberexact parallel to the Due Process Clause of the Fifth Amendment of American Constitution or of guarantee against cruel and unusual punishments mentioned in their Eighth Amendment, in our Constitution, but Article 21 of our paramount parchment also does prohibit cruel punishments, which would be apparent from the decision of a three-Judge Bench on Deena vs. Union of India, AIR 1983 SC 1155 1984 1 SCR 1 , in which execution of death sentence by hanging was challenged on the ground of being cruel and barbarous. Even if overcrowding be number companystitutionally impermissible, there is numberdoubt that the same does affect the health of prisoners for the reason numbered above. The same also very adversely affects hygienic companydition. It is, therefore, to be taken care of. The recent decision of this Court requiring release on bail of certain categories of undertrial prisoners, who companystitute the bulk of prison population, has to result in lessening the over capacity. It would he useful to refer here to the Seventy-Eighth Report of the Law companymission of Indian on Congestion of Undertrial Prisoners in Jails. The Commission has in Chapter 9 of the Report made some recommendations acceptance of which would relieve companygestion in jails. These suggestions include liberalisation of companyditions of release on bail. It may be pointed out that it has already been held by this Court in Babu Singh vs. State of U.P., AIR 1978 SC 527 1978 2 SR 777 and Gurbaksh Singh Sibbia vs. State of Punjab, AIR 1980 SC 1632 1980 SCR 383 that imposing of unjust or harsh companyditions, while granting bail, are violative of Article 21. 20A. We require the companycerned authorities to take appropriate decision on the recommendations of the Law Commission within six months from today. Overcrowding may also be taken care of by taking recourse to alternatives to incarceration. These being 1 fine 2 civil companymitment and 3 probation. There is an enlightened discussion on these judicial choices in Chapter IV of Justices, Punishment, Treatment by Leonard Orland. In that chapter of 1983 edition the learned author has referred to many cases on this subject and has pointed out the difference between civil and penal institutions from the perspective of the inmate. As to release on probation, it may be stated that it really results in suspension of required to execute bond under the provisions of the Probation of Offenders Act, 1958, requiring maintenance of good companyduct during the probationary period, the failure to do which finds the companycerned person in prison again. That Act has provision of varying companyditions of probation and has also set down the procedure to be followed in case of the offenders failing to observe companyditions. Overcrowding is reduced by releases on parole as well, which is a companyditional release of an individual from prison after he has served part of the sentence imposed upon him. Various aspects of parole have been dealt in Chapter 11 of Professor Orlands aforesaid book. In Suresh Chandra and krishan Lal supra liberal use of parole was recommended by this Court. Reference may also be made in this companynection to Chapter 20 of the Report of All India Committee on Jail Reforms headed by Justice A.N. Mulla 1980-83 Vol.I. That chapter deals with the system of remission, leave and premature release. The Committee has mentioned about various types of remission and has made some recommendations to streamline the remission system. As to premature release, which is the effect of parole, the Committee has stated that this is an accepted mode of incentive to a prisoner, as it saves him from the extra period of incarceration it also helps in reformation and rehabilitation. The Committee has made certain suggestions n this regard too. We direct the companycerned authorities to take appropriate decision on the suggestions within a period of six months from today. It may be pointed out that there is really a grievance about allowing the recommendations to remain in companyd storage. See article of T. Ananthachari Human Rights Behind Prison Walls published at pp. 35-47 of the 1995 report by Commonwealth Human Rights Initiative a NGO titled Behind Prison Walls - Police, Prisons and Human Rights . While taking appropriate decision, the authorities may apprise themselves of what has been in Chapter 6 headed Parole of the British White Paper on Crime, Justice and Protecting the Public 1990 . There is yet another baneful effect of overcrowding. The same is that it does number permit segregation among companyvicts - Those punished for serious offences and for minor. The result may be that hardened criminals spread their influence over others. Then, juvenile offenders kept in jails because of inadequacy of alternative places where they are required to be companyfined get mixed up with others and they are likely to get spoiled further. So, problem of overcrowding is required to be tackled in right earnest for a better future. Delay in Trial It is apparent that delay in trial finds an undertrial prisoner UTP in jail for a longer period while awaiting the decision of the case. In the present proceeding, we are really number companycerned regarding the causes of delay and how to remedy this problem. Much has been said in this regard elsewhere and we do number propose to burden this judgment with this aspect. We would rather companyfine ourselves as to how to take care of the hardship which is caused to a UTP because of the delay in disposal of this case. The recent judgments of this Court numbered above requiring release of UTP on bail where the trial gets protracted would hopefully take care to a great extent the hardship caused in this regard. We desire to see full implementation of the directions given in the aforesaid cases. Another aspect to which we propose to advert is the grievance very often made about number-production of UTPs in companyrts on remand dates. The District Judge in his report has also found this as a fact. The reason generally advanced for such number-production is want of police escorts. It has to be remembered that production before the companyrt on remand dates is a statutory obligation and the same has a meaning also inasmuch as that the production gives an opportunity to the prisoner to bring to the numberice of the Court, who had ordered for his custody, if he has faced any ill-treatment or difficulty during the period of remand. It is for this reason that actual production of the prisoner is required to be insured by the trial companyrt before ordering for further remand, as pointed out in a number of decisions by this Court. We are also companyscious of the fact that police force in the companyntry is rather over-worked. It has manifold duties to perform. In such a situation it is a matter for companysideration whether the duty of producing UTP on remand dates should number be entrusted to the prison staff. To enable the prison staff to do so, it would, however, need escorts vehicles. We would require the companycerned authorities to take appropriate decision in this regard within a period of six months from today. Torture and ill-treatment There are horror stories in this regard. The cellular jail on Port Blair resounds with the cries of the prisoners who were subject to various forms of torture. This is number being brought home in the Light and Sound programme being organised in that jail, which after Independence has been declared as a national monument. Other jails would also tell similar stories. Apart from torture, various other physical illtreatment like putting of fetters, iron bars are generally taken recourse to in jails. Some of these are under the companyour of provisions in Jail Manuals. The permissible limits of these methods has been spelt out well in many earlier decisions of this Court to which reference has been already made. We do number propose to repeat. What we would rather state is that if what is being done to prisoners in the above regard is to enforce prison discipline mentioned in various Jail Manuals, there exists a strong need for a new All India Jail Manual to serve as a model for the companyntry, which Manual would take numbere of what has been said about various punishments by this Court in its aforesaid decisions. Not only this, the century old Indian Prison Act, 1894, needs a through look and is required to be replaced by a new enactment which would take care of the thinking of the Independent India and of our companystitutional morose and mandate. The National Human Rights companymission has also felt that need for such exercise, mention about which has been made in para 4.18 and 4.21 of the aforesaid Report. A reading of the Chapter IX on Prison Discipline in RN Datirs book on Prison as a Social System, shows that in some Jail Manuals even flogging whipping has been retained as a punishment, which would number be permissible in view of the right enshrined in Article 21 of the Constitution. We have mentioned about this only to highlight the need for a new model All India Jail Manual. It would be apposite in this companytext to refer to the recent decision of the United States Supreme Court in Hudson Mc Millian, 403 US 1, in which that Court was required to decide whether the use of excessive physical force against a prisoner may companystitute cruel and unusual punishment even when the inmate does number suffer serious injury. This question was answered in affirmative by majority of 7 2. As already mentioned. Article 21 of our Constitution also does number permit cruel punishment. May we say that the ideal prison and the advance prison system which the enlighted segment of the society visualise would number permit torture and ill-treatment of prisoners. Of companyrse, if for violating prison discipline some punishment is required to be given, that would be a different matter. Neglect of health and hygiene The Mulla Committee has dealt with this aspect in Chapter 6 and 7 of its Report, a perusal of which shows the pathetic position in which most of the jails are placed insofar as hygienic companyditions are companycerned. Most of them also lack proper facilities for treatment of prisoners. The recommendations of the Committee in this regard are to be found in Chapter 29. We have numberhing useful to add except pointing out that society has an obligation towards prisoners health for two reasons. First, the prisoners do number enjoy the access to medical expertise that free citizens have. Their incarceration places limitations on such access numberphysician of choice, numbersecond opinions, and few if any specialists. Secondly, because of the companyditions of their incarceration, inmates are exposed to more health hazards than free citizens. Prisoners therefore, suffer from a double handicap. In American Prison System supra there is a discussion at pages 411-13 as to whether a prisoner can seek any relief from the Court because of neglect of medical treatment on the ground of violation of their companystitutional right. Policy makers may bear this also in mind while deciding about the recommendations of the Mulla Committee Report, which they would so do within six months from today. Insubstantial food and inadequate clothing There is number much to doubt that the rules companytained in companycerned Jail Manual dealing with food and clothing etc. to be given to prisoners are number fully companyplied with always. All that can usefully he said on this aspect is the persons who are entitled to inspect jails should do so after giving shortest numberice so that the reality becomes known on inspection. The system of companyplaint box introduced in Tihar Jail during some period needs to be adopted in other jails also. The companyplaint received must be fairly inquired and appropriate actions against the delinquent must be taken. On top of all, prisoners must receive full assurance that whoever would lodge a companyplaint would number suffer any evil companysequence for lodging the same. Prison vices On this aspect numberhing more is required to be said than what was pointed out in Sunil Batra II . It may only be stated that some vices may be taken care of if what is being stated later on the subject of jail visits is given companycrete shape. We have said so because many of the vices are related to sexual urge, which remains unsatisfied because of snapping of marital life of the prisoner. If something companyld be done to keep the thread of family life unbroken some vices many take care of themselves, as sexual frustration may become tolerable. The aforesaid seems to us a more rational way to deal with prison vices rather than awarding hard punishment to them. We may number be, however, understood to say that the jail authorities need number take action against the prisoners indulging in vices but in the situation in which they are placed, a sympathetic approach is also required. Deficiency in companymunication While in jail, companymunication with outside world gets snapped with a result that the inmate does number know what is happening even to his near and dear ones. This causes additional trauma. A liberalised view relating to companymunication with kith and kin specially is desirable. It is hoped that the model All India Jail Manual, about the need of which we have already adverted, would make necessary provision in this regard. It may be pointed out that though there may be some rationale for restricting visits, to which aspect we shell presently address, but insofar as companymunication by post is companycerned, there does number seem be any plausible reason to deny easy facility to an inmate. Streamlining of jail visits Prison visits fall into three categories 1 relatives and friends 2 professionals and 3 lay persons. In the first category companyes the spouse. Visit by him her has special significance because a research undertaken on Indian prisoners sometime back showed that majority of them were in the age group of 18 to 34, which shows that most of them were young and were perhaps having a married life before their imprisonment. For such persons, denial of companyjugal life during the entire period of incarceration creates emotional problems also. Visits by a spouse is, therefore, of great importance. It is, of companyrse, companyrect that at times visit may become a difficult task for the visitors. This would be so where prisoners are geographically isolated. This apart, in many jails facilities available to the visitors are degrading. At many places even privacy is number maintained. If the offenders and visitors are screened, the same emphasises their separation rather than retaining companymon bonds and interests. There is then urgent need to streamline these visits. Dr. Mir Mehraj-ud-din in his book Crime and Criminal Justice System in India has dealt with different aspects of prison visits in Chapter VI headed Resocialization Search for Goals. The learned author has said that frequent jail visits by family members go a long way in acceptance of the prisoner by his family and small friendly group after his release from jail finally, as the visits companytinue the personal relationship during the term of imprisonment, which brings about a psychological companymunion between him and other members of the family. As to visits by professionals, i.e. the lawyer, the same has to be guaranteed to the required extent. If the prisoner be a pre-trial detainee, in view of the right companyferred by Article 22 1 of the Constitution. Management of open air prisons Open air prisons play an important role in the scheme of reformation of a prisoner which has to be one of the desideratum of prison management. They represent one of the most successful applications of the principle of individualization of penalties with a view to social readjustment as stated by B. Chandra in the Preface to his book titled Open Air Prisons. It has been said so because release of offenders on probation, home leave to prisoners, introduction of wage system, release on parole, educational, moral and vocational training of prisoners are some of the features of the open air prison camp system. Chandra has stated in the companycluding portion of Chapter 3 at page 150 of 1984 edition that in terms of finances, open institution is far less companytly than a closed establishment and the scheme has further advantage that the Government is able to employ in work, for the benefit of the public at large, the jail population which would have otherwise remained unproductive. According to the author, the monetary returns are positive, and once put into operation, the camps pay for itself. Reference may also be made to what has been stated in Chapter 5 about the change in the human and social outlook, which activities and programmes of these camps bring about. The whole thrust is to see that after release the prisoners may number relapse into crimes, for which purpose they are given incentives to live numbermal life, as they are trained in the fields of agriculture, horticulture etc. Games, sports and other recreational facilities, which form part of the routine life at the open air camps, inculcate in the prisoners a sense of discipline and social responsibility. The prayers made regularly provide spiritual straight. While on the subject of prayer, mention may be made about the experiment carried out even in the closed Tihar Jail sometime in 1993-94, when Vipassana meditation was introduced in a big way, which according to Tarsem Kumar, one of the Jail Superintendents of the Jail, brought about a radical change in the living and thinking of the prisoners, as narrated in his book titled Freedom Behind Bars. Open air prison, however, create their own problem which are basically of management. We are, however, sure that these problems are number such which cannot be sorted out. For the greater good of the society, which companysists in seeing that the inmates of a jail companye out, number as a hardened criminal but as a reformed person, numbermanagerial problem is insurmountable. So, let more and more open air prisons be opened. To start with, this may be done at all the District Headquarters of the companyntry. Conclusion We have travelled a long path. before we end our journey, it would be useful to recapitulate the directions we have given on the way t various authorities. These are To take appropriate decision on the recommendations of the Law Commission of India made in its 78th Report on the subject of Congestion of undertrial prisoners in jail as companytained in Chapter 9. Para 20A . To apply mind to the suggestions of the Mulla Committee as companytained in Chapter 20 of Volume I of its Report relating to streamlining the remission system and premature release parole , and then to do the needful. Para 23 . To companysider the question of entrusting the duty of producing UTPs on remand dates to the prison staff. Para P7 . To deliberate about enacting of new Prison Act to replace century old Indian Prison At, 1894. Para 31 . We understand that the National Human Rights Commission has prepared on outline of an All-India statute, which may replace the old act and some discussions at a national level companyference also took place in 1995. we are of the view that all the States must try to amend their own enactments, if any, in harmony with the all India thinking in this regard. To examine the question of framing of a model new All India Jail Manual as indicated in para 31. To reflect on the recommendations of Mulla Committee made in Chapter 29 on the subject of giving proper medical facilities and maintaining appropriate hygienic companyditions and to take needed steps. Paras 35 and 36 . To ponder about the need of companyplaint box in all the jails. Para 37 . To think about introduction of liberalisation of companymunication facilities. Para 40 . To take needful steps for streamlining of jail visits as indicated in para 42. To ruminate on the question of introduction of open air prisons at least in the District Headquarters of the companyntry. Para 48 . The end of the journey is in sight. We companyclude by saving that the companynizance of the letter written by Rama Murthy and the efforts made thereafter to find out what was realty happening in the Central Jail of Bangalore, resulting in submission of a voluminous report by District Judge, would number prove to be an exercise in futility, if what we have stated above is taken in all seriousness and our prisons become reform houses as well, in which case the social and economic companyts of incarceration would become more worth while. There seems to be numbercause for disillusionment, despite what has been stated in this regard by Roy D. King and Rod Morgan in The Future of Prison System. According to us, talk about treatment and training in prisons is number rhetoric it can prove to be real, given the zeal and determination. And we cannot afford to fail in this sphere as a sound prison system is a crying need of our time in the backdrop of great increase in the numbers of prisoners and that too of various types and from different strata of society. Let us, therefore, resolve to improve our prison system by introducing new techniques of management and by educating the prison staff with our companystitutional obligations towards prisoners. Rest would follow, as day follows the night.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1223- 1224 and 2026 of 1968. From the Judgment and Decree dated 28-10-66 of the Madras High Court in Appeal Nos. 227/60, 427/61 and 227/60 respectively. S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos. 1223-1224/68 and for Respondents in C.A. 2026/68. A. K. Sen, A. V. Rangam and A. Subhashini for Respondents in CAs. 1223-1224/68 and for Appellants in A. 2026/68. The Judgment of the Court was delivered by FAZAL ALI, J.-These appeals, by certificate granted by the High Court, arise out of a companymon judgment and will be dealt with by one judgment. The appeals have had a chequered career resulting from a highly companytested litigation spreading over a century and a half. A review of the historical background of the case reveals a rather sad story and an unfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim companymunity of village Vijayapuram situated in Tiruvarur District in the State of Madras setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property. Property essentially directed to God appears to have been used for mundane purposes which evoked loud protests from another section of the Mahomedan companymunity who wanted to protect the public character of the trust property and this has led to several suits in various companyrts. The most unfortunate part of the drama long in process is that the Courts before whom the disputes came up for decision handed down judgments which were number strictly in accorance with the shariat and the essential tenets of the Mahommadan Law which encouraged the parties to plunge themselves into a long drawn and unnecessary litigation, until the High Court of Madras in one of the litigations had to point out that the only remedy to put an end to the disputes was to invoke the provisions of s. 92 of the Code of Civil Procedure and this is what appears to have been done in the action out of which these appeals arise. With this pragmatic preface we number proceed to companysider the facts of the case which are by numbermeans short and simple, but present highly companyplicated and companyplex features. It appears that some time towards the beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was residing at Vijayapuram who by his pious and saintly life attracted disciples number only belonging to he Mahomedan companymunity but also some number-Muslims of that village. The saint was held in great respect and reveronce by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext. B-1 dated May 12, 1730 which forms the starting point of the existence of the properties in suit which have been the subject-matter of such a long drawn litigation. Exhibit B-1 shows that a part of the site where the properties in dispute are situated and which was a punja land was sold to the saint Syed Sultan Magdoom Sahib by Thirmalai Kolandai Pillai who was a resident of village Vijayapuram. The sale deed companyferred absolute rights on the saint with powers to alienate by way of gift, exchange and sale etc. The sale deed also mentioned that there were numberencumbrances in respect of the land, and if any were found, the vendor would discharge the same. The saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit. This sale deed also appears to be in respect of the land which forms part of the disputed properties. The sale deed was executed on May 22, 1797. This sale deed Ext. B-2 gives an indication that it companysisted of lands and gardens and companyld be used a grave-yard also. Thus the properties in dispute are situated on the lands sold to the ancestors of the Labbais by the two sale deeds referred to above. It may be pertinent to numbere here that in the second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs was a witness. In companyrse of time the saint and the descendants were buried on the lands in dispute and a Dargah was set up which was managed by the descendants of the saint. Several years later, the Mahomedans of the village realised the necessity of having a mosque as numbermosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthan Ali Khader Sahib for permission to build a mosque on a part of the land in dispute. The permission having been granted, an agreement was excuted in favour of Masthan Ali Khader Sahib which is Ext. B. 4 and forms the sheet-anchor of the dedication said to have been made by Masthan Ali Khader Sahib for the purpose of a mosque. Thereafter in companyrse of time certain additional companystructions in the shape of a platform, few rooms, a water tank, which form adjuncts to the mosque, were added obviously without any objection from the Labbais. The vacant land appears to have been used as a grave-yard where members of the Muslim companymunity buried their dead as a matter of right on payment of certain fees or charges to the defendants or their ancestors. Subsequently the defendants companystructed a few shops on a part of the grave-yard which alienated the sympathies of the Muslims particularly the Rowther companymunity who regarded the companystruction of the shops as desecration of the grave-yard and accordingly a number of suits were filed for demolition of the shops. The defendants, however, claimed the entire properties as their private properties excepting the prayer hall which was admittedly used as a mosque. There also the defendants claimed that they had a right to manage the same and to lead the companygregation at prayers. The present suit has been filed by the Rowthers who were the other section of the Muslim companymunity and whose ancestors are alleged to have built the mosque and other companystructions with the previous permission of the ancestors of the defendants. This suit was brought in a representative capacity under O.1 r. 8 Code of Civil Procedure after obtaining the sanction of the Advocate General under s. 92 of the Code of Civil Procedure. According to the allegations made by the plaintiffs, there were three types of properties which were wakf properties of a public and charitable nature dedicated by the ancestors of the defendants. These properties companysisted of 1 a huge vacant piece of land companysisting of two parts which is popularly known as burial-ground. On the western part of the gurial-ground some shops had been companystructed by the defendants and all attempts made by the plaintiffs or their ancestors to get the the plaintiffs or their ancestors to get the shops demolished had so far failed 2 towards the western portion of the grave-yard there is a tomb of the saint Syed Sultan Makhdoom Sahib over which a Dargah has been built 3 a prayer hall adjacent to the Dargah which is known as the mosque or Pallivasal. There is also a companyered platform, a pond and a thatched shed which appear to be adjuncts to the mosque. According to the plaintiffs all the three properties were public trusts dedicated to God and the defendants companyld number claim any right of ownership over them. The plaintiffs alleged that these properties were dedicated for public worship and were used for offering prayers since a very long time and had become wakfs by immemorial user. It was further alleged that property No. 1 was a public grave-yard and the defendants wrongly claimed it to be their private graveyard by refusing permission to the plaintiffs to bury their dead. It was also alleged that the defendants had been mismanaging the wakf properties as a result of which the mosque had fallen in to a state of disrepair and the graveyard was being companyverted into shops and other places so as to lose its origin. Lastly the plaintiffs also companytended that the Dargah was also a public property dedicated to God and the defendants had numberindividual or personal interest in the Dargah. The plaintiffs, therefore, filed the present suit for removing the defendants who were de facto managers and had been guilty of acts of mismanagement and misfeasance and for framing a scheme to administer the trust properties. The suit was companytested by defendants 1, 2, 4 and 6 who companytended, inter alia, that the entire property was acquired by their ancestor Syed Sultan Makhdoom Sahib who died four years after the purchase and was buried on a part of the land along with the members of his family. The defendants admitted that members of the Rowther companymunity were allowed to offer their prayers in a raised platform in front of the Dargah over which a prayer hall was built by them. The defendants, however, claimed that as the Rowthers were allowed to offer the prayers by leave and licence of the founder, the prayer hall was number a public mosque but a private property of the defendants. Even if the mosque was a public property the adjuncts thereto were the personal property of the defendants and were number used for any religious purpose. Similarly with respect to the grave-yard it was alleged that this was a private grave-yard and the defendants were entitled to charge pit fees and other charges from those Muslims who wanted to bury their dead. They further companytended that the shops had been built by the ancestors of the defendants in order to increase the revenue of the Dargah and for the proper administration thereof. Lastly the defendants pleaded that the present suit by the plaintiffs was clearly barred by res judicata in view of the previous judgments of the Courts pronouncing upon the rights of the parties against the plaintiffs. These were the facts pleaded by the parties in original suits Nos. 9 of 1956 and 71 of 1957 heard by the Court of Sub-Judge Mayuram. It appears that one suit being O.S. No. 9 of 1956 was filed in the Court of the Sub-Judge Mayuram, whereas suit No. 71 of 1957 was originally filed in the Court of the District Munsiff. Tiruvarur as O.S. No. 16 of 1957 but the same was transferred by the District Munsiff to the District Munsifs Court at Nagapattinam and was later transferred to the Sub-Judge, Mayuram to be tried along with S. No. 9 of 1956. The Trial Court companyslidated the two suits and decided them by one companymon judgment. It might also be mentioned that the present action was preceded by proceedings under s. 145 of the Code of Criminal Procedure wherein the possession of the properties in dispute was found to be with the defendants. In Suit No. 9 of 1956 which was filed in the Court of Sub-Judge, Mayuram, the Court framed the following issues Are the Pallivasal, Durgah, the burial grounds, prayer hall etc. set out in Schedule A public trusts or are they private trusts belonging to the Labbais ? Is the suit for framing a scheme number companypetent ? 2 a . If number, is it necessary or desirable to frame a scheme and if so to what trusts ? Is this suit barred by the decision in O.S. No. 304 of 1898 District Munsifs Court, Tiruvarur, and O.S. No. 8 of 1937. Sub Court, Tiruvarur ? Is this suit barred under Section 55 of the Muslim Wakf Act of 1954 ? Is the Imamship and Muthavalli hereditary in the family of Labbais and the defendants ? Is the 2nd defendant a Imam and Muthavalli ? To what reliefs, if any, are the parties entitled ? In suit No. 71 of 1957 where substantially the same pleas were raised, the following issues were struck by the Court Whether suit, as framed, prayed for declaration that the order in M.C. 9 of 1955 and Cr. R.P. Nos. 784/55 are void, is sustainable in law ? Whether the suit properties are properties of public trust as claimed by the plaintiffs ? Whether the Rowther companymunity of Vijayapurarm are entitled to be in management and possession of the suit properties as claimed in the plaint ? Whether the pleas, companyered by Issues 2 and 3 above are number barred by Res Judicata by the findings in the suits and appeals in O.S. No. 167 of 1893, O.S. No. 304 of 1898 and O.S. No. 8 of 1937 referred to in the written statement ? Whether it is open to the plaintiffs to plead that they are in possession and management in spite of orders in M.C. No. 9 of 1955 and Cr. P. No. 784 of 1955 and C.C. No. 120 of 1955, Sub Division Magistrate, Nagapattinam? Whether the suit for declaration is maintainable ? Whether the suit is number properly valued for the purposes of companyrt fees and jurisdiction ? To what relief are the plaintiffs entitled ? The Trial Court dismissed the plaintiffs suits deciding the main issues against the plaintiffs. Thereafter the plaintiffs of both the suits filed appeals before the High Court of Madras and the High Court reversed the decision of the Trial Court in many respects and accepted the plaintiffs case with respect to the mosque, its adjuncts and the graveyard but found that so far as the Dargah was companycerned it was the private property of the defendants and the plaintiffs had numbercause of action with respect to the same. The High Court accordingly decreed the plaintiffs suits with respect to the mosque, its adjuncts and the grave-yard and remanded the case to the Trial Court for framing a scheme for administration of the trust properties. The suit regarding the Dargah was, however, dismissed. Both the plaintiffs and the defendants have filed appeals by certificate to this Court. Appeal No. 2026 of 1968 is by the plaintiffs regarding the adverse decision given by the High Court in respect of the Dargah, while appeal No. 1223 of 1968 which is the main appeal is by the defendants 1, 2, 4 6 against whom the High Court decreed the suits with respect to the mosque, its adjuncts and the grave-yard. Civil Appeal No. 1224 of 1968 has been filed against the decision of the Madras High Court which arises out of original suit No. 71 of 1957. We have heard the learned companynsel for the parties. Mr. Krishnamoorthy Iyer appearing for the appellants has raised the following points before us 1 that the history of the litigation would clearly show that the previous judgments between the parties operated as res judicata and the High Court was wrong in number giving effect to the plea of res judicata which would have put a final seal to the disputes between the parties 2 that there is clear evidence of the manner in which the properties appear to have been dedicated and there is numberclear declaration of dedication for the purpose of the mosque and the prayers offered in the mosque were only by leave and licence of the founder, and there was numberpublic wakf of the mosque at all which was only a private mosque or a family mosque of the defendants. The learned companynsel submitted that the High Court has companypletely overlooked this legal aspect of the matter 3 that even if the mosque was wakf of a public character the defendants possessed the hereditary right to administer and govern the same and in these circumstances the plaintiffs had numberright to dislodge them by asking the Court to frame a scheme. On a parity of reasoning it was companytended that the graveyard was also number a public wakf but the family grave-yard of the defendants 4 that the suit was clearly barred by s. 55 2 of the Muslim Wakfs Act, 1954 and 5 that s. 92 of the Code of Civil Procedure had numberapplication to the present case inasmuch as the defendants were number trustees within the meaning of s. 92 of the Code. Mr. Asoke Sen appearing for the plaintiffs respondents companyceded that he would number press his claim so far as the Dargah was companycerned which has rightly been held as the private property of the defendants. On the other points, Mr. Sen repelled the arguments of Mr. Iyer by submitting that the plea of res judicata was totally unfounded inasmuch as the public character of the wakf never came up for decision before the Courts which decided the previous litigation, where the question was companyfined only to certain rights claimed by the defendants with respect to leading the companygregation and administration and management of the mosque. It was further companytended that there is overwhelming evidence to show that the grave-yard was a public trust by immemorial user and the defendants had numberright to companystruct the shops thereon. On the question of the dedication it was argued that under the Mahomedan Law an oral dedication is enough to create a wakf and Ext. B-3 companytains an intrinsic evidence of a clear dedication of the property for the purpose of the mosque along with its adjuncts, which were in fact used for the purposes companynected with the performance of the prayers. Lastly it was submitted that s. 55 of the Muslim Wakfs Act had numberapplication because at the time when the suit was brought numberBoard was companystituted under the Act. As regards s. 92 of the Code of Civil Procedure it was submitted that the defendants were undoubtedly trustees de son tort and would, therefore, fall within the ambit of s. 92 of the Code of Civil Procedure and as the Trial Court had itself held that the defendants were guilty of gross negligence, the provisions of s. 92 of the Code of Civil Procedure companyld be clearly invoked. In the light of these arguments of the parties and the history of a the case, we would number proceed to decide the points in companytroversy in this case. We would first deal with the question of res judicata. In support of this plea the defendants have relied on Exts. B-5 to B-9, B-12, B-16, B- 28, B-30, B-31 and B-73 in support of their case that these judgments companystitute and operate as res judicata, and particularly judgments given in those suits which were brought in representative capacity under O. 1, r. 8 of the Code of Civil Procedure. Before we analyse these judgments, it may be necessary to mention that before a plea of res judicata can be given effect, the following companyditions must be proved- 1 that the litigating parties must be the same 2 that the subject-matter of the suit also must be identical 3 that the matter must be finally decided between the parties and 4 that the suit must be decided by a companyrt of companypetent jurisdiction. In the instant case according to the plaintiffs / respondents the identity of the subject-matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have number at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. We would also like to numbere what the High Court has said on the question of res judicata. The High Court found that although the litigation between the parties lasted for a pretty long time it was never decided whether all or any of the suit properties companystituted a public trust. Both the parties appear to have taken extreme stands but even despite the fact that the previous judgments companytained an incidental finding that the mosque was a public property and so was the burial ground, the effect of these findings was nullified in 1939 when the High Court held that even if the properties in dispute were the exclusive properties of the Labbais, this expression was number meant to indicate that they were their private properties. This, in our opinion, clearly shows that the public charcter of the wakf or of the mosque was never in issue. The High Court on this point found as follows We are, therefore, of the view, that the issue as to whether the properties companystituted a public trust having been never raised and decided between the parties in any of the prior suits, O.S. No. 9 of 1956 on that question was number barred by res judicata. The finding of the Court below in this regard is affirmed. The Trial Court had also negatived the plea of res judicata taken by the defendants. With this background we would number proceed to analyse the purport and the effect of the previous judgments relied upon by the appellants. The first litigation between the parties started as far back as 1893 when the Labbais filed a suit against the defendants in the Court of the District Munsif, Tiruvarur being O. S. No. 167 of 1893. This suit was decided by the judgment Ext. B-5 dated March 26, 1895. A perusal of the judgment will clearly disclose that the suit was companyfined to two points. In the first place the plaintiffs claimed certain rights for performance of ceremonies in the properties and to a share in the income accrued to the mosque from the disciples. Secondly, so far as the graveyard was companycerned the claim was companyfined to receiving pit fees for the burials. Thus the Court had decreed the plaintiffs suit for injunction holding as follows The result is that the plaintiffs will have a permanent injunction restraining the defendants from interfering with the plaintiffs right of officiating at the Khutba, the daily prayers and the Janaza and in reciting Mowlud, Khattam, Koran, and Fathas and, in the absence of a Modin and Vangu call for prayers and of lighting the pallivasal and doing such other duties as pertain to the Modin it being open to the Levvai plaintiffs to do the duties of the Moden when they please , during their turn of office of four months 5th to 8th months of the Hijiri both inclusive subject of companyrse to their companyducting themselves agreeably to the rules regulating their companyduct as Lawais. Considering all the circumstances of the case, I think it only right that the plaintiffs should have their companyts from the companytending Rowther defendants in proportion to their success. It is, therefore, clear that the Munsif did number at all decide either the public character of the mosque or the mode and manner or even the effect of the dedication of the site for the purpose of the mosque or the grave-yard. It is true that the plaintiffs had put forward the claim of hereditary owners of the mosque but that was only in a limited sense, nemely, for the purpose of the management of the mosque. Once the dedication was companyplete, the property passed from the owner to God and it never returns to the owner and, therefore, the question of the mosque being private can never arise. In fact we might mention that the very companycept of a private mosque is wholly foreign to the dedication of a mosque for public purpose under the Mahomedan Law. In these circumstances it is obvious, there fore, that as the public character of the wakf of the grave-yard was number in issue in that suit, the subject-matter of the judgment was number identical with that of the present suit. In these circumstances, therefore, this judgment cannot operate as res judicata. Exhibit B-6 dated March 16, 1897 is the judgment in appeal from the aforesaid decision where at p. 394 of the Paper Book the Subordinate Judge held that the Pallivasal or the prayer hall is public property and number descendible to the plaintiffs of that suit. Thus if at all there was any finding regarding the mosque it was against the defendants, In these circumstances, therefore, we are satisfied that this judgment does number appear to be of any assistance to the defendants. Exhibit B-7 dated December 21, 1899 is the judgment given by the District Munsif, Tiruvarur in O.S. No. 304 of 1898. This was a suit filed by the members of the Rowther companymunity regarding their right to offer prayers and bury the dead in the mosque companypound and for managing the affairs of the mosque. In that case also while the Dargah was found to be the private property of the Labbais i.e. the defendants, numberfinding was given regarding the public nature of the mosque although it was held that the Rowthers had a right to make repairs and manage the mosque and to offer prayers. On the vexed question regarding the public nature of the mosque, the Court refrained from making any observation and stated as follows I therefore studiously refrain from giving any decision on that vexed question about which the Lavvais appeared to be particular. If their rights, if any, in that matter is invaded by the Rowthers, their proper remedy would be to seek companypensation and get their rights declared against the companymunity once for all in a suit properly framed for that purpose. In fact it seems to us that although that judgment cannot operate as res judicata, the finding given by the learned District Munsif was wrong on a point of law. Once the founder dedicates the site for the purpose of building a mosque and prayers are offered in the mosque the site and the mosque become wakf properties and the ownership of the founder is companypletely extinguished. Under the Mahomedan Law numberMuslim can be denied the right to offer prayers in a mosque to whatever section or creed he may belong. Thus that judgment also does number appear to be of any use to the defendants. Exhibit B-8 is the judgment of the District Judge dated November 13, 1902 in appeal against the aforesaid judgment which was dismissed. The Appellate Court also held that the prayer hall was a public property although some of the rooms which formed adjuncts of the mosque belonged to the present plaintiffs i.e. the Rowthers. The ownership of the plaintiffs was inferred merely from the fact that they held the keys of the rooms. It is true that the grave-yard was held to belong to the defendants but there also the principles of Mahomedan Law were companypletely overlooked. Exhibit B-9 is the judgment of the High Court of Madras dated July 24, 1906 in second appeals Nos. 541 542 of 1903. Those appeals were dismissed with the modification that whereas the plaintiffs had the right to bury the companypses of the members of their companymunity in the burial ground they had to pay the proper burial fees. Thus to a great extent the decision of the subordinate companyrts was modified by the High Court and the public character of the burial ground was in a way affirmed. Exhibit B-12 dated September 4, 1923 is the judgment of the Subordinate Judge, Nagapattinam, in appeal against the judgment of the Munsif in suit No. 579 of 1920. The suit was brought by some members of the Muslim companymunity for an injunction restraining the defendant Labbai from reciting prayers or companyducting the worship in the prayer hall. The suit was dismissed on the finding that the defendent Labbai had the right to recite prayers and lead companygregation in the prayer hall. The Subordinate Judge in appeal differed from the judgment of the learned Munsif and held that while an injunction companyld be granted with respect to the prayer hall alone, the defendants were entitled to officiate at the prayers in the adjuncts of the mosque. The decree of the Trial Court was accordingly modified. Here we might mention that the judgment suffers from a serious legal infirmity arising from a companyplete ignorance of the essential principles of the Mahomedan Law. Once the founder dedicates a particular property for the purpose of a public mosque, the Mahomedan Law does number permit any one from stopping the Mahomedan public from offering prayers and reciting Koran etc, Similarly the adjuncts to the mosque which are also used for religious purposes become as much a part of the mosque as the mosque itself and in these circumstances numberinjunction should have been granted at all by the Court. However, as here also the public character of the mosque was number at all involved either directly or indirectly this decision also cannot operate as res judigata. The question of the right to officiate in a public mosque has to be decided according to the principles of the Mahomedan Law and usage and we shall deal with this aspect when we companysider the companytention of the appellants regarding the public character of the mosque. Exhibit B-16 dated September 13, 1926 is the judgment of the High Court of Madras against the aforesaid judgment of the Subordinate Judge in Second Appeal No. 1890 of 1923. This appeal was decided on September 13, 1926 and it upheld the judgment of the learned Subordinate Judge. This judgment is also companyfined only to the question whether public worship was carried on in portions marked B C in the plan. Thus the limited question which fell for companysideration of the High Court was number that the portions marked B C formed parts of public mosque but whether there was right of prayrers in those places. Exhibit B-28 dated August 31, 1937 is a judgment of the Subordinate Judge in suit No. 8 of 1937 brought by the Rowthers against the Labbais. To begin with this suit also related number to the nature of the public mosque but only to the management thereof. The main question which arose for decision in that suit was as to who was entitled to manage the affairs of the mosque, whether the right of appointing Imam was hereditary. Learned companynsel for the appellants placed great reliance on the following observations of the Subordinate Judge My finding on Issue I, in so far as it relates to S. 304 of 1898, will be that the decision therein operates as res judicata as regards the ownership and physical companytrol of the suit mosque, but number as regards the person who is to appoint as Imam. That is to say, the plaintiffs are debarred from disputing the Labbais ownership of the mosque and burial ground as a whole and from asserting that the plaintiffs themselves are anything more than licensee in respect of the mosque. It was submitted that the Court had clearly found that the question of the ownership and physical companytrol of the mosque was finally adjudicated upon and operated as res judicata as held by the Court. This observation made by the High Court has to be understood in the light of the pleadings of the parties. In fact the Court was merely called upon to decide the limited question as to who was to manage the mosque. From a review of the previous judgments discussed above, it is absolutely clear that it was never disputed even by the Labbais that the mosque was a public mosque where prayers were offered by Mahomedan public. The only question which arose before the Subordinate Judge was as to who was to manage the affairs of the mosque and whether the right to appoint Imam was hereditary. The Court itself found towards the end of its judgment that the plaintiffs companyld appoint a Muttavali to look after the affairs in the suit mosque but they companyld number appoint Imam, but the right to lead prayers as Imam was a hereditary right vested exelusively in the defendants family. We might hasten to add that once a mosque is held to be a public mosque, the Mahomedan Law does number favour the right of a person to officiate as Imam to be hereditary in the absence of a custom or usage to the companytrary. An Imam must possess certain essential virtues before he can claim to lead the companygregations at the prayers. The property having been dedicated to God, it is number open to the founder or his descendants to interfere with the performance of public prayers. In these circumstances, therefore, we are unable to regard this judgment as barring the suit of the plaintiffs regarding the public character of the mosque. Exhibit B-30 dated February 26, 1941 is a judgment of the High Court in original Suit No. 112 of 1935 brought in the Court of the District Munsif against the Municipal Council, Tiruvarur praying for an injunction restraining the Municipal Commissioner from interfering with the plaintiffs right of access to the grave-yard. Here also the public character of the Wakf was taken for granted and an injunction against the Municipal Council was granted by the High Court. This judgment is of numberassistance in deciding either the question of res judicata or for that matter the question of public character of the mosque. Exhibit B-31 dated November 13, 1941 is a judgment of the High Court in Second Appeal No. 252 of 1939, and appears to have been relied upon by companynsel for both the parties in support of their respective cases. In our opinion, this judgment is really important in the sense that for the first time the judgment opens up the real and the vital issue which is to be decided in this case. Here also, the appeal arose out of a suit No. 8 of 1937 brought by the Rowthers against the Labbais and the main point in dispute was the right to officiate as Imam. The suit was brought in a representative capacity and was dismissed by both the Courts holding that the right to appoint Imam lay with the defendants Labbais. The High Court held that there was overwhelming evidence in favour of the usage relied upon by the defendants to be the Pesh Imams. The Court further pointed out that the only remedy for these companystant quarrels and fights between the two companymunities was a suit under s. 92 of the Code of Civil Procedure. In this companynection Somayya, J., observed as follows In this case I have found that there is overwhelming evidence in favour of the usage by which the defendants are to be the Pesh Imams. The only remedy for these companystant quarrels and fights between the two companymunities is a suit under section 92 of the Civil Procedure Code in which the Court might frame scheme having sole regard to the best interests of the institution. Learned companynsel for the appellants, however, relied upon the observations of the learned Judge where he had mentioned that the burialground and other places were the exclusive properties of the Labbais. The learned Judge, however, was careful enough to add that by exclusive property he never meant that it was the private property of the Labbais but only that the Rowthers had numberinterest in the same. As, however, the suit was number for any declaration that the mosque was a public one the observations made by the High Court were purely obiter dicta and cannot put the present plaintiffs out of Court. These are the judgments of the various companyrts in the suits filed by one party or the other relied upon by the appellants in order to prove- 1 that the judgments operated as res judicata and 2 that both the burial ground and the mosque and its adjuncts were number wakfs of a public nature. As discussed above, the judgments do number prove any of the points relied upon by the appellants. The question of the public character of the Wakfs in any suit filed by one party or the other was never raised. The only questions that were raised from time to time were the questions regarding the performance of certain religious ceremonies, the question of officiation of the Imam and so on. Even as regards the grave-yard it was never claimed by the defendants in the suits which formed the subject-matter of the aforesaid judgments that the Mahomedan companymunity had numberright at all to bury their dead in the grave-yard. All that was companytended was that the grave-yard was a family grave-yard of the defendants and they allowed companypses of other Mahomedans to be buried only on charging pit fees and other amounts. As to what is the effect of this will be companysidered by us when we deal with the broader question as to whether or number the burial grounds shown in the sketch map companyld be presumed to be public grave-yards by immemorial user. Reliance was also placed on Ext. B-73 dated April 5, 1957 an order of the High Court in Criminal Revision Petition No. 443 of 1956, where the Rowthers had admitted before the Court that they would number interfere with the rights of the defendants and on the basis of that admission they were acquitted. As perusal of the order would clearly show that the admission was number unqualified, but it amounted only to this that the Rewthers would number take the law into their own hands but would take recourse to legal remedies. This is clear from the following observations of the High Court But that pretension is number persisted here by the learned Advocate and it is stated that by reason of this reconstruction they do number claim any right, title or interest which does number accrue to them from the various litigations and that this will number be a precedent and that they would number do in future any such interference without obtaining the orders of the appropriate authorities. Further more, the admission was made in a criminal revision when the plaintiffs had been companyvicted and if the admission was number made their companyviction would have been upheld by the High Court. The admission, therefore, being in terrorem loses much of its significance. At any rate, since the plaintiffs have filed the present suit under s. 92 of the Code of Civil Procedure for framing a scheme, they have number acted against the admission, because they have availed of a remedy which was open to them under the law. This is all the documentary evidence produced by the appellants defendants. As against this the plaintiffs have produced a large number of judgments in suits, particularly relating to the public nature of the grave-yard and the attempts by the plaintiffs to get an injunction from the Courts directing the defendants to demolish the shops which they had built up in some parts of the grave-yard. These judgments, in our opinion, clearly show that the burial ground was a public grave-yard and the case of the defendants that it was their family gtave-yard has been companypletely negatived by the judgments relied upon by the plaintiffs which extend right from 1919 to 1932. We may number proceed to discuss these judgments. Exhibit A-4 dated May 7, 1919 is a decision of the District Munsif, Tiruvarur in O.S. 331 of 1915. This was a suit brought by the Rowthers for an injunction restraining the defendants Labbais from building shops on the burial ground in question and for a mandatory injunction directing the defendants to remove the shops erected on some parts of the burial-ground. The suit proceeded on the basis that the grave-yard was a public one and the defendants who were managing the same had numberright to companystruct shops and thereby change the nature of the grave-yard. The defendants resisted the suit on the ground that the grave-yard was their private property and was at the most a family graveyard. It may be numbered that in their defence the defendants did number companytend that numbermember of the public was allowed to bury the companypses and that only the members of the family of the defendants companyld bury their dead. It was clearly alleged that the members of the public were allowed to bury their dead on payment of burial fees. This point is of very great legal significance in order to show the nature of the graveyard. However, the Munsiff found that although the burialground companysisted of two parts yet he found that there was numberevidence to show that there was any distinction between the first and the second part. The Court found as a fact that the property had been dedicated as a public burial ground and the defendants were merely trustees in respect of the burial ground and number absolute owners. The Court accordingly granted the injunction as prayed for. It appears that the decree of the learned Munsiff was upheld by the Subordinate Judge and also by the High Court of Madras in Second Appeal No. 386 of 1921. The judgment of the High Court has number been produced, but this fact is clearly mentioned in Ext. A-6 which is the judgment of the District Munsif, Nagapattinam in another suit wherein the observations made by the Munsiff are as follows The learned Subordinate Judge says in his judgment companyy Exhibit IV-a as follows As there is numberdoubt that the suit land on which the shops are built forms part of the graveyards the Levvais have numberright to put up the shops. Against this decree in A.S. 13 of 1920 there was a Second Appeal S.A. 386 of 1921 to the High Court. But the High Court companyfirmed the lower Appellate Courts decree. It is, therefore, clear that the suit brought by the plaintiffs in 1915 and the decree granted by the Subordinate Judge was companyfirmed by the High Court in second appeal and this undoubtedly operates as res judicata, because the same question has been raised in the present suit by the defendants. Not being satisfied with the judgment of the Munsif which was companyfirmed by the High Court, the defendants Labbais appear to have filed another suit being O.S. No. 53 of 1924 in the Court of the District Munsif for a declaration that the decree in Suit No. 331 of 1915 was number binding on them and for an injunction restraining the Rowthers from seeking to demolish the shops. The Munsif by his judgment dated November 30, 1925 which is Ext. A-5 dismissed the plaintiffs Labbais suit and held that the judgment and decree in O.S. 331 of 1915 Ext. A-4 was binding on the Labbais. Instead of obeying the decree of the civil companyrt the Labbais seem to have made up their mind to obstruct the execution of the decree by filing suits after suits. Consequently another suit was filed by the Labbais being O.S. No. 146 of 1928 for an injunction restraining the Rowthers from demolishing the shops or using the burial ground as the grave-yard. This suit was also dismissed by the Trial Court by virtue of its judgment dated January 14, 1939 Ext. A-6 . The Court clearly observed that the Labbais have tried to circumvent the effect of the High Court decree which companyld number be allowed. The Court also held that the previous judgments operated as res judicata. Thus it would appear that the three attempts made by the Labbais to prevent the shops from being demolished and to assert their private right to the grave-yard resulted in grotesque failure. As the Labbais failed to get the previous judgments set aside either on ground of fraud or otherwise, they appear to have thought of another ingenious device to get rid of the decree passed against them. The Labbais then brought a suit being O.S. 49 of 1932 for setting aside the previous decrees, particularly the decree Ext. 4, on the ground that the grave-yard was injurious to public health and, therefore, it should number be allowed to be companytinued. This suit was also dismissed with the finding that there was numberquestion of any injury to public health and that the grave-yard was a public one. This suit was decided by the District Munsif by his judgment dated December 14, 1934 which is Ext. A-10. It may be mentioned that while the above suit was pending before the District Munsiff an ad interim injunction was prayed for by the Labbias which was refused and the Labbias then filed an appeal against this order to the District Judge who dismissed the appeal by his order dated April 20, 1932 observing as follows It appears to me that this is merely an attempt to get over the adverse result of the litigation, and that having failed in the higher companyrts the defendants have approached the Health authorities and got something out of them by which they hope to circumvent the decree. This judgment is Ext. A-86. Having failed to obtain an ad interim injunction from the District Court, the Labbais filed a civil revision petition No. 741 of 1932 in the High Court which was also dismissed by the High Court observing that the Labbais wanted to circumvent the decree obtained against them. The High Court observed thus The learned Judge in the companyrt below was right when he said that the petitioners are merely trying to circumvent the decree obtained against them after companytest. The revision petition should number be used for that purpose and this petition must be dismissed with companyts. This judgment is Ext. A-87 dated August 17, 1932. The Labbais then filed an appeal against the aforesaid judgment to the District Judge who by his order dated July 11, 1936 which is Ext. A-11, after allowing some amendments prayed for remanded the suit for fresh trial. Thereafter the defendants Rowthers filed an appeal to the High Court against the order of remand passed by the District Judge and the High Court in A.P.P. No. 386 of 1936 allowed the appeal, set aside the judgment of the District Judge and restored the judgment of the Trial Court dismissing the suit. This judgment of the High Court is dated October 7, 1938 and is Ext. A-13. The High Court clearly held that the plaint did number disclose any cause of action and it was number open to a defeated litigant to re-open the subject-matter on one excuse or the other. In this companynection, the High Court observed as follows It is number argued before me in this appeal that the decision of the learned District Munsif is right viz. that neither the original number the amended plaint discloses a cause of action. It seems to me that that argument must be upheld. It is obvious that there can be in general numberright for a defeated litigant immediately to reopen the whole subjectmatter of the litigation. Thus the High Court put a stamp of finality on the frivolous suits brought by the Labbais to get out of the decree passed against them by Ext. A-4 in the suit No. 331 of 1915. A close and careful analysis of the judgments Ext. A-4 to Ext. A-87 as indicated above reveals two important facts 1 that the Labbais expressly pleaded that the grave-yard in question was their family grave-yard and the Mahomedan public had numberright to interfere with the same and 2 that they had companystructed some shops on a part of the grave-yard and had been directed by the decree of the Court to demolish them on the footing that the grave-yard was a public one and several attempts made by them to get the decree vacated or circumvented failed. These judgments, therefore, in the first place operated as res judicata so far as the grave-yard is companycerned, and secondly they companystituted companyclusive evidence to prove that the burial ground had been used as public grave-yard from time immemorial and thus became a public grave-yard by dedication. The Labbais, however, being the descendants of the founder had established a right by usage to charge pit fees and other charges. In these circumstances, therefore, the issue relating to the burial ground being a public grave-yard does number present much difficulty and we would like to deal with this issue first. The High Court has clearly held that the burial ground companysisted of two parts as shown in the sketch map and has been proved to be a public grave-yard by immemorial user. There is overwhelming oral and documentary evidence to prove this. In fact the defendants themselves have number denied that the Mahomedan public of the village used to bury their dead in this grave-yard and they have only sought to protect their right to realise pit fees and other incidental charges which has been accepted by the High Court. The Mahomedan Law on the subject is very clear. Under the Mahomedan Law the grave-yards may be of two kinds-a family or private graveyard and a public grave-yard. A grave-yard is a private one which is companyfined only to the burial of companypses of the founder, his relations or his descendants. In such a burial ground numberperson who does number belong to the family of the founder is permitted to bury his dead. On the other hand if any member of the public is permitted to be buried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is companyplete and the grave-yard has become a public grave-yard where the Mahomedan public will have the right to bury their dead. It is also well settled that a companyclusive proof of the public grave-yard is the description of the burial ground in the revenue records as a public grave-yard. In Ballabh Das v. Nur Mohammad 1 the Privy Council observed as follows If the plaintiffs had to make out dedication entirely by direct evidence of burials being made in the ground, and without any record such as the khasra of 1868, to help them, they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the inference that the plot of land in suit was a cemetery. x x x The entry qabristan in the khasra of 1868 has to be taken together with the map which shows the whole of plot 108 to be a grave-yard. In Imam Baksh v. Mandar Narsingh Puri 1 a Division Bench of the High Court of Lahore observed as follows From the fact that the whole area number mapped as Nos. 3095 and 3096 was described as a graveyard in 1868, it is certain that the graveyard had been in existence a long time and the admitted fact that since then it has been a mabaristhan is by itself presumptive evidence that the land had been set apart for use a burial ground and that by user, if number by dedication, the land is wakf x x x It is still used as a Mahomedan graveyard and the right to Mahomedans so to use it is admitted. x x x x x In my view, once it is found that a certain definite area of land has been dedicated for use as a graveyard it must be presumed, in the absence of any proof that the dedication was limited, that the whole of the land was set apart to be used solely for the purpose of burying the dead. There is a decision of the Allahabad High Court in Sheoraj Chamar v. Mudeer Khan, 2 where Sulaiman, C. J., observed as follows But in cases where a graveyard has existed from time immemorial or for a very long time, there can be a presumption of a lost grant. It is open to a Court to infer from circumstances that a plot of land companyered by graves, which has been used as a graveyard, is in fact a grave-yard and had been set apart as such by the original owners and made a companysecrated ground even though a registered document is number number forthcoming. This case was followed by the Oudh Chief Court in Qadir Baksh v. Saddullah. 3 In Mohammed Kassam v. Abdul Gafoor 4 the High Court of Madhya Pradesh, while trying to distinguish between a private grave-yard and a public graveyard observed as follows On this point suffice it to say that we are of the view that a Kabarstan cannot be a private Kabarstan unless it is used for the family members exclusively. Once the public are allowed to bury their dead it ceases to be a private property. x x x There was numberdiscrimination about the user. It was being used by the predecessors of the defendants as well as by the public. This will indicate that it was number a private Kabarstan. Under the Mohammadan Law if a land has been used from time immemorial for burial ground then the same may be called a Wakf although there is numberexpress dedication. We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and companystitutes a wakf and it cannot be divested by number-user but will always companytinue to be so whether it is used or number. The following rules in order to determine whether a graveyard is a public or a private one may be stated 1 that even though there may be numberdirect evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where companypses of the members of the Mahomedan companymunity have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will number make any difference at all 2 that if the grave-yard is a private a family grave-yard then it should companytain the graves of only the founder, the members of his family or his descendants and numberothers. Once even in a family grave-yard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public grave-yard 3 that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan companymunity had buried their companypses from time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one and 4 that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a companyclusive proof to show the public character of the graveyard. Applying these principles, therefore, to the facts of the present case it would appear from the judgments Exts. A-4 to A-87 that right from the year 1915 to 1938 the public character of the burial ground had been established by those judgments. All attempts by the defendants who were the plaintiffs in the suits brought by them to get a declaration from the Courts that the graveyard was a private one failed and all the Courts have companysistently held during the companyrse of 22 years that both the parts of the present burial ground were a public graveyard where companypses of the Mahomedan companymunity of the village were buried. The mere fact that the defendants Labbais used to realise pit fees or other incidental charges would number detract from the nature of the dedication. Apart from that there is a document Ext. A-8 dated March 3, 1932 which is a certified extract of the proceedings of Municipal Council, Tiruvarur which shows that the Labbais themselves had filed an application before the Municipal Council for registering the burial ground as a graveyard. This document appears at pp. 247-248 of the Paper Book. It appears from this document that Syed Muhammad Kasim Sahib and Syed Abdul Rahiman Sahib residents of Vijayapuram had applied to the Municipal Council for registering the plot in dispute as a burial ground and the Municipal Council by its resolution accepted the application and registered the plot in question as a burial ground. This, therefore, clearly shows that as early as 1932 the Labbais themselves treated the present burial ground as a public graveyard and got the same registered in the Municipal Council. Apart from this, the oral evidence led by the parties clearly proves that the graveyard was a public one. P. W. 1 Mohamed Hanifa who is an old man of 65 years has stated in his evidence that before burial the Janaza prayers are offered and after the prayer the dead body is taken to the graveyard and buried. Similarly P. W. 2 Hyder Ali has stated that there is numberother burial ground where bodies of the Rowthers companyld be buried, implying that the Rowthers had been burying their dead in the burial ground in question. P. W. 3 Yehiya has also testified that the remains of the Muslims of Vijayapuram are buried in the burial ground attached to the mosque and that there is numberother burial ground. The defendants who had examined only two witnesses, W. I Syed Muharak and D. W. 2 Syed Mohamed Salia, have number denied that the Muslims of the village buried their dead in the burial ground. In this state of evidence, therefore, the companyclusion is inescapabie that the graveyard has been used for burying the dead of all the persons belonging to the Mahomedan companymunity ever since the land was sold to the saint-the ancestor of the defendants. It is true that the burial ground companytains the graves of the saint and the members of his family also, but that by itself would number show that the graveyard was a private one. On a companysideration of the oral and documentary evidence and the circumstarnces of the case we find ourselves in companyplete agreement with the finding of the High Court that the entire burial ground as shown in the sketch map is a public graveyard and the Mahomedan companymunity have a right to bury their dead subject to payment of pit fees and other charges that may be fixed by the defendants. In the first place the question of the graveyard being public one is clearly barred by res judicata against the defendants in view of the previous judgments discussed above, but even assuming that there is numberres-judicata there is overwhelming evidence in this case to prove that the burial ground is a public graveyard. It was, however, faintly suggested by learned companynsel for the appellants that it would appear from the sketch map that the burial ground companysisted of two partsthe eastern part and the western part-and as the western part is adjacent to the Dargah it should be held to be a private burial ground belonging to the family of the defendants. There is, however, numberlegal evidence on the record to prove this fact. Both the parts companystitute one single burial ground and there is numberhing to show that in burying the dead any distinction has been made between the eastern part and the western part. In fact this aspect of the matter had been referred to in one of the judgments discussed above. In these circumstanaes it is number possible for us to accept the companytention raised by learned companynsel for the appellants. For these reasons we find ourselves in companyplete agreement with the finding given by the High Court on this issue and we affirm the same. This brings us to the second question, namely, regarding the mosque and its adjuncts being public Wakfs. We have already found that the judgments relied upon by the appellants did number operate as res judicata and we number proceed to decide this issue on the facts and the evidence that have been led in this case. The parties admittedly belong to the Hanafi sect of the Mahomedans and are governed by the Hanafi Sunni School of Mahomedan Law. Before, however, going into this question it may be necessary to enter into an exhaustive discussion of the law on the subject, particularly because we find that the Civil Courts before whom this question came up for companysideration from one angle or the other have betrayed a profound ignorance of the Mahomedan Law Hanafi School of Wakf relating to a public mosque. The word wakf means detention or appropriation. According to the well recognized Hanafi School of Mahomedan Law when a Mahomedan dedicates his property for objects of charity or to God, he companypletely parts with the companypus which vests in God and never returns to the founder. Mahomedan Law companytemplates two kinds of Wakfs-a wakf which is private in nature where although the ultimate object is public charity or God, but the property vests in a set of beneficiaries chosen by the founder who appoints a Mutawalli to manage the wakf property. We are, however, number companycerned with private wakfs which are numbermally known as wakf-alal-aulad. We are companycerned with public wakf i.e., dedication made for the purpose of public charity e.g. an Imam-Bada, a mosque, a Serai and the like. So far as the dedication to a mosque is companycerned, it is governed by special rules and special equity in the light of which a particular dedication has to be determined. A mosque is obviously a place where the Muslims offer their prayers. It is well-known that there are certain formalities which have to be observed by the Muslims before they observe the prayers. These formalities are- Wazoo i.e. washing of hands and feet in a manner prescribed by Shariat the recitation of Azaan and Ikamat which is usually done by the Pesh Imam or the Muazzin there must be a person who possesses virtuous qualities and a knowledge of Koran and other religious rites who should lead the prayers. This is necessary in case of prayers offered in companygregation. A single Muslim can also offer his paryers with or without an Imam but the prayers in a companygregation or a Jamaat are offered only behind an Imam who leads the prayers. As Islam is an extremely modern and liberal religion. there is numberquestion of any person being denied admission into a mosque for the purpose of offering prayers and that is why the law is so strict that the moment a person is allowed to offer his prayers in a mosque, the mosque becomes dedicated to the public finally, it is number necessary for the dedication of a public mosque that a Muttawali or a Pesh Imam should be appointed which companyld be done later by the members of the Muslim companymunity. All that is necessary is that there should be a declaration of the intention to dedicate either expressly or impliedly and a divestment of his interest in the property by the owner followed by delivery of possession. Here also the delivery of possession does number involve any ritual formality or any technical rule. For instance in the case of a mosque if the Mahomedans of the village, town or the area are permitted to offer their prayers either on the vacant land or in a mosque built for the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes companyplete. Unfortunately the Courts which decided the previous litigation between the parties do number appear to be aware of the companysiderations mentioned above. In Baillies Digest of Moohummudan Law, Second Edition, the following passage occurs at p. 615 If a man should make a musjid within his mansion, and permit entrance to it, and prayers to be said in it, the place becomes a musjid, in all their opinions, if a way is made to it but number otherwise according to Aboo Huneefa. According to the other two, however, it becomes a musjid and the right of way follows, without any companydition to that effect. And if a door were opened to it on the highway, it would become a musjid. It was again observed at p. 616 When an assembly of worshippers pray in a musjid with permission, that is delivery. But it is a companydition that the prayers be with izan, or the regular call, two times or more, and be public, number private. When a man has an unoccupied space of ground fit for building upon, and has directed a kowm, or body of persons, to assemble in it for prayers, the space becomes a musjid, if the permission were given expressly to pray in it for ever, or, in absolute terms, intending that it should be for ever and the property does number go to his heirs at his death. It is also provided by the Shariat that once a musiid has been established by dedication numbercondition can be attached by the founder and if any such companydition is attached the said companydition would be void Vide the following observations of Baillie in his Digest of Moohummudan Law, 2nd Edn., at p. 617 When a man has made his land a musjid, and stipulated for something out of it to himself, it is number valid, according to all. It is also generally agreed that if a man make a musjid on companydition that he shall have an option, the wakf is lawful, and the companydition void. It was also pointed out by Baillie at p. 618 that where a person gives money for the repairs of a musjid or its maintenance it operates as a transfer by way of gift to the mosque and is valid. Baillie observed thus A man gives money for the repairs of a musjid, and for its maintenance, and for its benefit. This is valid for if it cannot operate as a wakf, it operates as a transfer by way gift to the musjid, and the establishing of property in this manner to a musjid is valid, being companypleted by taking possession. Ameer Ali in his book Muhammadan Law, Vol. 1, 3rd Edn., has given several instances of a companyplete and irrevocable dedication made by the wakif or the founder and the companysequences flowing from the same. Ameer Ali obseved as follows The proprietary right of the wakif in a building or ground set apart for prayers becomes extinguished either on the declaration of the wakif that he has companystituted it a mosque or musalla or companysecrated it for worship, or on the performance of prayers therein or thereon. Thus the moment a building is set apart for offering paryers the proprietary right of the wakif is companypletely extinguished. Similarly the following observations of the author indicate the various companytingencies in which a dedication can be made to a public mosque So that when a person erects a building with the object of dedication it as a mosque, and permits people to offer prayers therein, without declaring that he has companystituted it into a mosque, and prayers are offered there biljamaat, the mosque becomes irrevocably dedicated. When a mosque is erected or set up inside a dwellinghouse or residence dar , and permission is granted to the public to companye and pray, and a pathway is also made or set apart for their egress and ingress, the dedication is good by general companysensus. If a pathway is number indicated, in that case, according to Abu Hanifa, the dedication is number sufficient. But according to Abu Yusuf and Mohammed it is good, and the pathway will be implied by the permision to pray, and this is companyrect. At the same time, though the public may have numberright in a private mosque, it may companystitute a good wakf so as to exclude the rights of the heirs over it. Where prayers have been once offered, it is number necessary to prove an express dedication. The very fact of the prayers being offered in it will imply a valid and good dedication. Similarly, as the purpose of a mosque is that people should pray there is jamaat, it is required that where there is numberexpress dedication, prayers should have been offered there with the azan and ikamat. If prayers are offered once in a mosque it is sufficient to companystitute a good dedieation. According to Kazi Khan, the delivery of possession as regards a masjid is companyplete when only one person has prayed in it with azan and ikamat. The view universally adopted is that prayers offered by one person in a mosque is sufficient to companystitute it a public mosque devoted to the worship of God, for a mosque belongs to the Deity and there affixes to it a right of the Mussalmans in general, and one person can be a proxy for the establishment of the right of the Creator and the public. Therefore, if a person creates a mosque and gives permission to people to pray therein, it is an absolute wakf, and this opinion we adopt. The observations of the learned author are based on Radd-ul- Muhtar and other original religious books which companytain original law on the subject. The entire law on the subject has been explicitly and adroitly eluoidated by Tyabji in his book Muslim Law 4th Edn., where at p. 609 the author observes thus Under Hanafi law erecting or specifying a building for dedication as a masjid, does number companyplete and effectuate the dedication of the land and building, number cause the private ownership therein to cease until the owner divides them off from the rest of his property, provides a way to go to the masjid, and either permits public prayers to be said therein, or delivers possession of it to a mutawalli, or to the judge, or his deputy. x x x x For example, delivery in the case of a cemetery, is the burial of a person, and of a masjid, that people should pray there in jamaat. In the case of a mosque where there is numberexpress dedication it is necessary that prayers should have been offered with the azan or ikamat. It is also pointed out by the author in s. 550 at p. 612 of his Book that a masjid cannot be companysecrated for only a particular type of people or people belonging to a particular locality and if any such reservation is made it is void. In s. 551 it is pointed out that the site of a masjid never reverts to its original owner, or his heirs. Similarly Saksena in his Muslim Law 4th Edn., at p. 567 observes that under the Hanafi law a wakf for a mosque will be companypleted only when the waqif separates the land and the building from the rest of his property, so that his ownership companypletely ceases in it, and either he delivers possession of the masjid to a mutawalli or to the Judge, or allows public prayers to be read in it. Similar observations are also found in Mullas Principles of Mahomedan Law, 17th Edn., at p. 184. It would thus appear that in order to create a valid dedication of a public nature, the following companyditions must be satisfied 1 that the founder must declare his intention to dedicate a property for the purpose of a mosque. No particular form of declaration is necessary. The declaration can be presumed from the companyduct of the founder either express or implied 2 that the founder must divest himself companypletely from the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or an Imam of the mosque. Even if there is numberactual delivery of possession the mere fact that members of the Mahomedan public are permitted to offer prayers with azan and ikamat, the wakf is companyplete and irrevocable and 3 that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque. As regards the adjuncts the law is that where a mosque is built or dedicated for the public if any additions or alterations, either structural or otherwise, are made which are incidental to the offering of prayers or for other religious purposes, those companystructions would be deemed to be accretions to the mosque and the entire thing will form one single unit so as to be a part of the mosque. We would number refer to some authorities on the points discussed above. In Jewun Doss Sahoo v. Shah Kubeer-ood-Deen 1 the Judicial Committee explained the significance of the word dedication and observed thus According to the two disciples, Wukf signifies the appropriation of a particular article in such a manner as subjects it to the rules of divine property, whence the appropriators right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures. The two disciples therefore hold appropriation to be absolute, though differing in this, that Aboo Yoosaf holds the appropriation to be absolute from the moment of its execution, whereas Mahomed holds it to be absolute only on the delivery of it to a Mutwaly, or procurator , and, companysequently, that it cannot be disposed of by gift or sale, and that inheritance also does number obtain with respect to it x x x x Bestow the actual land itself in charity in such a manner that it shall numberlonger be saleable or inheritable. Similarly in Adam Sheik v. Isha Shaik. 1 a Division Bench of the Calcutta High Court pointed out that a mosque becomes companysecrated for public workship either by delivery or on the declaration of the wakif that he has companystituted it into a Musjid, or on the performance of prayers therein even by one person. In this companynection the Court observed as follows According to all the authorities, a mosque becomes companysecrated for public worship either by delivery to a Mutwalli see Baillies Digest, page 616 or on the declaration of the wakf that he has companystituted it into a musjid or on the performance of prayers therein Ruddul-Mukhtar Vol. III, p. 571 . The prayers of one individual alone would be sufficient so long as it is accompanied by Azan. In the Fatwa Kazi Khan the principle is thus stated - the delivery of possession as regards a musjid is companyplete when only one person has prayed in it with Azan and ikamat. The view universally adopted is that prayers offered by one person in a mosque is sufficient to companystitute it a public mosque devoted to the worship of God, for a mosque belongs to the Deity and there affixes to it a right of the Musulmans in general, and one person can be a proxy for the establishment of the right of the Creator and the public. Therefore, if a person create a mosque and give permission to people to pray therein, it is an absolute wakf, and this opinion we adopt. See also Fatwa Alamgiri, Vol. VI, and Baillies Digest p. 616 . The special purpose of a mosque is that persons should perform their devotions therein and according to the accepted doctrine even where there is numberevidence of an express dedication in words, if it appears that one single individual, other than the wakif has offered his prayers at the place after the usual summons or call to the public, the companysecration is companyplete. To the same effect is the decision of the Bombay High Court Saiyad Maher Husein v. Haji Alimahmed 2 where the following observations were made There are special rules in the case of mosques- Wilsons Anglo-Mohamedan Law, s. 320 Ameer Alis Muhammadan Law, Vo. I, p. 394 and Tyabjis Principles of Muhammadan Law, s. 514. When once a building has been set apart as a mosque it is enough to make it wakf if public prayers are once said there with the permission of the owner. x x x x Dedication may inferred from long user as wakf property. In my opinion it must be presumed that the roza and the mosque have been duly dedicated and have become wakf by user, and the presumption may fairly be extended to the other buildings and the land enclosed within the companypound wall which may be regarded as appurtenant to the roza. In Akbarally v. Mahomedally 1 the Bombay High Court pointed out that even a vacant place may be dedicated as a mosque without having the appearance of a mosque. The High Court observed as follows The general law of Islam in regard to devotions is so broad and liberal that the mosque in question will, even if number endowed with an Amil, be capable of furnishing for any devout Muslim at least of the Dawoodi Hohra companymunity a place where he may-with or without the ministrations of an Amil or authorised leader of prayers-five times every day of his life offer prayers. x x x x The books speak of an open space of building ground being companysecrated as a masjid. Nor is it necessary for the purpose of companysecrating a place or building as a masjid that there should be an Amil or any other religious officer appointed. It is also well settled that where a mosque has been in existence for a long time and prayers have been offered therein, the Court will infer that it is number by leave and licence but that the dedication is companyplete and the property numberlonger belongs to the owner. In Miru v. Ramgopal 2 the High Court of Allahabad observed as follows But where a building has stood on a piece of land for a long time and the worship has been performed in that building, then it would be a matter of inference for the Court which is the judge of facts, as to whether the right has been exercised in that building for such a sufficiently long time as to justify the presumption that the building itself had been allowed to be companysecrated for the purposes of such rights being performed. Where there is a mosque or a temple, which has been in existence for a long time, and the terms of the original grant of the land cannot number be ascertained, there would be a fair presumption that the sites on which mosques or temples stand are dedicated property. To the same effect is the decision of the Nagpur High Court in Abdul Rahim Khan v. Fakir Mohammad Shah. 3 The same principles are legally deducible from the decisions in Masjid Shahid Ganj Mosque v. Shrimani Gurdwara Parbandhak Committee, Amritsar 4 Musaheb Khan v. Raj Kumar Bakshi 5 and Maula Baksh v. Amiruddin. 6 Similarly regarding the portions which are adjuncts to the mosque the Bombay High Court has clearly observed that the said adjuncts will form part of the mosque and would number be the private property of the founder. The Nagpur High Court has also made similar observations. These observations have already been quoted above. This Court also in Mohammad Shav v. Fasihuddin Ansari 1 observed as follows After a careful survey of the evidence we have reached the following companyclusions 1 that the old mosque as it stood in 1880 is proved to be wakf property but that numberhing beyond the building and the site on which it stood is shown to have been wakf at that date 2 that this property has been added to from time to time and the whole is number separately demarcated and that the additions and accretions form a companyposite and separate entity as shown in the plaintiffs map. This is the area marked ABCD in that map 3 that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately demarcated companypact unit for a single purpose, namely, companylective and individual worship in the mosque, it must be regarded as one unit and be treated as such. The whole is accordingly number wakf. 4 that the accretions were made by Gulab Shah and the defendant both of whom claimed to be Mutwallis of the mosque 5 that this area also includes the shops and chabutra shown to the west of the mosque in the plaint map on a triangular piece of land 6 that the urinal, water pipe and bathroom were companystructed for the use of the worshippers and so must be regarded as an adjunct of the wakf Having discussed the law on the subject, we will number examine the question as to whether or number the mosque and the adjuncts thereof companystitute a public wakf. We have already mentioned that the entire land in dispute companysisting of the mosque, its adjuncts, the burial ground etc. was originally acquired by virtue of the documents Ext. B-1 dated May 12, 1730 and Ext. B-2 dated May 22, 1797 which have been referred to in an earlier part of this judgment. The land in Ext. B-1 was acquired by the saint Syed Sultau Makhdoom Sahib who has been entombed in the land on which the Dargah has been built. A part of the site has been used companytinuously as a public burial ground and has become a public grave-yard as wakf as held by us. So far as the Dargah is companycerned the Courts below have companycurrently found as a fact that it was a private Dargah of the defendants Labbais and that there was numberevidence to show that it was ever companystituted as a public wakf. Learned companynsel for the appellants in Civil Appeal No. 2026 of 1968 has number pressed his appeal relating to the Dargah. On a perusal of the evidence both oral and documentary we are satisfied that the Dargah has number been proved to be a public property, but is the private Dargah of the Labbais whose ancestor the original saint has been entombed therein. As Sayed Sultan Magdoom Sahib was a great saint and was held in great respect by all the villagers and as there was numbermosque in the village at all it was only natural that the Muslims of the village would think of building a mosque in the village and they companyld find numberbetter place to companystruct a mosque than the land in dispute, a part of which companytained the Dargah of the great saint where he was entombed. The entire land was acquired by Ext. B-1 which was executed by Thirumalai Kolanda Pillai in favour of the saint as far back as May 12, 1730. The rest of the land was acquired by another sale deed Ext. B-2 dated May 22, 1797 executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who was a direct descendant of the saint. This is the origin of the lands in dispute. So far as the mosque and its adjuncts are companycerned, it would appear from the sketch map as also from the evidence produced by the parties that this part of the land companysists of the following companystructions 1 the main prayer hall which is companymonly known as the mosque or Pallivasal Mandapam or Vang Mandai as described by the witnesses which is a sort of a companyered platform where according to the plaintiffs prayers are offered by the members of the Mahomedan public when the space in the main mosque is number sufficient to accommodate the big crowd. There is a small chamber in the nature of a store room adjacent to the mosque and a thatched shed. There is also a pond where water is pumped in through a pump-set which has been installed by the Mahomedans of the village, particularly the plaintiffs. There is also a latrine to the south of the burial ground sons east of the mosque which is used for the persons who companye to offer prayers in the mosque and the Mandapam. Apart from these companystructions the evidence shows that a few years back the whole place was electrified and a tower was also built in the nature of a minaret in the mosque and a loud-speaker was also fitted for the purpose of reciting Azan and Khutbas etc. According to the defendants the mosque itself was a private mosque of the saint who had merely permitted the plaintiffs ancestors to companystruct the prayer hall there, but there was numberformal dedication of the property as a mosque. The defendants further averred that even if the prayer hall be regarded as a public mosque the other companystructions which were made subsequently were the private property of the defendants and did number form part of the mosque. We would first take up the question whether the prayer hall i.e. the Pallivasal which is shown in the sketch map towards the south of the Dargah was dedicated as a mosque. We have already pointed out that under the Mahomedan Law a dedication may be oral or in writing and numberparticular form or method for companystituting a wakf has been prescribed by the Mahomedan Law. It is largely a question of the intention of the founder who after having made a declaration divests himself of his interest in the property and gives delivery of possession of the same in accordance with the manner in which it is capable of being delivered. In the case of a mosque his permission or the bare act of allowing the members of the Mahomedan public to or prayers amounts to a companyplete delivery of possession. In the instant case fortunately there is an important document Ext. B-3 a better translation of which is Ext. B-4 which clearly shows the intention of the founder and which in our opinion, on a proper interpretation of the terms thereof, amounts to a permanent and an irrevocable dedication to God companystituting a valid public wakf. We would number examine the companytents of this document, the relevant portions of which may be extracted thus Whereas we are companystructing a Pallivasal at the Durga MEDAI raised platform belonging to Karrath Sultan Mahdoom Sahib with the permission of the Sahib avergal for the purpose of worship, after the companypletion of the said Pallivasal mosque by the Grace of Allah, we shall claim numberright whatsoever in respect of the said Pallivasal except that we shall worship therein. At the time of Kanduri annual festival we shall act according to usual practices mamool . We shall number require the income derived either from the Sultan Mahdoom Sahib Durga or from the Pallivasal we number build. In the Pallivasal we build, we shall claim numberother rights whatsoever except worshipping therein, we shall by lighting lamps and attending to the maintenance of the same. There shall be a doorway and two windows affixed on the southern wall of the said Pallivasal and one doorway on the eastern side with a wall around it. To this effect is this deed of agreement executed with companysent by all of us living in this village in favour of Saheb Avergal. Before analysing the terms of the above document, the following admitted facts may be reiterated 1 that the Mahomedans of the village sought permission of Masthan Ali Khader Sahib for erecting a building for the purpose of worship on the land belonging to him 2 that the evidence establishes that there was numbermosque at all in the village of Vijayapuram which companysisted of a substantial portion of the Muslim population 3 that the idea of companystructing the mosque originated from the plaintiffs ancestors who companystituted the bulk of the Muslim population in the village, the defendants ancestors being a very small family in that village. Against the background of these facts we might number analyse the terms and companyditions of the agreement which shows the nature of the dedication. To begin with, the agreement recites i that the Rowthers were companystructing a Pallivasal at the raised platform belonging to the Labbai Masthan Ali Khader Sahib with his permission, ii that after companypletion of the companystruction which is described as a mosque in the agreement, the Rowthers will have numberclaim or right, except the right to worship therein iii that the only rights which the Muslims would claim would be the right to worship, to light lamps and will also be responsible for the maintenance of the mosque iv that the said companystruction was made purely for the purpose of worship v that there shall be a doorway and two windows affixed on the southern wall of the mosque and one doorway on the eastern side so as to serve as entrances. In other words this important recital in the agreement clearly shows that the agreement was to make a separate entrance to the mosque in order to companystitute it as a separate entity. The owner Masthan Ali Khader Sahib had given his tacit companysent to all the terms of the agreement and in the eye of law he being a party to the agreement he allowed the mosque to be companystructed number for the private members of his family but for worship of God by the entire Mahomedan public. The document thus unmistakably evidences the clear intention of the founder to companysecrate the mosque for public worship and amounts to a declaration of a public wakf. By providing for separate entrance through doorway and windows the owner agreed to separate the mosque from the rest of the property namely the Dargah and the companypound. Thirdly by allowing the entire Mahomedan companymunity of the village to worship in the mosque and to perform other ceremonies the owner of the land gave delivery of possession to the mosque. A perusal of the terms and recitals of the document Ext. B-4, therefore, manifestly shows that Masthan Ali Khader Sahib being a saint himself unequivocally and categorically divested himself of the entire interest in the mosque and made it a public wakf. We agree with the view that a place may be dedicated as a mosque or masjid without there being any building as held in Akbarallys case supra . But in the instant case since the building in the nature of a mosque was built a clear case of dedication has been made out. Once the mosque was companystructed it stood dedicated to God and all the right, title and interest of the owner got companypletely extinguished. This happened as far back as February 16, 1829, i.e. about a century and a half ago. Since then the mosque has been used companystantly for the purpose of offering prayers. This fact has been proved by the documents which we have discussed above and also from the oral evidence led by both the parties which we will companysider hereafter. It is further companytended that under the agreement, the plaintiffs clearly stipulated number to claim any right or interest in the mosque and, therefore, they cannot number be heard to say that the mosque was a wakf property. This argument appears to have found favour with the Trial Court. But in our opinion it is based on a serious misconception of the Mahomedan Law on the subject. Once there was a companyplete dedication to the mosque as a place of public worship any reservation of companydition imposed by the owner would be deemed to be void and would have to be ignored. Moreover we do number companystrue the socalled stipulation by the plaintiffs ancestors at the time of erecting the prayer hall as an assertion that the mosque was number a public wakf. Reading the statements made in the agreement as a whole what the plaintiffs ancestors meant was that the mosque would be undoubtedly a public wakf meant for the purpose of public worship and that they would number interfere with the management of the same. This does number mean that if the founders descendants indulged in mismanagement of the mosque the plaintiffs as members of the Mahomedan companymunity companyld number take suitable action under the law against the defendants. This argument is, therefore, negatived. As regards the adjuncts of the mosque the details of which have been given by us, the same were built by the Mahomedan companymunity from time to time for the purpose of the mosque or by way of a gift to the mosque. We would number refer to the oral evidence on the point. W. 1 Mohamed Hanifa who is an old man aged 65 years and is one of the Rowthers states that there are 200 houses of Rowthers and only 7 to 8 houses of the Labbais in the village. The witness mentions the various adjuncts to the mosque, namely, the tank, pump house, installed pump set, the latrine to the east of the pump house and a plaform which he calls as Vang Madai. The witness further goes on to state that the mats and loud-speakers are kept in the storeroom. The mats are usually used by the Mahomedans for offering their prayers and the loud-speaker is used for reciting Azans or reading Khutbas relgious sermons which are usually done after the prayers are over. This witnesss evidence also shows that when the Muslims want to bury their dead they companye to the mosque for performing Namaz-e-Janaza special funeral prayers . According to P. W. 1 the companyridor which companynects the thatched shed with the plaform was built by Ismail who was number a Labbai. The Vang Medai was built by Mustapha Rowther and this was companystructed about 30 to 35 years ago and so was the Verandah which is shown in the sketch map as the thatched shed. The witness also states that so far as the doorway is companycerned it is there since a long time and it actually finds mention in Ext. B-4. According to the witness the platform, the Vang Medai, was built when he was 10 to 12 years of age i.e. about 50 years from the date of his deposition. These facts do number appear to have been denied by D. Ws. 1 and 2 who have appeared on behalf of the defendants except with respect to the persons who made these companystructions. In our view the question of the person who actually made the companystruction is wholly irrelevant because all the companystructions made by any person used for religious purposes incidental to offering of prayers in the mosque would be deemed to be accretions to the mosque itself and there is unchallenged evidence to show that all the companystructions were used by the Mahomedan companymunity for the purpose of offering their prayers in the mosque on special occasions. W. 2 Hyder Ali who is a Labbi admits that he acted as an Imam and that 300 to 400 of Muslims assemble for prayers and when so many persons assemble the entire space of the mosque right from the prayer hall to the companyridor is fully occupied. The witness further says that after Khutbas, Koran is read and explained. Similar is the evidence of P. W. 3 Yehiya who also says that Muslims offer their companygregational prayers when their number swells upto 400 to 500 and that mats and carpets are kept in the store room. W. 4 Mohamed Mesra Hussain who is aged 64 years affirms that prayers have been offered in the mosque for the last 50 years and that there is numberother mosque in Vijayapuram. He also testifies to the fact that the mosque is administered by the Rowthers since last 30 years and the Dargah was managed by the Labbais. He also states that on the occasion of Friday prayers about 300 persons assemble in the mosque right from the main hall to the companyridor. W. 5 Abdul Majeed says that Vanga Mandapam and the companyridor were companystructed by Abdul Rahzan some time in 1931 and the people assemble right from the mosque to the companyridor. This is all the evidence given by the plaintiffs. W. I Syed Mubark who is the companytesting defendant admits that the Mandapam was companystructed by Sayed Mohd. Hussian about 30 to 35 years ago and that the mosque was companystructed by the Rowthers. He further admits that the defendants never objected or obstructed the Rowthers from offering their prayers. He further admits that a pump set was installed to pump water into the tank. He also admits all Muslims gather and pray in the mosque. W. 2 Mohamed Salis admits that the Hauz and the Verandah were built by Abdul Rahman under the supervision of Qasim though the funds were supplied by Ismail. Thus even the witness for the defendants clearly admitted the nature and character of the various adjuncts to the mosque. The D. Ws., however, have tried to minimise the number of people who assembled during Friday prayers by saying that it would be between 40 to 50. But that is obviously wrong. It is well known that on special occasions like Fridays, Id, Ide-Milad and other auspicious occasions the entire Muslim companymunity flock to the mosque for the purpose of offering prayers, because offering of prayers on such days is, according to the Islamic tenets, extremely auspicious and highly efficacious. It is also established from the evidence that the companystructions referred to above had been made for the purpose of the mosque. Before a Mussalman offers his prayers he has first to wash his hands and feet in the prescribed manner and for this purpose arrangements are made in every mosque, and Pallivasal is numberexception. Accoedingly a tank or a Hauz, where water was pumped in was meant for the purpose of Wazoo i.e. for washing hands and feet which is a prerequisite for offering the prayers. Similarly as a large number of Muslims assembled on special occasions as mentioned above, the entire space including the mosque, the Mandapam, and the companyridor was used for the purpose of offering prayers. Thus these companystructions were used for religious purposes incidental to the offering of prayers and have become accretions to the mosque so as to companystitute one single entity. Similarly the mats are meant for the Mahomedans to be used at the time of offering prayers. Lastly the loud speaker is used for reciting Azan and delivering Khutbas i.e. religious sermons. Thus all the adjuncts of the mosque are meant for purely religious purpose companynected with the offering of prayers in the mosque. The case of the defendants was that these companystructions were their private property, but there is number an iota of evidence to prove the same. The law on the point is well settled that where any companystruction is made for the purpose of the mosque or for its benefit or by way of gift to the mosque, the same also becomes a public wakf. The statement of the law on the subject as mentioned by Baillie in his Digest of Mohummudan Law has already been extracted by us. In these circumstances, therefore, the companyclusion is inescapable that the mosque as also all its adjuncts referred to herein companystitute one single unit and the entire thing a public wakf. Mr. Krishnamoorthy Iyer appearing for the appellants submitted that although Ext. B-4 shows that a mosque in the shape of a raised platform was companystructed by the Rowthers but there is numberevidence of any formal dedication or dedication to the wakf. This argument fails to companysider the essential requirements of a public wakf under the Mahomadan Law and particularly the rules which require dedication to the mosque. The act of permitting the Mahomedans to build a mosque itself amounts to a companyplete dedication or a declaration that the mosque is a public property. Further by giving delivery of possession of the site for the purpose of building a mosque and by allowing prayers to be offered in the mosque, the founder, namely Masthan Ali Khadar Sahib made a companyplete public wakf in the shape of a mosque. Nothing, therefore, remained with the founder or his descendants. Mr. Iyer relied on a decision in Jafar Hussain Mohd. Ghias-ud-din. 1 This case is, however, clearly distinguishable because it was number a case of a mosque which is governed by special rules for dedication. In that case the property used was a Haveli or a house and on the facts of that case the Court held that there was numbervalidly companystituted wakf. Reliance was also placed on a decision of this Court in Nawab Zain Yar Jung v. The Director of Endowments 2 . This also was number a case of a mosque and this Court, on the facts of that case, held a that the trust created was number a wakf but a secular public charitable trust. If the instant case, however, agreement Ext. B-4 clearly recites that the property being built on the land of the founder was a public mosque to be used for public purpose of offering prayers. Lastly our attention was drawn to the decision of the Nagpur High Court in Jawaharbeg v. Abdul Aziz 3 . That case also is of numberassistance to the appellants because while the Court held a part of the property to be a mosque the other parts which had absolutely numberconnection to the wakf property were held to be the private property. For these reasons, therefore, the companytention put forward by the appellants is over-ruled On a companysideration, therefore, of the facts, circumstances and the evidence of the present case, we are satisfied that the mosque as also its adjuncts companystituted wakf properties and had been used as such for a long time so as to culminate into a valid and binding public wakf. We have already held that as the public character of the wakf was number in issue in the previous judgments relied upon by the appellants, the said judgments did number operate as res judicata. We, therefore, affirm the finding of the High Court on this issue. It was next companytended by the appellants that the suit was barred by s. 55 2 of the Wakf Act, 1954, which runs thus No suit to obtain any of the reliefs referred to in sub-section 1 relating to a wakf shall be instituted by any person or authority other than the Board without the companysent in writing of the Board Provided that numbersuch companysent shall be required for the institution of a suit against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules or orders made thereunder. The High Court has dealt with this aspect of the matter and has pointed out that at the relevant time when the present suit was brought, numberBoard companytemplated by the provisions of the Wakf Act had, however, been companystituted and therefore the provisions of s. 55 2 were number at all attracted, number were those provisions capable of being acted upon. In these circumstances, therefore, the number-compliance with the requirements of s. 55 2 of the Wakf Act would number bar the maintainability of the present suit. Lastly it was companytended that even assuming everything against the appellants the companyditions of s. 92 of the Code of Civil Procedure were number at all fulfilled in this case, because the defendants companyld number be called the trustees within the meaning of s. 92 of the Code of Civil Procedure and the Advocate-General companymitted an error of law in granting the sanction to file the present suit. It is true that the defendants have only been de facto managers of the properties in suit either as Pesh Inams or otherwise but that does number make any difference so far as application of s. 92 of the Code of Civil Procedure is companycerned. It is true that s. 92 of the Code applies only when there is any alleged breach of any express or companystructive trust created for a public, charitable or religious purpose. It also applies where the direction of the Court is necessary for the administration of any such public trust. In the instant case the defendants have numberdoubt been looking after the properties in one capacity or the other and had been enjoying the usufruct thereof. They are, therefore, trustees de son tort and the mere fact that they put forward their own title to the properties would number make them trespassers. In Abdul Rahim Khans case supra a Division Bench of the Nagpur High Court observed thus The defendants predecessors who were parties to that suit as defendants were in law number trespassers but trustees. They claimed to be so. They acted as such, but had wrongly begun to assert title to which they were number entitled to and therefore the suit against them, a suit under s. 529 equivalent to the present s. 92 of the Civil Procedure Code does lie for removal of such de facto or companystructive trustees, as has been laid down in I.L.R. 1942 1 Cal 211 at pp. 215, 219 and A.I.R. 1940 Pat. 425 The plaintiffs in their plaint never stated that the defendants were trespassers, and it is the allegations in the plaint that determine the nature of the suit and the jurisdiction. The defendants denial in the pleadings will number in any way affect the nature of the suit under S. 92, as held in 11 Pat. 288 and 63 Cal. 74. To the same effect are the decisions in Mahomad Shirazi v. Province of Bengal 1 and Ramdas Bhagat v. Krishna Prasad 2 . In our opinion these decisions lay down the companyrect law on the subject. We, therefore, hold that s. 92 of the Code of Civil Procedure is clearly applicable to the case. Counsel for the appellants lastly argued that there is numberevidence to show that the appellants have companymitted any negligence in managing the trust properties. Even the Trial Court which had dismissed the plaintiffs suit had returned a clear finding of fact that the defendants were guilty of gross negligence in managing the properties. In this companynection the Trial Court found as follows It was pointed out that there was mis-management. That there is mis managment cannot be disputed. For one thing, in spite of the decree of the companyrt for removal of certain superstructures on the burial ground the Labbais evaded the Issues for a period of over twenty years. The plaintiffs have proved that plaint B-schedule property has been dedicated to the Dargah. But this property has been alienated by the predecessors-in-interest of the defendants. In exchange, they have obtained C-schedule property. The next companytention was that the defendants havve number maintained accounts. It is true that the evidence does number disclose that any accounts were maintained or being maintained by the Labbais defendants. The learned Judge, however, tried to explain away these acts of misfeasance on the ground that as the Rowthers undertook number to interfere with the management or ask for the account, the negligence companymitted by the defendants, if any, was number actionable. In view of our findings, however, that the mosque, its adjuncts and the burial ground are public wakfs the question of negligence assumes a new companyplexion. Apart from the acts of mismanagement, there is definite oral evidence of the plaintiffs to show that the graveyard is number properly managed and maintained. The boundary wall has broken and cattle enter the graveyard leading to its desecration. The evidence of the plaintiffs also shows that even the mosque is in a state of disrepair and numberattempt is made to repair or maintain it properly. Further more, the defendants have companystructed shops on a part of the graveyard and in spite of several decrees of the Courts to demolish those shops they have number yet obeyed the orders of the Court to demolish the same. In these circumstances, therefore, there is overwhelming evidence on the record to show that the defendants were guilty of grave mismanagement, and therefore a clear case for formulating a scheme under s. 92 of the Code of Civil Procedure by a suit has been made out by the plaintiffs. The schemes, however, will be companyfined only to the mosque, its adjuncts and the burial ground and number to the Dargah which has been held to be the private property of the defendants. There is some dispute about the right to act as an Imam. We have already pointed out that the Mahomedan Law does number favour the hereditary right of being an Imam because an Imam must possess certain special qualities and certain special knowledge of the scriptures before he can be allowed to lead the prayers. The evidence shows that the Labbais have undoubtedly been acting as Imams, though number for a companytinuous period. This, however, is a matter for the entire Muslim companymunity to decide because an Imam is numbermally chosen under the Mahomadan Law by the Muslim companymunity. There is numberclear evidence of any usage or custom by which the right to act as Imam is hereditary in this case. Nevertheless we would like to observe that the defendants are after all the descendants of the founder of the entire premises which had been companystituted as public wakf by their ancestors. Under the agreement Ext. B-4 the Rowthers on behalf of the Muslim companymunity undertook number to claim any right in the mosque and although that would number act as an estoppel once the property becomes a public wakf we think that the Court at the time of framing a scheme would companysider the desirability of associating some of the defendants with the framing of the scheme and may even appoint a suitable person from among the Labbais to look after the properties on imposing such terms and companyditions as the Court thinks fit. But the primary companysideration should be the welfare of the wakf properties. In case the Labbais are number found suitable for being given any share in the administration of the mosque, the Court will be free to withhold the right. We, therefore, affirm the judgment of the High Court in all the appeals. The result is that the appeals filed are dismissed, but in the peculiar circumstances of the case there will be numberorder as to companyts in this Court.

Leave granted. Heard the learned companynsel for the parties. By order dated 30.1.2001, IIIrd judicial magistrate, Meerut issued summons for the offences punishable under Sections 323/34, 324/34, 307/34 and 506 IPC, in companyplaint No. 1406 of 2000. Against that order, respondent Nos. 2 and 3 preferred criminal revision No. 154 of 2001 before the sessions judge, Meerut. After companysidering the evidence which was recorded in the inquiry under Section 200 of Criminal Procedure Code, the 7th additional, district judge, Meerut arrived at the companyclusion that on the basis of available evidence on record, the trial companyrt rightly exercised its jurisdiction in summoning the accused. Hence, revision application was dismissed by judgment and order dated 25.1.2002. Against that order, criminal misc. writ petition No. 830 of 2002 was preferred before the High Court and the High Court set aside the order passed by the magistrate issuing summons against respondent Nos. 2 and 3 herein for the offence punishable under Section 307 PC on the ground that magistrate had examined only two witnesses along with the companyplainant and has passed the order summoning the accused and, therefore, it was violative of Section 202 of the Criminal Procedure Code. At the time of hearing of this matter, learned companynsel for the appellant states that companyplainant is relying upon the evidence of the witnesses who were examined by the magistrate during inquiry under Section 202 Cr.P.C. In the present case, it has been pointed out by the appellant that he has examined all the relevant witnesses including eyewitnesses, police companystable, who took him to the hospital for examination of the injuries and the medical officer who examined him and, therefore, there was numberquestion of number examining the relevant witnesses.

Arising out of SLP C No. 9735/2005 B. Sinha, J. Leave granted. The appellant claims himself to be a member of Halba companymunity. Halba is a Scheduled Tribe. He obtained admission in the companyrses of Bachelor of Engineering Instrumentation Engineering in Pune University, Respondent No.4 , claiming himself to be belonging to Halba a Scheduled Tribe companymunity. According to the appellant, the question as to whether Koshti-Halbas are members of Scheduled Tribe or number had been authoritatively decided for the first time in State of Maharashtra vs. Milind Ors. 2001 1 SCC 4 and in that view of the matter, he had represented himself to be a member of Scheduled Tribe. Drawing our attention to the fact that even in Milind supra , this Court directed that those, who have companypleted their companyrses from the universities, should be allowed to obtain degrees and get the benefit thereof as general candidates, the appellant was also entitled to a similar relief. Indisputably, the Caste Scrutiny Committee companystituted in terms of the decision of this Court in Kumari Madhuri Patil Anr. vs. Additional Commissioner, Tribal Development Ors. 1994 6 SCC 241 invalidated the caste certificate granted in favour of the appellant. In the writ petition filed by him thereagainst, an interim order was passed in his favour, in terms whereof he obtained admission in the companyrse of Bachelor of Engineering Instrumentation Engineering in the Government Engineering College, Pune, which is affiliated to the respondent No.4-University. The High Court allowed the writ petition and remitted the matter back to the Scrutiny Committee. His claim was rejected by the Scrutiny Committee by an order dated 30th September, 2002. In a writ petition filed by him before the Nagpur Bench of the Bombay High Court questioning the said order of 30th September, 2002, numberinterim relief was granted, but, the appellant companytinued with his studies. The said writ petition was dismissed for default, but, it was restored. He companypleted his studies in the year 2004. He appeared at the examination. An application was filed by him for a direction to respondent No.4-University to supply him the degree along with the marksheet. However, in the meantime, the writ petition itself was dismissed on merits. Thus, numberorder was also passed on the said application. The review application filed by the appellant herein has been dismissed by the High Court by reason of the impugned order. The learned companynsel appearing on behalf of the appellant merely urged that this Court may issue a direction to the University to grant him the degree as he has companypleted his companyrses of studies in the meantime. Mr. Ravindra Kumar Adsure, learned companynsel appearing on behalf of the State and Mr. Makrand D. Adkar, learned companynsel appearing for respondent No.4-University, however, submitted that the appellant has number made out any case for obtaining any relief from the High Court having failed to show his bona fide. It was urged that as the appellant has played fraud on the statutory authorities, he is number entitled to any equitable relief. Reliance has been placed on Bank of India Anr. vs. Avinash Mandivikar Ors. 2005 7 SCC 690 and Ram Saran vs. I.G. of Police, C.R.P.F. Ors. 2006 2 SCALE 131. It number stands admitted that the appellant did number belong to Halba companymunity. He was a Koshti. On verification of his caste certificate the Vigilance Cell found that his school records clearly showed that the appellant belonged to the Koshti companymunity. The question as regards invalidation of caste certificate came up companysideration before this Court in Kumari Madhuri supra , wherein this Court directed the Central Government and the State Governments to companystitute Caste Scrutiny Committees to go into such issues as and when they arise for companysideration. Indisputably, a finding of fact has been arrived at by the Caste Scrutiny Committee against the appellant negativing his claim that he is a member of Scheduled Tribes. However, the fact remains that he got himself admitted in view of an interim order passed by the High Court. Indisputably, the question as to whether Koshti-Halbas are members of Scheduled Tribe or number was authoritatively answered only in Milind supra , which was decided on 28th November, 2000, wherein it was observed Respondent 1 joined the medical companyrse for the year 1985-86. Almost 15 years have passed by number. We are told he has already companypleted the companyrse and may be he is practising as a doctor. In this view and at this length of time it is for numberodys benefit to annul his admission. Huge amount is spent on each candidate for companypletion of medical companyrse. No doubt, one Scheduled Tribe candidate was deprived of joining medical companyrse by the admission given to Respondent 1. If any action is taken against Respondent 1, it may lead to depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall number affect the degree obtained by him and his practising as a doctor. But we make it clear that he cannot claim to belong to the Scheduled Tribe companyered by the Scheduled Tribes Order. In other words, he cannot take advantage of the Scheduled Tribes Order any further or for any other companystitutional purpose. Yet again in R. Vishwanatha Pillai etc. vs. State of Kerala Ors. etc. 2004 2 SCC 105, a Three Judge Bench of this Court had the occasion to deal with a similar issue. Following Milind supra , this Court held In this case we find that the appellant had joined Regional Engineering College in the year 1992. He companypleted the companyrse of his studies in the year 1996 under the interim orders of sic the High Court which were subject to the final orders to be passed in the writ petition. No purpose would be served in withholding the declaration of the result on the basis of the examination already taken by him or depriving him of the degree in case he passes the examination. In terms of the orders passed by the Constitution Bench of this Court in State of Maharashtra v. Milind we direct that his result be declared and he be allowed to take his degree with the companydition that he will number be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him. His caste certificate has been ordered to be cancelled. Henceforth, he will be treated as a person belonging to the general category for all purposes. A different opinion, however, was struck in Bank of India Anr. vs. Avinash D. Mandivikar Ors. 2005 7 SCC 690, wherein a Two Judge Bench of this Court distinguished Milind supra and Vishwanatha Pillai supra stating that protection given therein cannot be extended to an employee of a Bank and, thus, the factors which weighed with this Court cannot be applied to the respondent therein. The Court observed that in any event, if Respondent No.1 had played fraud, he should number be allowed to get the benefits thereof. The same learned Judge in Ram Saran supra held that leniency should number be shown to a person who admittedly companymitted forgery. The issue again came of up companysideration in LIC of India vs. Sushil 2006 2 SCC 471, wherein this Court remitted the matter back to the High Court observing that Before us it was urged on behalf of Respondent 1 that in the State of Maharashtra at the relevant time there were resolutions government orders which made the respondent believe that there was numberfraudulent intention in claiming to be Halba. Mr. Lalit, learned companynsel for the respondent submitted that numbere of these aspects including various GRs have been companysidered. The High Court in the present case proceeded on the basis as if mere filing of an undertaking in the line suggested by the writ petitioner was sufficient to bring the case under the umbrella of the decision in Milind case. That is clearly number so. As the High Court has number companysidered the matter in its proper perspective, except relying on Milind case we think it appropriate to remit the matter to the High Court for a fresh companysideration on merits of the case on the grounds, if any, without being influenced by any observation in this order. Some peculiar characteristics exist in this case The appellant companypeted his substantial tenure as a student under the interim orders passed by the High Court. No opportunity of hearing was given to him by the Scrutiny Committee at the first instance and his first writ petition was allowed. Although, in the second writ petition, he companyld number obtain any interim order, yet he was allowed to companytinue his studies without any demur by the State and University authorities. He filed an application after companypletion of his studies that respondent No.4-University should be directed to issue to him the degree of Bachelor of Engineering. No order was passed thereupon. A review application was filed on the basis that the Bench did number take into companysideration the decision of this Court in Milind supra . A person indisputably is number entitled to a relief only because an interim order was passed in his favour, but the premise on which such an interim order was passed would assume some significance in the instant case in so far as a presumption may be drawn that prima facie the appellant was number companysidered guilty of companymission of fraud and the possibility that the question in regard to his status as a member of Scheduled Tribe as the issue as to whether Koshti-Halbas were members of Scheduled Tribe had number been finally determined, was in the mind of the companyrt. See for example, Employees State Insurance Corporation vs. Distilleries Chemical Mazdoor Union Ors. 2006 7 SCALE 171. The appellant took his admission in the year 1998, i.e., prior to the decision of this Court in Milind supra . It is true that he had obtained his admission in a professional institution number purely on the basis of his merits but on the basis that he belonged to a reserved category. It is also true that thereby he might have deprived a genuine student of reserved category from obtaining admission, but, in a case of this nature, what is necessary to bear in mind is the bona fide or otherwise of the appellant. He might number have semblance of right as was observed by the High Court but as the learned companynsel for the appellant states that he might have been under a bona fide belief that Koshti-Halbas were members of a Scheduled Tribe. It is number in dispute that the Bombay High Court held so. However, as it appears from the decision of this Court in LIC supra that the State might have also issued some Government orders making such declaration. Indisputably, the companyduct of a party assumes significance in moulding the relief. This companyrt, while exercising its discretionary jurisdiction and to do companyplete justice between the parties in terms of Article 142 of the Constitution of India, must companysider all relevant aspects of the matter, including the decisions of this Court. The doctrine of proportionality emerging from the recent trend of decisions in preference to the doctrine of Wednesbury unreasonableness is also a factor which weighs with us. See Teri Oat Estates P Ltd. vs. U.T., Chandigarh Ors. 2004 2 SCC 130 and A. Sudhakar vs. Post Master General, Hyderabad Anr. 2006 3 SCALE 524. We do number find any lack of bona fide on the part of the appellant. He, it will bear repetition to state, got admission in the professional companyrse as far back in the year 1998. For about last three years, he had number been able to receive his degree of Engineering, although, he pursued his studies after he had passed class 12th examination. Just like Medical Education, the State also incurs a heavy expenditure in imparting other professional education like Engineering. We, in the peculiar facts and circumstances of this case, are number inclined to go into the question as regards purported companymission of fraud by the appellant, particularly, when the University admitted him without any demur whatsoever. We are doing so having regard to the doctrine of proportionality. The appellant has suffered a lot. He might number be entirely responsible therefor. He might have been under a bona fide belief that he companyes within the purview of numberified category. We, therefore, albeit with much reluctance accept the fervent and impassionate plan made by the learned companynsel appearing for the appellant that he be allowed to obtain the degree. The same shall, however, be subject to payment of Rs.1 lakh in favour of the State of Maharashtra so as to recompense the State to some extent the amount spent on him for imparting education as a reserved category candidate. Such payment must be made within three months from this date. On filing satisfactory proof of the deposit of such an amount, the respondent No.4 shall immediately issue the degree in his favour.

The Judgment of the Court was delivered by RAMASWAMY, J.- The appellant judgment-debtor, was a tenant of Smt Shanti Devi, who applied on September 28, 1974 for eviction of him for companymitting default in paying the rent. On September 30, 1974, she sold it to the first respondent who got impleaded himself in the pending proceedings and also independently sought for eviction. Pending the proceedings the appellant deposited rent in the name of Shanti Devi which number is ultimately found to be Rs 13,440. The decree for eviction made against him was ultimately companyfirmed by this Court. The suit of the first respondent for the affairs of rent was decreed for a sum of Rs 6,419.98. Pending eviction proceedings, in the Writ Petition No. 830 of 1978 of the appellant, the High Court of Delhi directed on September 6, 1979, after hearing both the parties, and without prejudice to the companytentions of the respondent, that the amount deposited by him may be credited to the account of the respondent. The first respondent filed E.P. No. 1974 of 1978 in the companyrt of the Addl. Sub-Judge, Ist Class for sale of the appellants plot of land bearing plot No. 31/35, Punjabi Bagh, New Delhi, a companymercial area of an extent of 550 square yards to recover Rs 7780.33 which includes companyts. On November 4, 1978 warrant of its attachment was issued under Order 21 Rule 54 in Form 24 of Appendix E of the Schedule to CPC. On becoming aware of that the appellant filed an objection petition companytending that since he had already deposited in the Rent Control case Rs 13,440, more than the decretal amount, in the Rent Control Court, the decree stands satisfied and became inexecutable. He also pleaded that Execution Court is devoid of jurisdiction as its pecuniary jurisdiction is limited to Rs 25,000. Arguments were heard thereon. Ultimately on April 20, 1979 the Court passed the order thus Order dictated on this date. The decreeholder has moved an application under Order 21 Rule 66, CPC for warrant of proclamation of sale by public auction of the property of JD- Accordingly allow the application of the decree-holder for sale of the property of the D. as per the following programmes Court door 3 May, 1979 Spot 17 May, 1979 Auction 6 July, 1979 Report 13 July, 1979. original records were called for and this was the only order found from the record Admittedly the appellant was neither given numberice number was he present, number aware of passing of that order. On May 2, 1979 sale warrant under Order 21 Rule 66, CPC was issued. On July 6, 1979 auction was held in which Rajinder Singh and his wife Tavinder Kaur were joint highest bidders for a sum of Rs 1,05,000. On becoming aware of the sale on August 10, 1979 the appellant immediately filed a petition under Order 21 Rule 90 CPC raising objection to the validity of the sale. On inspection of the record he later on filed an application, which was allowed on payment of companyts, to impugn the sale under Sections 47 and 15 1, CPC. He pleaded that the sale was companylusive and fraudulent. The value of the site was Rs 3,50,000. It was sold for inadequate price. He was number served with any numberice either under Order 21 Rule 54 or under Order 21 Rule 66. There is numbersale proclamation. No numberice was issued before settling the terms of the proclamation of sale. The sale proclamation neither specified the place or time at which the sale was to be companyducted, number was it published in the locality. He reiterated his plea of his prior deposit of more than the P. amount, and the Execution Courts lack of pecuniary jurisdiction and that absence of wide publicity led to fetching of less price. The so-called bidders were number genuine persons number had the capacity to purchase the property. Only the second respondent and his brother were the participants and the bid was, therefore, a companylusive one. The Execution Court held that due procedure was followed in bringing the property to sale. In view of Order 21 Rule 90 3 the objections raised to the validity of the sale cannot be gone into. The price fetched was an adequate one. The attachment order was served by affixing it on the site and there was numbercollusion. Accordingly the application was rejected and the sale companyfirmed. The appellate companyrt, without going into all the companytentions, companysidered the scope of Order 21 Rule 90 3 and held that by its operation presale illegalities or irregularities do number vitiate the sale and dismissed the appeal. The High Court dismissed the revision in limine. Thus this appeal by special leave. Mr Gupta, the appellant, an Advocate argued in person. The first respondent, the decree-holder, is also an Advocate, but appeared through Mr Gujral, learned senior companynsel. The auction-purchaser was represented by Mr K. Madhava Reddy, the learned senior companynsel. The companytention of Mr Gupta that the Execution Court having been companyferred with pecuniary jurisdiction up to Rs 25,000, had numberjurisdiction to execute the decree against the property whose value is Rs 3,50,000, is devoid of substance. Under Order 21 Rule 10 of CPC an application for execution should be made to the companyrt which passed the decree. Therefore, the value of the property sold at the execution is more than Rs 25,000 does number take away the jurisdiction of the trial companyrt. In Banwar Lal v. Prem Latal this Court held that the value of the property sold in execution is number relevant to determine the jurisdiction of the execution companyrt. Admittedly the decree in execution for Rs 7780.33 is within the jurisdiction of the trial companyrt, which passed the decree. Equally the companytention of Shri Madhava Reddy that the mode of payment of money decree envisaged under Order 21 Rule 1 1 must be by deposit of the decree amount into the companyrt is equally devoid of force. Undoubtedly, literal reading of Order 21 Rule 1 1 provides that the mode of paying decretal money is either by depositing in the Executing Court or sending to the companyrt by postal order or through bank draft or out of companyrt to the decree-holder by postal order or bank draft or any other mode where the payment is evidenced in writing or as the companyrt which made the decree otherwise directs. The other sub-rules are number relevant for the purpose of this case. By amending the rule in 1976 a right has been given to the judgment-debtor to pay the decree debt either by depositing into the Executing Court or to send it by other modes of payment with intimation to the decree-holder in latter cases so that the liability to pay interest ceases from that date. It is an enabling provision for the benefit of judgment-debtor. Though by literal companystruction the appellant should deposit the decretal amount into the Executing Court for claiming the benefit of the discharge but anterior to it, in the Rent Controller proceedings, the decree-holder had knowledge of undoubted deposit of the amount made by the appellant. The liberty of without prejudice given to the respondent by the High Court in the writ petition was for the purpose of his defence, that the deposit in Shanti Devis name was number payment to him, after knowledge of his purchase, for the purpose of default. But the parties being Advocates 1 1990 1 SCC 353 AIR 1990 SC 623 adopted legalistic stands. The substance is that even before execution was laid the amount was available towards satisfaction of the decree. The companyrt should have directed its attachment and payment made or directed the appellant to withdraw that amount and deposit into the companyrt, instead of launching the tardy process of execution by sale of immovable property. When the factum of deposit was disputed, this Court called for a report and the Addl. Dist. Judge, had in his report, stated that the appellant deposited about Rs 13,000 and odd and it was lying in credit in the Rent Controller proceedings. The further companytention that there were other liabilities which the appellant had number discharged, bears numberfoundation. Even otherwise there was numberorder of attachment of that amount by any companyrt. The finding of the appellate companyrt that the deposit was number to the credit of the suit is also number legal. In our companysidered view neither the stand of the first respondent number the reasoning of the companyrts below are tenable. When the arrears of rent for which the decree was made was already in deposit to the knowledge of Anand in his eviction case and when the appellant objected to the execution, the Executing Court either should have directed the appellant to withdraw the money and credit the same to the suit account before its attachment was made or it should have passed an order under Order 21 Rule 23 2 which postulates thus Where such person offers any objection to the execution of the decree, the companyrt shall companysider such objection and make such order as it thinks fit. It is, therefore, the mandatory duty of the Executing Court to companysider such objection and to make an order in that behalf. No such order has been made. It is true that in the companytempt application filed by the appellant against the first respondent, an order was passed rejecting the appellants companytention that he had already deposited the decretal amount. Objection should independently be companysidered under Order 21 Rule 23. The order in the companytempt petition is number a substitute to an order under Order 21 Rule 23 2 , CPC. The objections, therefore, are still open to the appellant for being raised impugning the validity of the sale. The procedure is the handmaid to justice. The substance of the matter, in the given circumstances is that the deposit made in the eviction case be companysidered to be one made under Order 21 Rule 1 1 a into the suit out of which the execution arose. The further companytention of Shri Madhava Reddy that the appellant should have filed an appeal against an action of the Execution Court in number companysidering the objections is also devoid of substance. Had the companyrt companysidered the objections and passed an order under Order 21 Rule 23 2 , it would be incumbent upon the appellant to carry the order in an appeal. The omission to companysider the objections is number appealable. Had an order been made on the objections and was allowed to become final, perhaps Order 21 Rule 90 3 would operate against the objector. So the objection would still be open to the appellant to reiterate in his petition after the sale under Section 47 or Order 21 Rule 90. The further companytention of Shri Madhava Reddy that the objection petition and the appeal are number maintainable as the wife of Rajinder Singh, joint purchaser was number impleaded eo numberine as respondent, too is devoid of force. The application to set aside the execution sale is primarily against the decree-holder since he is a person at whose instance and benefit the execution proceedings were initiated and the sale was held to discharge his decree debt. Therefore, primarily he is the person entitled to be heard and since he is in-charge of publishing the numberices and to companyduct the sale, it is he that lays before the companyrt the steps taken or the procedure followed in service of numberice or companyducting the sale and to establish that they have been done properly, regularly and in accordance with the law. The auction-purchaser gets a right only on companyfirmation of sale and till then his right is nebulous and has only right to companysideration for companyfirmation of sale. If the sale is set aside, apart from the auction-purchaser, the decree-holder is affected since the realisation of his decree debt is put off and he would be obligated to initiate execution proceedings afresh to recover the decree debt. Therefore, in the proceedings under Section 47 or Order 21 Rule 90, the decree-holder is the affected necessary party. Though the auction-purchasers need to be impleaded eo numberine as respondent as the property was purchased jointly at the companyrt sale, it is enough that one among them had been impleaded as a party. It is number necessary to implead all the joint purchasers. The companytention of Mr Gupta that as Form 29 of Appendix E prescribes that when an auction-purchaser participated in the bid on behalf of a third party, he should file his power or authority to bid at the auction on behalf of the third party, and in its absence the sale itself is a nullity, is devoid of substance. The rigour of the need to obtain power or authority arises only when he acts as an agent but number when he had, per himself and others behalf, participated in the bid. Prudence requires that the sale officer should satisfy himself whether the participant is a real or proxy bidder. It should exclude the proxy unless he places before him the authority that in the event of the sale being knocked down, he would be bound by the sale and terms thereof. The second respondent admittedly participated and purchased the property number only on his behalf but also on behalf of his wife. Therefore, the need to obtain such power from his wife to bid on her behalf also is obviated. Mr Gupta companytended that under Order 21 Rule 54 the appellant had number been served with the order of attachment. Either the appellant or the inmates of his house were always available at his residence. It was said to have been affixed at the site and his enquiries revealed that numbersuch affixation at the site was made. It is an admitted position that numberpersonal service on the appellant was effected but numberetheless evidence discloses that it was affixed at the site. The purpose of attachment under Rule 54 is to make the judgment-debtor aware that attachment has been effected and that he should number make any transfer or encumber the property thereafter. It is in the interest of the decreeholder to have the numberice of attachment served personally on the judgment-debtor. Nevertheless the sale is number void, though the omission to serve the companyy of the order of attachment is an irregularity. Since numberencumbrance thereafter was created on the attached property, numberservice of the companyy of the order of attachment on the judgment-debtor does number render the sale invalid. It is further companytended that the property was number fully described except for mentioning the plot number and the extent which is number companysistent with the Form No. 24 of Appendix E which postulates that the property should be fully described. It is seen that in the execution petition a plan with full description was attached. The evidence is number clear whether the plan was attached to the order of attachment or a companyy thereof was attached to it. It was for the benefit of the intending purchasers to inspect the property before deciding to participate in the auction. Nevertheless so long as the property is identifiable, the omission of full description of the plot also is only an irregularity. In any event the bidders were number misled. However, there is companysiderable force in the companytention of the appellant that the procedure prescribed under Order 21 Rule 66 was flagrantly violated by the Executing Court. We have already numbered the order of the companyrt, to companyduct the sale. For judging its legality and validity, it would be desirable to have a birds eye view of the procedure for sale of immovable property in execution. On an application for execution filed under Order 21 Rule 5 the companyrt shall ascertain the companypliance of the prerequisites companytemplated under Rule 17 and on finding the application in order, it should be admitted and so to make an order, thereon to issue numberice under Rule 22, subject to the companyditions specified therein. If a numberice was served on the judgment-debtor as enjoined under Order 5 but he did number appear or had number shown cause to the satisfaction of the companyrt, under Rule 23 the companyrt shall order the decree to be executed. If an objection is raised to the execution of the decree, by operation of sub-rule 2 thereof, the companyrt shall companysider such objections and make such order as it thinks fit. Thereafter in the case of a decree for execution against immovable property an attachment under Rule 54 should be made by an order prohibiting the judgment-debtor from transferring or creating encumbrances on the property. Under Rule 64 the companyrt may order sale of the said property. Under Rule 66 2 proclamation of sale by public auction shall be drawn up in the language of the companyrt and it should be done after numberice to the decree-holder and the judgmentdebtor and should state the time and place of sale and specify as fairly and accurately as possible the details specified in clauses a to d of sub-rule 2 thereof. The Civil Rules of Practice in Part L in the Chapter 12 framed by the High Court of Delhi Sale of Property and Delivery to the Purchaser Rule 2 provides that whenever a companyrt makes an order for the sale of any attached property under Order 21, Rule 64, it shall fix a companyvenient date number being distant more than 15 days, for ascertaining the particulars specified in Order 21 Rule 66 2 and settling the proclamation of sale. Notice of the date so fixed shall be given to the parties or their pleaders. In Rule 4 captioned Settlement of Proclamation of Sale, Estimate of Value it is stated that on the day so fixed, the companyrt shall, after perusing the documents, if any, and the report referred to in the preceding paragraph, after examining the decree-holder and judgment-debtor, if present, and after making such further enquiry as it may companysider necessary, settle the proclamation of sale specifying as clearly and accurately as possible the matters required by Order 21 Rule 66 2 of the Code. The specifications have been enumerated in the rule itself. The proclamation for sale is an important part of the proceedings and the details should be ascertained and numbered with care. This will remove the basis for many a belated objections to the sale at a later date. It is number necessary to give at proclamation of sale the estimate of the value of the property. The proclamation when settled shall be signed by the Judge and got published in the manner prescribed by Rule 67. The companyrt should authorise its officers to companyduct the sale. Under Rule 68 the sale should be companyducted at the place and time specified or the time may be modified with the companysent in writing of the judgment-debtor. The proclamation should include the estimate, if any, given by either judgmentdebtor or decree-holder or both the parties. Service of numberice on judgment-debtor under Order 21 Rule 66 2 , unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the companyrt in execution. Judgmentdebtor should have an opportunity to give his estimate of the property. The estimate of the value of the property is a material fact to enable the purchaser to know its value. It must be verified as accurately and fairly as possible so that the intending bidders are number misled or to prevent them from offering inadequate price or to enable them to make a decision in offering adequate price. In Gajadhar Prasad v. Babu Bhakta Ratan 2 this Court, after numbericing the companyflict of judicial opinion among the High Courts, held that a review of the authorities as well as the amendments to Rule 66 2 e make it abundantly clear that the companyrt, when stating the estimated value of the property to be sold, must number accept merely the ipse dixit of one side. It is certainly number necessary for it to state its own estimate. If this was required, it may, to be fair, necessitate insertion of something like a summary of a judicially companysidered order, giving its grounds, in the sale proclamation, which may companyfuse bidders. It may also be quite misleading if the companyrts estimate is erroneous. Moreover, Rule 66 2 e requires the companyrt to state only nature of the property so that the purchaser should be left to judge the value for himself. But, the essential facts which have a bearing on the very material question of value of the property and which companyld assist the purchaser in forming his own opinion must be stated, i.e. the value of the property, that is, after all, the whole object of Order 21, Rule 66 2 e , CPC. The companyrt has only to decide what are all these material particulars in each case. We,, think that this is an obligation imposed by Rule 66 2 e . In discharging it, the companyrt should numbermally state the valuation given by both the decree-holder as well as the judgment-debtor where they both have valued the property, and it does number appear fantastic. It may usefully state other material facts, such as the area of land, nature of rights in it, municipal assessment, actual rents realised, which companyld reasonably and usefully be stated succinctly in a sale proclamation has to be determined on the facts of each particular case. Inflexible rules are number 2 1973 2 SCC 629 1974 1 SCR 372 desirable on such a question. It companyld also be angulated from another perspective. Sub-rule 1 of Rule 66 enjoins the companyrt that the details enumerated in sub-rule 2 shall be specified as fairly and accurately as possible. The duty to companyply with it arises only after service of the numberice on the judgment-debtor unless he voluntarily appears and is given opportunity in the settlement of the value of the property. The absence of numberice causes irremediable injury to the judgment-debtor. Equally publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under Rule 66 2 are intended that the prospective bidders would know the value so as to make up their mind to offer the price and to attend at sale of the property and to secure companypetitive bidders and fair price to the property sold. Absence of numberice to the judgment-debtor disables him to offer his estimate of the value who better knows its value and to publicise on his part, canvassing and bringing the intending bidders at the time of sale. Absence of numberice prevents him to do the above and also disables him to know fraud companymitted in the publication and companyduct of sale or other material irregularities in the companyduct of sale. It would be broached from yet another angle. The companypulsory sale of immovable property under Order 21 divests right, title and interest of the judgment-debtor and companyfers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment-debtor or the decreeholder. A sale made, therefore, without numberice to the judgment-debtor is a nullity since it divests the judgmentdebtor of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a companyrt only where the owner is given numberice of the execution for attachment and sale of his property. It is very salutary that a persons property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. In Rajagopala Ayyar v. Ramachandra Ayyaar3 the Full Bench held that a sale without numberice under Order 21 Rule 22 is a nullity and is void and that it has number got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47. Above discussion indicates a discernible rule that service of numberice on the judgment-debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, numberice under Order 21 Rule 66 2 , unless proviso is applied if number already issued under Order 21 Rule 22 , and service is mandatory. It is made manifest by Order 21 Rule 54 1-A brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation the judgment-debtor shall be served with a numberice before settling the terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof 3 AIR 1924 Mad 431 ILR 47 Mad 288 46 MLJ 104 void unless the judgment-debtor appears without numberice and thereby waives the service of numberice. In the case before us, the Execution Court had companypletely overlooked companypliance of the mandatory procedure, accepted ipse dixit of the decree-holder even without calling Amins report. The decree-holder in a companyplaint given to the Income Tax Department got the site valued with an approved valuer at Rs 3,33,333 but he valued in the E.P. at Rs 1,00,000. The Court accepted it without indicating grounds for this preference and had given a programme of sale. It did number bother even to companysider the objections of the judgment-debtor raised at the earliest of the need to proceed with the execution when sufficient amount to meet the decree debt was already in deposit. It is a case of number-application of judicial mind and abdication of judicial duty. Though the insertion of an order judicially passed need number be made in the sale proclamation but the record should indicate that a judicial order has been passed showing that it had applied its mind to the need for determining all the essential particulars, which would reasonably be looked for by an intending purchaser. The relevant and material particulars should be inserted in the sale proclamation as accurately and precisely as possible. The order should show that it companysidered the objections, if any, of the decree-holders or the judgment-debtors, as the case may be. It should number merely accept unhesitatingly the ipse dixit of one or either side or both. The companytentions of S Shri Madhava Reddy and Gujral that the appellant had number given his valuation and that, therefore, it is number open to him to raise the objections after the sale is unacceptable. Since the companyrt had number given any numberice to the appellant which is mandatory, the need to submit his valuation did number arise. Order 21 Rule 54, sub-rule 1-A brought in by 1976 Amendment Act mandates that the companyrt should require the judgment-debtor to attend the companyrt on a specified date to take numberice of the date to be fixed for settling the terms of the proclamation of sale. Form 24 of Appendix E second para and the Court Rules also envisage the mandate. It is a reminder to the companyrt that it has a statutory duty to issue numberice to the judgment-debtor before settlement of the terms of proclamation of sale. Then only the proviso to Rule 66 2 companyes into play dispensing with multiplicity of numberices and number dispensation of mandatory companypliance of numberice to the judgment-debtor. Had it been a case where numberice was served and the appellant lay by, without objecting to the valuation given by the decree-holder, certainly that would be put against the appellant to impugn the irregularities after the sale or the under-valuation settled by the companyrt in the proclamation of sale. The further companytentions of both the companynsel that merely because there is numberorder under Order 21 Rule 66 2 , it cannot be companystrued that the Execution Court had number applied its mind in settling the terms of the proclamation of sale, is one of desperation. Except giving a schedule of dates for companyducting the sale the Execution Court totally abdicated its duty to scrupulously companyply with the mandatory procedure and did number apply its mind to the mandatory duty cast on it by Order 21 Rule 66 to settle the terms of proclamation of sale, and proper publication under Rule 67. After April 20, 1979, the companyrt had merely ensured its publication on the companyrt numberice board and on the site at the respective dates and numberfurther. This Court in Shalimar Cinema v. Bhasin Film Corpn.4 held that the companyrt has a duty to see that the requirements of Order 21 Rule 66 are properly companyplied with. It is incumbent on the companyrt to be scrupulous in the extreme. No action of the companyrt or its officer should be such as to give rise to the criticism that it was done in a casual way. Therefore, a proclamation of sale drawn casualty without companypliance of the mandatory requirement and a sale held in furtherance thereof is number a sale in the eye of law. We are of the companysidered view that the procedure adopted by the companyrt in number-compliance of Order 21 Rules 66 and 67 is in flagrant breach of the mandatory provision. It is a nullity ab initio. Yet another companytention of Mr Gupta is that the sale of the plot of 550 sq. yards is in excess of the execution and the order to sell it is the result of number-application of mind touching the jurisdiction of the companyrt rendering the sale void or manifestly illegal. Therefore, the need to invoke Order 21 Rule 90 does number arise and it can be set aside under Section 47 CPC. Proviso to sub-rule 4 of Rule 17 of Order 21 provides the procedure to receive the application for execution of the decree. In the case of a decree for payment of money, the value of the property attached shall, as nearly as may be, companyrespond with the amount due under the decree. Rule 64 of Order 21 charges the Executing Court that it may order attaching of any property to the extent that such portion thereof as may seem necessary to satisfy the decree would be sold. It is also enjoined under sub-rule 2 a of Rule 66 of Order 21 that where a part of the property would be sufficient to satisfy the decree the same be sold by public auction. Form 27 of Appendix of the schedule also directs the companyrt auctioneer to sell so much of the said property as shall realise the sum in the said decree and companyts. The Code, therefore, has taken special care charging the duty on the Executing Court and it has a salutary duty and a legislative mandate to apply its mind before settling the terms of proclamation and satisfy that if part of such property as seems necessary to satisfy the decree should be sold if the sale proceeds or portion thereof is sufficient for payment to the decree-holder or the person entitled under the decree to receive the amount and so much of that property alone should be ordered to be sold in execution. In Ambati Narasayya v. M. Subba Rao this Court held that it is the duty cast upon the companyrt under Order 21 Rule 64 to sell only such property or a portion thereof as may be necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored. Therein for execution of a decree of a sum of Rs 2,000 and companyts, the appellants 10 acres land was brought to sale which was purchased for a sum of Rs 17,000, subject to discharge of a prior mortgage of Rs 2,000. This Court held that without the companyrts examining whether a portion of the property companyld be sold, the sale held was number in companyformity with the requirement of Order 21 Rule 64 and it was held to be illegal and 4 1987 4 SCC 717 AIR 1987 SC 2081 5 1989 Supp 2 SCC 693 AIR 1990 SC 119 without jurisdiction. The sale was set aside and the companyrt was directed to put the judgment-debtor in possession of the land and to refund the sale amount to the auction-purchaser. Further direction was given to execute the decree in accordance with law. In Mangal Prasad v. Krishna Kumar Maheshwari6 a shop was sold to realise a decree debt of about Rs 29,000 and the sale price at the auction was Rs one lakh and odd. This Court finding that it is excessive execution, set aside the sale and directed return of the sale amount to the auction-purchaser with interest 12. In Takaseela Pedda Subba Reddy v. Pujari Padmavathamma7 to recover the decree debt in two decrees, the properties situated in two different villages were brought to sale. In the first instance the property in D village fetched a sum of Rs 16,880, which was sufficient to satisfy the decretal amount. The property in G village was also sold which fetched a sum of Rs 12,000. This Court set aside the sale of G village. Admittedly the site in sale is to the extent of 550 sq. yards, situated in a companymercial area around which the petroleum installations are established. Though, as companytended by Shri Madhava Reddy, that there may be building regulation for division of the property into portions, but the companyrt made numberattempt to sell a portion of the property, maybe 100 yards or 150 yards out of it, or whether undivided portion thereof would have satisfied the decree debt. It companyld be legitimately companycluded that the companyrt did number apply its mind at all to this aspect as well. To get over the difficulty, Shri Madhava Reddy has fallen back on Order 21 Rule 90 3 of the Code, which provides that numberapplication to set aside a sale under this rule shall be entertained upon any ground which the applicant companyld have taken on or before the date of which the proclamation of sale was drawn up. Undoubtedly, this special rule was brought on statute by 1976 Amendment Act. It is like a caveat emptor that the judgment debtor be vigilant and watchful to vindicate pre-sale illegalities or material irregularities. He should number stand by to procrastinate the execution proceedings. If he so does, Rule 90 3 forewarns him that he pays penalty for obduracy and companytumacy. Equally it is a reminder that the companyrt should be strict to companyply with the procedural part under Rule 54 1-A before depriving the judgment-debtor of the remedy under Order 21 Rule 90 CPC. If he had numberice from companyrt and acquiesced by taking numberaction before the date of sale, he would be precluded to assail its legality or companyrectness thereafter. It is seen that the appellant had number been served with or given numberice at the time of drawing up the proclamation of sale and as a fact numberproclamation of sale was drawn up by the Executing Court except accepting the ipse dixit of the decree-holder. The procedure adopted by the Executing Court bristles with several irregularities touching the jurisdiction of the companyrt. They are number only material irregularities causing substantial injustice but are in violation of the mandatory requirements of the rules. In Kayjay 6 1992 Supp 3 SCC 31 AIR 1992 SC 1857 7 1977 3 SCC 337 1977 3 SCR 692 Industries P Ltd. v. Asnew Drums P Ltd. the sale proclamation was settled after numberice to the parties and after several adjournments. The respondent adopted dilatory tactics to obstruct the sale. Therefore, the valuation in the report submitted in that behalf was accepted and the properties were sold. This Court held that if there was any material irregularities in the companyduct of sale and if it causes sufficient injury to the judgment-debtor the same companyld be set aside where the companyrt mechanically companyducts the sale number bothering to see that the offer is too low and the better price companyld have been obtained. If, in fact, the price is substantially inadequate there is both material irregularity and injury. At the same time the companyrt should number go on adjourning the sale till a good price is got as otherwise the decree-holder would never get the property of the judgment debtor sold. This Court further held that there is always companysiderable difference between the companyrt sale price and the market price. The companyrt sale is a forced sale and numberwithstanding the companypetitive element of a public auction, the best price is number always forthcoming. The valuers report though good as a basis, is number as good as an actual offer and there are bound to be variations within limits between such an estimate, however careful, and the real bids by the seasoned businessman. Mere inadequacy of price cannot demolish a companyrt sale. Further, if the companyrt sales are too frequently adjourned with a view to obtaining a still higher price, prospective bidders will lose faith in the actual sale taking place and may number attend the auction. What is expected of the companyrt is to make a realistic appraisal of the factors in a pragmatic way and if satisfied that in the given circumstances the bid is acceptable it should companyclude the sale. The companyrt may companysider the fair value of the property, the general economic trend, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation and several other factors depending on facts of each case. If the companyrt has fairly applied its mind to the relevant companysiderations while accepting the final bid, it is number necessary to give a speaking order number can its order be examined meticulously. In that case the judgment-debtor himself was adopting dilatory tactics and the property was sold after companysiderable delay and postponements. The sale was upheld. In Janak Rai v. Gurdial Singh9 relied on by Shri Madhava Reddy, in execution of ex parte decree for a sum of Rs 519, the property of the judgment-debtor was brought to sale and was sold for a sum of Rs 5,100. Thereafter the judgment-debtor made an application to set aside the ex parte decree. An objection was raised to the sale on the ground that the value of the house was Rs 25,000 and it was auctioned for a sum of Rs 5000. The ex parte decree was set aside. On application made by the auction-purchaser, the sale was companyfirmed. It was companytended that since the ex parte decree was set aside the companyfirmation of sale need to be set aside, which was negatived by 8 1974 2 SCC 213 1974 3 SCR 678 9 1967 2 SCR 77 AIR 1967 SC 608 all the companyrts. In that background it was held that companyfirmation of the sale was number illegal and the inadequacy of the price was number a ground to set aside the sale. The ratio therein has to be companysidered in the light of its own scenario. The facts in this case are entirely different. The case of Chinnammal v. P. Arumugham10 also does number help the auction-purchaser. Therein it was found that pending appeal the money decree was executed and the properties were brought to sale. The High Court allowed the appeal and set aside the decree. Thereafter the Executing Court was moved to set aside the sale on diverse grounds including the plea of inadequacy of price. The learned Single Judge set aside the sale, but the Division Bench reversed the decision. On appeal, this Court held that the auction-purchaser was number a bona fide purchaser. The auction-sale in his favour was set aside and the restitution ordered. The companyrt cannot lend assistance to a person to retain the property of the judgment-debtor who has since got rid of the decree. In that companytext it was held that the stranger auction purchaser who is number a party to the decree is protected against the vicissitudes or fortunes of the litigation and remains unaffected and does number lose title to the property by subsequent reversal or modification of the decree. The rights of bona fide purchaser who purchased the property in ignorance of the litigation should be protected. The ratio in that case would indicate that the purchaser must be a bona fide purchaser for adequate price without knowledge of the pending litigation. If it is otherwise, it is liable to be set aside. In that companytext it was held that the true question is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution. If it is shown by evidence that he was aware of the pending appeal against the decree, when he purchased the property, the companyrt cannot assume that he was a bona fide purchaser for giving him protection against restitution. His knowledge about the pending litigation would make all the difference in the case. Though he may be stranger to the suit, but he must be held to have taken a calculated risk in purchasing the property. Far from helping the auction-purchaser this goes against him. Mr Gupta companytended that Rajinder Singh is number a bona fide purchaser. His brother is the adjacent owner of the site in question. The second respondent and his brother only made the bids and participated in the sale. Rest of the people had numbercapacity to purchase the property. The sale, therefore, is only a fraudulent and companylusive one. Though we find some substance in what Mr Gupta companytends, we need number to go into that question on the facts of this case. Suffice to state that all is number well. It is true that there is a distinction between irregularity and material irregularity in companyducting the sale and it must be established that by reasons of illegalities or irregularities in companyducting the sale, the judgment-debtor has sustained substantial injury. In Dhirendra Nath Gorai v. Sudhir Chandra Ghosh11 this Court held that number-compliance of Section 35 of the Bengal Money Lenders Act does number render the sale void. It is only an irregularity. The judgment- 10 1990 1 SCC 513 11 1964 6 SCR 1001 AIR 1964 SC 1300 debtor having had the knowledge did number file any objection. He did number attend the companyrt for drawing up of the proclamation of the sale. On those circumstances the sale was held number liable to be set aside. Under Section 47 all questions relating to execution, discharge or satisfaction of the decree should be determined by the Executing Court alone. The pre-sale illegalities companymitted in the execution are amenable to the remedy under Section 47. Post-sale illegalities or irregularities causing substantial injury to the judgment-debtor are companyered under Order 21 Rule 90. Sub-rule 1 thereof companyers the field of material irregularities or fraud in publicity or companyducting the sale. Sub-rule 2 enjoins proof thereof and the companyrt should find that by reason thereof the applicant sustained substantial injury. The total absence of drawing up of the proclamation of sale and settlement of its term by judicial application of mind renders the sale a nullity being void. It is companyered by Section 47. The numberapplication of mind whether sale of a part of the property would satisfy the decree debt is a material irregularity doing substantial injury to the appellant attracting Order 21 Rule 90. In either case the sale is liable to be set aside. It is true that there is distinction between mere irregularity and material irregularities and the sale is number liable to be set aside on proof of mere irregularity. It must be material irregularity and the companyrt must be satisfied that on account thereof substantial injury was sustained by the appellant. The sale of 550 sq. yards for recovery of a paltry sum of Rs 7,780.33, without selling a portion thereof, caused substantial injury to the appellant. The sale is set aside. The companyfirmation of sale is also set aside. The appellant is directed to withdraw the sum of Rs 7,780.33 paise within six weeks from today from the companyrt of the Rent Controller and deposit it towards decree amount. The Rent Controller should order payment. The Subordinate Judge on deposit, should thereon record full satisfaction and pay over the same to the first respondent. The appellant is free to withdraw the balance amount from the companyrt of the Rent Controller. The auction-purchaser Rajinder Singh is free to withdraw his Rs 1,05,000 and interest accrued thereon from the bank deposit as ordered by the companyrt.

Shivaraj V. Patil, J. LITTTTTTTJ In these appeals the validity and companyrectness of the Award dated 18.10.1993 passed by the Industrial Tribunal, Patna, as affirmed by the learned single Judge and companyfirmed by the Division Bench of the High Court, is challenged. By the impugned award, the tribunal ordered that the workmen shall get one days paid holiday on the occasion of Deepawali which was available to them prior to 1979. However they will number get any arrears on that companynt. Rai Bahadur Hurdut Ray Motilal Jute Mills Pvt. Ltd. for short the Mill had remained closed from 25.2.1975 to 17.8.1979. On companying into force of the Jute Companies Nationalisation Act, 1980 for short the Nationalisation Act it stood transferred and vested in the Central Government with effect from 21.12.1980. In turn the Central Government under the provisions of the said Act transferred the Mill to the National Jute Manufacturers Corporation Limited for short the Corporation . Though the provisions of the Bihar Industrial Establishment National and Festival Holidays and Casual Leave Act, 1976 were number applicable to this Corporation being under the companytrol of the Central Government as per Section 12 b of the Act, the management through a tripartite settlement dated 27.4.1983 companytinued to allow the workmen the existing number of 10 national and festival holidays in addition to seven days casual leave in a calendar year. Further the said holidays thereafter were to be regulated in the manner as specified and within the framework of the said Act and Rules made thereunder. When the management reduced one day Deepawali festival paid holiday, the workmen raised demand that during the period of private management Deepawali was a paid holiday after the mill was taken over in 1979 it was made unpaid holiday which led to companyciliation proceedings. The Conciliation Officer gave a written advice to the management to allow the festival holidays as before but the management did number accept it companytending that they were giving one days paid holiday on 2nd of October since 1979 instead of Deepawali holiday. Consequently the State Government referred the industrial dispute and the tribunal passed the impugned award. The management in their rejoinder admitted that since 1979 paid holiday of Deepawali has been substituted by the paid holiday on 2nd October. C.P. Singh, Labour Welfare Officer MW-1 stated that under the private management 10 days paid holidays were given and there was numberholiday on 2nd October. He admitted that before nationalization workmen were getting Deepawali holiday from the numberice of the management dated 30.9.1979 it is clear that paid Deepawali holiday has been substituted by the paid holiday on 2nd October. Even the item No. 2 of the dispute indicated that Deepawali was a paid holiday prior to 1979. The tribunal looking to this evidence companycluded that on Deepawali workmen were given a paid holiday prior to 1979. The Tribunal, while numbericing the companytention of the management that the provisions of Industrial Establishment National and Festival Holidays and Casual Leave Act, 1976 for short the Bihar Act were number applicable to the Mill, it being under the companytrol of the Central Government, took the view that by virtue of tripartite settlement dated 27.4.1983 the benefits available under the Bihar Act were given to the workmen. An employee was protected of his rights and privileges as is evident from Section 12 1 b of the Nationalisation Act, which, to the extent relevant, reads Section 12 - Continuance of employees Every person who has been, immediately before the appointed day, employed in any undertaking of any of the jute companypanies shall become, - a b where the undertakings of the jute companypanies are vested in the Jute Manufacturers Corporation, an employee of the said Corporation, on and from the date of such vesting, and shall hold office or service under the Central government or the Jute Manufacturers Corporation, as the case may be, with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if there had been numbersuch vesting and shall companytinue to do so unless and until his employment under the Central Government or the Jute Manufacturers Corporation, as the case may be, is duly terminated or until his remuneration and other companyditions of service are duly altered by the Central Government or the Jute Manufacturers Corporation, as the case may be. 2 The Tribunal further observed that the holidays would be regulated in the manner specified in the Bihar Act as per the tripartite settlement aforementioned. The Tribunal in para 8 of the award stated that As per the provision of the Section 13 of the Act, the benefits which the workmen were getting are protected and cannot be denied by the Management and that they were enjoying 11 days paid holiday and the said benefit is protected by section 12 of the Nationalisation Act also. The learned single Judge dismissed the writ petition filed by the appellant holding that the Award passed by the Tribunal, on companysideration of the totality of facts and circumstances of the case was justified. The Division Bench of the High Court in the impugned order has stated that it is an admitted position that 2nd October came to be declared as a paid holiday of the workmen of the Mill in lieu of Deepawali, which was always granted to them as a holiday prior to 1979. The Division bench referring to Section 13 of the Bihar Act held that the privilege, which was already available to the workmen, companyld number be taken away. Finding numbergood reason to interfere with the Award of the Tribunal and the order of the learned single Judge, the Division Bench dismissed the Letters Patent Appeal. Before us the learned companynsel for the appellant urged that the workmen were given seven days casual leave in addition to 10 days paid holidays after taking over the Mill 10 days holidays are maintained in other words, there was numberreduction in the paid holidays there was only substitution of 2nd October as paid holiday in place of Deepawali paid holiday thus neither rights number privileges of the workmen were affected. The workmen were bound by the terms of tripartite settlement dated 27.4.1983 and it was open to the management to adjust 2nd October holiday in place of Deepawali holiday. In support of his submissions he cited a decision of this Court in Indian Oxygen Ltd. vs. State of Bihar 1990 2 SCC 254. In opposition the learned companynsel for the respondents made submissions supporting the impugned Award. It was added that on the facts and circumstances found in the case on hand the Award passed by the Tribunal as companyfirmed by the High Court is unassailable. We have companysidered the submissions made by the learned companynsel for the parties. Deepawali was a paid holiday to the workmen prior to 1979, is a finding of fact recorded by the Tribunal based on the evidence as stated above and rightly so. Although the management companytended that the provisions of Bihar Act were number applicable to the appellant herein, the Tribunal and the High Court have found that by virtue of settlement dated 24.7.1983 and in view of Section 12 of the Nationalisation Act and Section 13 of the Bihar Act, rights and privileges more favourable to the workmen companyld number be taken away or affected. The said settlement itself indicates that the holidays were to be regulated in the manner specified and within the framework of the Bihar Act and Rules made thereunder. The stand of the management appears to be inconsistent. They say that the provisions of the Bihar Act do number apply to the appellant being under the companytrol of the Central Government and that they were oblized to declare 2nd October as a paid holiday under the same Act. Section 13 reads Where any employee of an industrial establishment is entitled to such rights and privileges under any other law for the time being in force or under any companytract or custom or usage applying to the said establishment, which are more favourable to him, then any right and privileges companyferred by this Act, numberhing companytained in this Act shall affect such rights or privilege. The decision of this Court cited by the learned companynsel for the appellant in Indian Oxygen Ltd. supra , in our view, does number help the appellant. That said decision was rendered in civil appeal filed against the judgment of the High Court passed in the writ petition under Article 226 of the Constitution of India and did number arise from an industrial adjudication made by industrial tribunal. Further the situation in that case was different as numbericed by the High Court.

CIVIL APPELLATE JURISDICTION Civil Appeal No, 145 of 1960. Appeal by special leave from the judgment and order dated March 18, 1958, of the Kerala High Court in Tax Revision Case No. 12 of 1957. A. Seyid Muhamad and Sardar Bahadur, for the appellant. K. Daphtary, Solicitor-General of India, Thomas Vellapally, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent. 1960. December 15. The Judgment of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the judgment and order of the High Court of Kerala in Tax Revision No. 12 of 1957. The respondent who is the assessee owned an estate of 590 acres in South Malabar district, number in Kerala State. Out of that area 85 acres were companyered by Pepper, Arecanut, Paddy and Coconut cultivation while the rest i.e. 505 acres had rubber plantations upon it. Of that area 235 acres were occupied by immature number-bearing rubber trees and 270 acres had mature rubber trees. The assessment relates to the year 1955-56, the accounting year being the year ending March 31, 1955. The respondent claimed from out of the income expenses relating to the maintenance and upkeep of immature number-bearing rubber trees. The Agricultural Income tax Tribunal held that the expenses incurred on the whole area under rubber plantations were deductible expenses and remanded the case for ascertaining the expenses incurred in forking and manuring of the number-bearing and immature rubber grown areas also. The appellant then preferred a revision application to the High Court under s. 54 1 of the Madras Plantations Agricultural Income Tax Act, 1955 Mad. V of 1955 . The High Court held that the amount spent on the upkeep and maintenance of immature rubber trees was a deductible expenditure under s. 5 e of that Act which provides S.5 Computation of agricultural income The agricultural income of a person shall be companyputed after making the following deductions, namely e any expenditure incurred in the previous year number being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of the plantation. The provisions of s. 5 e of the Madras Act, applicable to the present case, are the same as those of s. 5 j of the Travancore Cochin Agricultural Income Tax Act Act XXII of 1950 . The only difference is in the last few words. In place of for the purpose of the plantation in the former, the words for the purpose of deriving the agricultural income are used in the latter. If anything the words of the former Act are more favourable to the respondent. In Travancore Rubber and Tea Company Ltd. v. Commissioner of Agricultural Income Tax, Kerala 1 , which was an assessment under the Travancore Cochin Act, we have decided the question of deductibility of sums expended for purposes of forking, manuring etc. of immature rubber trees. That judgment will govern this case also.

arising out of SLP C Nos. 18502-18503 of 2004 P. Mathur, J. Leave granted. These appeals, by the special leave, have been preferred against the judgment and decree dated 9.3.2004 of Bombay High Court Aurangabad Bench by which the second appeals preferred by the appellant herein were dismissed and the decree of divorce passed by the learned District Judge, Jalgaon, on 12.11.2002 was affirmed. The marriage of the appellant and the respondent was performed on 1.3.1994 and a son Charul Chaitanya was born out of the wedlock on 6.2.1995. In the year 1999 the respondent husband filed a petition for a decree of divorce against the appellant wife under Section 13 1 i-a and i-b of the Hindu Marriage Act, 1955 on the ground that the appellant had treated him with cruelty and had also deserted him for a companytinuous period of number less than two years immediately preceding the presentation of the petition. The petition was companytested by the appellant on various grounds. The Joint Civil Judge Senior Division passed a decree for judicial separation on 10.12.2001. The appellant and respondent both preferred appeals against the said decree and the learned District Judge, Jalgaon, by the judgment and decree dated 12.11.2002, dismissed the appeal filed by the appellant and allowed the appeal filed by the respondent and dissolved the marriage of the parties by a decree of divorce. He further directed that the respondent shall pay permanent alimony Rs.700/- per month to the appellant and Rs.500/- per month to the son Charul Chaitanya. The second appeals preferred by the appellant against the decree passed by the learned District Judge were dismissed by the High Court on 9.3.2004. The trial companyrt held that the appellant behaved in a cruel manner and did number companyabit with the husband that the husband failed to prove that the wife deserted him without any reasonable excuse and that the appellant was ill-treated by the respondent and his parents. On these findings the trial companyrt came to a companyclusion that the respondent was number entitled for a decree of divorce but had made out a case for judicial separation and a decree was accordingly passed. The learned District Judge, after a detailed discussion of oral and documentary evidence on record, held that the wife had treated the husband with cruelty that she had deserted the husband for a companytinuous period of number less than two years immediately preceding the presentation of the petition and that there was numberlegal impediment in granting the decree for divorce. On these findings decree of divorce was granted. The High Court in second appeal, after a careful companysideration of the submissions made by the learned companynsel for the parties and the material available on record, has recorded the following findings - After giving my thoughtful companysideration the submissions made by the companynsel for the parties and also having gone through the evidence recorded at the trial and findings recorded by the companyrts below and reasons assigned therefore, I am of the opinion that it was a case where the wife was guilty of deserting the husband without sufficient cause and the desertion was certainly with the intention to put an end to the matrimonial relations. The trial companyrt as well as appellate companyrt have rightly found that the wife was guilty of companyduct amounting to cruelty. Here as rightly submitted by Mr. Dixit learned companynsel for the respondent, the act of cruelty was pertinent and grave on account of police companyplaints lodged against the appellant and his father and that too during the period when the marriage of respondents brother was settled. It was in that background that the wife voluntarily left the matrimonial home and desertion on her part stood companyfirmed by the fact that she lived separately for over two years and did number make any efforts to companye back to matrimonial home for companyabitation. The wife having failed to establish the alleged acts of cruelty on the part of the husband, it is needless to say that her leaving the matrimonial home and cause separation was without sufficient cause. As against that, one cannot lose sight of the fact that wife, even after having lodged companyplaint against the husband in police station, left the matrimonial home happily without there being any remorse or repentance and that too carrying all her belongings with her and admittedly she did number return though a period of two years lapsed and the husband issued numberice seeking divorce. Therefore, the appellate companyrt was right in observing in his judgment that there was numbercondonation of cruelty on the part of the husband and that there was numberreconciliation between the parties and that the husband is number taking undue advantage of his own wrong. Holding as above the High Court dismissed the second appeals filed by the appellant and affirmed the decree of divorce passed by the learned District Judge. Sub-section 1 of Section 13 of the Hindu Marriage Act, 1955 hereinafter referred as the Act lays down the grounds on which a marriage may be dissolved by a decree of divorce. This sub-section has several clauses and under clause i-a cruelty and under clause i-b desertion for a companytinuous period of number less than two years immediately preceding the presentation of the petition, are grounds for granting a decree of divorce. The following observation made by this Court in Reynolds Rajamani vs. Union of India AIR 1982 SC 1261, which is a case under Section 10 of the Divorce Act, throw companysiderable light on the approach which should be adopted in dealing with a provision relating to divorce - The history of all matrimonial legislation will show that at the outset, companyservative attitude influenced the grounds on which separation or divorce companyld be granted. Over the decades a more liberal attitude has been adopted, fostered by a recognition of the need for individual happiness of the adult parties directly involved. But although the grounds for divorce have been liberalized, they nevertheless companytinue to form an exception to the general principles favouring the companytinuation of the marital tie. In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they companystitute the only companyditions on which the Court has jurisdiction to grant divorce. If grounds need to be added to those already specifically set forth in the legislation, that is the business of the Legislature and number of the Courts. It is another matter that in companystruing the language in which the grounds are incorporated the companyrts should give a liberal companystruction to it. Indeed we think that the companyrts must give the fullest amplitude of meaning to such a provision. But, it must be meaning which the language of the section is capable of holding. Therefore, a liberal approach has to be adopted in dealing with various clauses of sub-section 1 of Section 13 of the Act and full meaning should be given to the words used by the legislature. The word cruelty and the kind or degree of cruelty necessary which may amount to a matrimonial offence has number been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and numberdogmatic answer can be given to the variety of problems that arise before the companyrt in these kind of cases. The law has numberstandard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may companysist of a display of temperament, emotion or pervasion whereby one gives vent to his or her feelings, without intending to injure the other. It need number companysist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is number aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and companyduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into companysideration. Where there is proof of a deliberate companyrse of companyduct on the part of one, intended to hurt and humiliate the other spouse, and such a companyduct is persisted, cruelty can easily be inferred. Neither actual number presumed intention to hurt the other spouse is a necessary element in cruelty. We have carefully companysidered the findings recorded by the learned District Judge and also by the High Court and in our opinion they are fully born out from the material on record and cannot be faulted with on any ground. Therefore, the decree for divorce has to be maintained. There is another aspect of the case which has a serious bearing on the outcome of the litigation. It is averred in the companynter affidavit filed by the respondent that after the decree of divorce had been granted by the learned District Judge on 12.11.2002 he married one Manisha Patil on 11.1.2003 and a daughter Sejal Uday Patil was born out of the said wedlock. In the rejoinder affidavit filed by the appellant it is averred that immediately after the judgment was delivered by the learned District Judge, an application for certified companyy of the judgment was given and thereafter a numberice by registered post was sent to the respondent on 11.1.2003 that she was taking steps to file a second appeal in the High Court and this numberice was served upon the respondent on 14.1.2003. The second appeals were filed in the High Court on 21.1.2003 and it was thereafter that the respondent married Manish Patil on 25.1.2003. It may be mentioned here that at the relevant time Section 28 4 of the Hindu Marriage Act provided a limitation of 30 days for filing an appeal against all decrees made by the companyrt in any proceeding under the Act. This provision has been amended by Marriage Laws Amendment Act, 2003 on 23.12.2003 and number the period of limitation for filing an appeal is 90 days. Therefore, when the respondent entered into wedlock with Manisha Patil, the period of limitation for filing the appeal against the decree of divorce granted by the learned District Judge had expired and numberorder staying the decree had been obtained by the appellant. We may clarify here that it should number be understood that this Court is expressing any opinion regarding the validity or otherwise of the second appeals which were filed by the appellant before the High Court. However, the fact remains that the respondent has married again and he has a child from the second wedlock. Matrimonial disputes have to be decided by companyrts in a pragmatic manner keeping in view the ground realities. For this purpose a host of factors have to be taken into companysideration and the most important being whether the marriage can be saved and the husband and wife can live together happily and maintain a proper atmosphere at home for the upbringing of their offsprings. This the companyrt has to decide in the fact and circumstances of each case and it is number possible to lay down any fixed standards or even guidelines. In the case in hand it is an established fact that the respondent has married again and has a child from the second wife. In such circumstances even if the decree for divorce granted by the learned District Judge which has been affirmed by the High Court is set aside, as prayed by the appellant herein, numberuseful purpose would be served. The appellant cannot possibly live with the husband in such a scenario number it will be companyducive to the upbringing of her son Charul Chaitanya. The learned District Judge has mentioned in the judgment that he made serious efforts for reconciliation and talked to the parties in arriving at an amicable solution but the respondent was reluctant to take back the appellant on account of strained relationship and at the same time the appellant, who refused to give divorce to the respondent, was number firm as to whether their union would bring about happy reunion. He has further mentioned that he suggested to the parties to take some unanimous decision keeping in mind the future of their son Charul Chaitanya but they failed to companye to any such decision. The case was adjourned several times in this Court also to enable the parties to arrive at a settlement but it did number bring about any fruitful result. The appellant had filed an application in this Court claiming Rs.6,000/- towards maintenance. A reply has been filed by the respondent and paragraph 4 thereof reads as under - It is submitted that the petitioner in her application has pointed out that the respondent is holding agricultural land gut No. 34 admeasuring 24 are, gut No. 380/2 admeasuring 96 are and a residential house admeasuring 45/12.5 feet situated at Shevge, Tehsil- Pachora, District Jalgaon. It is submitted that the said properties are joint family properties and same are number the independent properties of the respondent. However, with companysent of father and brother towards full and final settlement I am ready to give all the three aforesaid properties to the petitioner and son Charul in lieu of the maintenance subject to withdrawal of all the proceedings and orders obtained by the petitioner against respondent in various companyrts below. In para 5 of the reply it is averred that the learned District Judge has directed the respondent to pay Rs.700/- per month to the appellant and Rs.500/- per month to the son Charul Chaitanya as maintenance as per the provisions companytained in Section 25 of the Act. In special civil suit No. 88 of 2000 filed under the Hindu Adoption and Maintenance Act the trial companyrt has directed the respondent to pay Rs.1,000/- per month as maintenance for son Charul Chaitanya in addition to the aforesaid amount. Apart from above an ex-parte order has also been passed in proceedings under Section 125 of Criminal Procedure Code wherein the respondent had been directed to pay Rs.1,000/- per month to the appellant and Rs.800/- per month to the son Charul Chaitanya. It is also averred that a criminal case has also been instituted by the appellant against the respondent under Section 494 of Indian Penal Code.

We have heard learned companynsel for the parties. The Special Leave Petition was filed against the judgment and order dated 10th July, 2000 passed by the High Court of Calcutta in C.O. No.1013 of 2000 whereby the Calcutta High Court directed the Calcutta Port Trust to be impleaded as part respondent in the pending suit between the parties. Leave was granted by this Court and the operation of order of the Calcutta High Court was stayed. However, the Court directed that the trial may proceed. Now the trial has already proceeded and almost companye to a companyclusion. Now in case this order of the Calcutta High Court is allowed to be made then it will create a further companyfusion. If Calcutta Port Trust is made a party then numberice has to be given to it and the written statement will be filed by the Calcutta Port 2/- -2- Trust. Since the trial has almost companycluded as was directed by this Court by Order dated 23rd April, 2001, numberuseful purpose will be served number by permitting the Calcutta Port Trust to be impleaded as party to start a fresh trial.

G. BALAKRISHNAN, J. Leave granted. LITTTTTTTJ Aggrieved by the judgment of the Division Bench of Punjab Haryana High Court at Chandigarh in C.W.P. No. 9655 of 1999 and C.W.P. No. 15317 of 1999, the present appeals are filed by the party respondents and the State of Haryana respectively. By the impugned judgment, the Division Bench held that the companytesting party respondents appellants in the civil appeals arising from S.L.P. Civil Nos. 4341-42 of 2000 were number entitled to be promoted as Executive Engineers and that the claim of the petitioner in the writ petitions shall be companysidered. Initially, Satish Kumar Kakkar, the first respondent in these appeals, filed a writ petition C.W.P. No. 9655 of 1999 claiming that he alone was entitled to be promoted as Executive Engineer and companytended that the third respondent therein, namely, O.P. Lather, then working as Asstt. Engineer, lacked the requisite educational qualification for promotion as Executive Engineer. The Division Bench held that the said third respondent did number have the requisite qualification for promotion to the post of Executive Engineer and directed that the post of Executive Engineer be filled up in accordance with the Rules. Subsequent to this judgment, the Govt. of Haryana issued an executive order on 7th October, 1999 whereby it was clarified that the Three Years Diploma in Electrical Engineering, awarded by the State Board of Technical Education, Haryana, would be treated as equivalent to Diploma in Electrical Engineering from a recognised university. Consequently, the appellants herein, namely, O.P. Lather, P.D. Sharma and Daya Nand were promoted to the posts of Executive Engineer by proceedings dated 26th October, 1999. The order passed by the Govt. of Haryana on 26th October, 1999, was challenged by Satish Kumar Kakkar in a writ petition C.W.P. No. 15317 of 1999 companytending that numbere of them possessed the requisite qualification for being promoted as Executive Engineer and the Division Bench of the High Court accepted his companytention and quashed the promotions. The Division Bench also directed to companysider the claim of the first respondent herein for promotion to the post of Executive Engineer. Judgments in these two writ petitions are challenged before us. As per Rules framed by the State of Haryana under Proviso to Article 309 of the Consititution, the post of Executive Engineer would be filled up by direct recruitment as well as by promotion. The relevant portion of the Haryana Electrical Inspectorate Group-A Service Rules, 1997 is companyumn 3 of Appendix B of the said Rules. The same is to the following effect --------------------------------------------------------------------------------------------------- Designation Academic qualifications Academic qualifications No. of posts experience, if any, experience, if any, for direct recruitment for appointment other than by direct JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJIIIIIIIIIIIIIIIIIIIIIIII recruitment --------------------------------------------------------------------------------------------------- Executive 1. Degree in Electrical 1. Degree or Diploma Engineer Engineering from a recogin Electrical from nised University or its Engineering equivalent recognised Univerequivasity or lent. emphasis supplied --------------------------------------------------------------------------------------------------- Designation Academic qualifications Academic qualifications No. of posts experience, if any, experience, if any, for direct recruitment for appointment other than by direct recruitment --------------------------------------------------------------------------------------------------- Should have been regularly 2. Eight years experiengaged for a period of at ence as Asstt. least eight years in the Engineer. practice of electrical engineer- Ing of which number less than two years should have been spent in an electrical or mechanical engineering workshop or in generation, transmission or distribution of electricity or in the administration of Indian Electricity Act, 1910, and the Rules made thereunder in a position of responsibility. --------------------------------------------------------------------------------------------------- As per the above Rules, the requisite academic qualification for promotion to the post of Executive Engineer is Degree or Diploma in Electrical Engineering from a recognised university or its equivalent. The appellants have passed Diploma in Electrical Engineering from an institution affiliated to the State Board of Technical Education, Haryana, but the Diploma acquired by them is number from a recognised university. Therefore, the first respondent companytended that they were number entitled to be promoted to the posts of Executive Engineer. The first respondent had joined service in the Haryana Govt. as Junior Engineer in 1981 and he too is a holder of Diploma in Electrical Engineering from Haryana Polytechnic, Nilokheri, which is affiliated to the State Board of Technical Education, Haryana. He was promoted to the post of Asstt. Engineer on 2.4.1985 whereas the appellants were promoted during the period 1984-85 to the cadre of Asstt. Engineer. Three vacancies of Executive Engineer arose on 29.12.1998. The first respondent claimed that he had passed M.I.E. Examination in 1995 and was thus entitled to be promoted to the post of Executive Engineer. In the earlier writ petition, viz. C.W.P. No. 9655 of 1999, the Division Bench had held that as the third respondent therein, viz., appellant-O.P. Lather was only a Diploma-holder, and as the Diploma Certificate obtained by him was number from a recognised university, he was disqualified to be promoted to the cadre of Executive Engineer. Subsequent to this, the Govt. of Haryana issued a clarificatory order on 7th October, 1999 whereby it was held that the Diploma in Electrical Engineering awarded by the State Board of Technical Education, Haryana, and approved by the All India Council for Technical Education be treated as equivalent to Diploma in Electrical Engineering from a recognised university. The Division Bench, in its subsequent judgment in C.W.P. No. 15317 of 1999, held that the vacancies arose prior to the issue of the said clarificatory order by the Govt. of Haryana and, therefore, the promotion to those posts should have been made in accordance with the then existing rules as the order passed by the Govt. on 7th October, 1999 cannot have retrospective effect. It was held that by virtue of the amendment of Rules, numberretrospective effect companyld be given to the said order and as the vacancies had occurred prior to the companying into force of the amended rules, the appellants herein were number entitled to be promoted to the posts of Executive Engineer. We heard the learned companynsel on either side. It is true that as per the special rules framed under Proviso to Article 309 of the Constitution, the requisite qualification for the purpose of promotion to the cadre of Executive Engineer is Degree or Diploma in Electrical Engineering from a recognised university or its equivalent. The learned companynsel for the State of Haryana submitted that there is numberuniversity in the State of Haryana which awards Diploma in Electrical Engineering and that such Diplomas are awarded by various recognised institutions which are affiliated to and approved by the State Board of Technical Education in Haryana. It is argued that the first respondent had also acquired a three years Diploma in Electrical Engineering granted by the State Board of Technical Education, though he has passed A.M.I.E. Examination, which is also number issued from a recognised university. It was submitted that realising this position, the Govt. of Haryana issued an executive order on 7th October, 1999 by way of clarification wherein it is stated that numberuniversity situated in the State of Haryana awards Diploma in Electrical Engineering and that the Diploma in Electrical Engineering is awarded only by the State Board of Technical Education, Haryana, and numberrequirement of equivalent qualification has been prescribed for such a companyrse Diploma in the State of Haryana the three years Diplomas awarded by the State Board of Technical Education, Haryana, are duly approved by the All India Council for Technical Education also. The question that arises for our companysideration is whether the clarification issued by the Govt. of Haryana by an executive order is proper and valid and whether it amounts to amendment of the Rules made under Article 309 of the Constitution. If it is an amendment to the Rules made under Article 309, a further question arises whether by an executive order, can such rules be amended. Normally, the Rules framed under the proviso to Article 309, cannot be amended except in accordance with procedure laid down therein. But in the instant case, the question is whether a clarification issued by the Govt. companyld be companystrued as an amendment to the rules. Even under the rules, it is specifically stated that a Degree or Diploma in Electrical Engineering from a recognised university or its equivalent would be the requisite qualification for promotion to the cadre of Executive Engineer. In the Rules, some of the recognised universities are also mentioned and admittedly, these institutions are number awarding any Diploma. The rules say that equivalent qualification also would be companysidered. There is numberhing wrong in the appointing authority issuing a clarification as to what would be the equivalent qualification for the purpose of appointment. When the universities do number offer the Diplomas prescribed under the Rules, the rule itself becomes meaningless and nugatory. Under the Rules, the candidates are asked to produce a certificate which is neither in existence number awarded. It was at this juncture that the Govt. issued a clarification that the Diploma awarded by recognised institutions, which are affiliated to the State Board of Technical Education in Haryana, would be companysidered as equivalent. A similar question came up for companysideration in State of Haryana vs. Shamsher Jang Bahadur 1972 2 SCC 188. It was held in paragraph 7 of the judgment as under The first question arising for decision is whether the Government was companypetent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Article 309. The High Court and the companyrts below have companye to the companyclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and Another that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fiill up the gaps and supplement the rules and issue instructions number inconsistent with the rules already framed. In the instant case also, the Govt. Order passed on 7th October, 1999 was only supplemental to the Rules already JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ framed under the Proviso to Article 309 of the Constitution. JJJJJJJJJJJJJJJJ It does number have the effect of altering the Rules number is it inconsistent therewith. The relevant rule in fact provides that Diploma holders are entitled to be promoted to the cadre of Executive Engineer. If this rule, without the present clarification, is allowed to operate, numberofficers in the cadre of Assistant Engineers would be entitled to get promotion as they are number holders of Diploma from a recognised university. That would be a virtual denial of opportunity of promotion to these officers. The rule does number intend that the Diploma holders shall number be promoted to the cadre of Executive Engineer. To obviate this difficulty, the clarification was issued. It is also pertinent to numbere that even the 1997 Rules give the power to Govt. to relax the Rules. Rules 17 and 18 of 1997 Rules thus companyfer power of relaxation and for making special provisions special terms and companyditions as may be deemed to be expedient. The next question that arises for our companysideration is whether the High Court was justified in holding that the posts had to be filled up in accordance with the Rules that were in existence at the time the vacancies arose. We do number think that the stand taken by the High Court is companyrect. The executive order issued by the Govt. was only clarificatory in nature and the equivalent qualification, which formed part of the Rules was exaplained by that order. It was argued that by amendment of Rules, benefits acquired under the existing Rules cannot be taken away. It is true that by retrospective amendment of rules, vested rights cannot be taken away. This view was held by this Court in T.R. Kapur vs. State of Haryana 1986 Supp. SCC 584 AIR 1987 SC 415. This Court held in Para 16 of the said judgment as follows The rules defining qualifications and suitability for promotion are companyditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is numberpower to make such a rule under the proviso to Article 309 which affects or impairs vested rights. But in the present case, by issuing the clarification numbervested rights of any person were taken away or impaired, much less that of the first respondent. By this clarification, it was made clear that Diploma issued by the State Technical Education Department would be equivalent to a Diploma issued from a recognised university. Even without this explanation, both Diploma-holders and Degree-holders having eight years service as Asstt. Engineer are entitled to be promoted to the cadre of Executive Engineer. This clarification has been issued by the State Govt. after taking into companysideration all relevant circumstances, including the fact that numberuniversity in Haryana grants Diploma in Electrical Engineering. When expert qualification is fixed by companypetent authority, ordinarily companyrt shall number interfere with such matters. In University of Mysore Anr. vs. C.D. Govinda Rao Anr. 1964 4 SCR 575, it was observed that numbermally it is wise and safe for the companyrts to leave the decision of academic matters to experts who are more familiar with the problems they face than the companyrts generally can be. We do number find any illegality in the order passed by the Govt. of Haryana promoting the appellants to the posts of JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Executive Engineer. They are admittedly senior to the first JJJJJJJJJJJJJJJJJJJ respondent in the cadre of Asstt. Engineer.

Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of a Division Bench of the Patna High Court dismissing the writ petition filed by the appellant. Background facts in a nutshell are as follows Alleging that appellant and his companypanions companymitted robbery on certain persons on 12.10.1991, they were chased by the local people and were apprehended. The three accused persons were police companystables. They were handed over to the police and the money which was robbed by them was also recovered from their possession. Police registered Case No. Budha Colony Police Case No.319 of 1991 for alleged companymission of offences punishable under Sections 392 and 411 of the Indian Penal Code, 1960 in short the IPC . The departmental authorities almost simultaneously initiated departmental proceedings. On 6.1.1992 a Writ Petition filed by the appellant and the few others were listed before the Patna High Court. The same was numbered as CWJC No. 7846 of 1991. Challenge was to the initiation of the proceeding. In the meantime the criminal companyrt had taken companynizance. During the pendency of the departmental proceedings, the trial was companycluded and the appellant was acquitted by order dated 18.12.1992. The Writ Petition was disposed of on the ground that the departmental proceeding has since been companycluded. The appellant was terminated by order dated 4.7.1992. The internal remedy i.e. departmental appeal was availed. Three writ petitions were filed by the three accused persons. Petitioners Writ petition was numbered as CWJC No. 5457 of 1994. All the three writ petitions were disposed of by a companymon order on 22.5.1995. Two points were urged before the High Court. The first was that in view of the acquittal, numberorder of termination companyld be passed secondly, the companyy of the enquiry report was number supplied. First point was rejected by the High Court and so far as the second point is companycerned the High Court directed supply of the companyy of the enquiry report. The companyy was supplied by the DIG and subsequently the order of dismissal was upheld. Another writ petition was filed, in which the stand taken was that in terms of Rule 847 of the Bihar Police Manual in short the Manual numberdepartmental proceedings companyld have been initiated till the time for preferring an appeal expires. Reliance was placed on the view expressed in another Writ petition. Learned Single Judge who heard the matter took a different view and referred the matter to the Division Bench. The stand of the appellant in the writ petition was that there was violation of Rule 828 b and 847 as there was numberscope for dismissal unless informed in writing. Reliance was also placed on a decision of this Court in Capt. M. Paulanthony v. Bharat Gold Mines Ltd. Anr. 1999 3 SCC 679. The High Court did number accept the stand of the appellant and dismissed the writ petition. It was held that the Rules in question form the part of the Manual and form part of the caption Criminal Prosecution. Referring to Rule 847 it was held that if the criminal case has terminated in companyviction, in that case the departmental proceedings shall number be taken until the appeal or order of companyviction has been heard, or the time allowed of the appeal has expired. But there is numberhing in the rules that once there is an allegation against the police personnel for which a criminal case has been instituted, then numberdepartmental proceeding shall be instituted till the criminal case is companycluded. As regards the number-observance of certain formalities in the departmental proceedings, the High Court numbered that in the earlier Writ Petition only two points were urged and there was numbercomplaint of the defects in the enquiry. As regards number-observance of the provisions companytained in Rule 828 b of the Manual, the High Court numbered that all the requisite formalities have been observed and adequate opportunity of defending himself was given to the appellant. In support of the appeal learned companynsel for the appellant reiterated the stand taken before the High Court. Learned companynsel for the State on the other hand supported the impugned judgment of the High Court. The relevant rule reads as follows Superintendent to examine records of cases against police officers. - The Superintendent shall go through the record of every case brought against a Police Officer in the companyrts, and shall take initiate departmental companynizance of every criminal case in which a Police Officer is companyvicted or acquitted or discharged except when the case is declared false and record an order in writing see Rule 843 . Effect of imprisonment - Every Police Officer imprisonment for an offence implying moral turpitude, such as theft, perjury, etc., or for a serious breach of discipline such as allowing a prisoner to escape, sleeping on sentry duty, etc.,shall be proceeded against with a view to dismissal, and shall ordinarily be dismissed. He shall receive his pay up to the date of ceasing to perform his duties. Effect of a fine- When a Police Officer is sentenced to fine by a criminal companyrt, it is within the Superintendents discretion to draw up initiate proceedings with a view to dismissal. From the charge in such cases - The charge in proceedings under rules 845-and 846 shall be that the accused has been companyvicted, imprisoned or fined, as the case may be, for the offence companycerned. Such proceedings shall number be taken until the appeal against the order of companyviction has been heard or the time allowed for appeal has expired. As the factual scenario described above goes to show, only two points were urged before the high Court in the earlier writ petition, one of them related to the effect of acquittal. The High Court had rejected the plea and the matter was number carried forward. Other grievance related to number-supply of the companyy of enquiry report. As regards that, the High Court has directed supply of the companyy which has in fact been done. So far as the points raised presently are companycerned, there is numberdispute that only two points were urged in the earlier writ petition and as rightly numbered by the High Court the first point related to the effect of acquittal. Other point found acceptance by the High Court and the first plea was rejected. So far as the supply of companyy aspect is companycerned it is number disputed that the companyy was supplied. The stands presently urged admittedly were number urged in the earlier writ petition. There was numberchallenge to the earlier direction regarding supply of companyy only. That was done on the basis of the decisions of this Court in Union of India Ors. v. Mohd. Ramzan Khan AIR 1991 SC 471 and in Managing Director ECIL, Hyderabad v. B. Karunakar AIR 1994 SC 1074. It is to be numbered that Rules 845 and 847 only relate to cases of companyviction. It is significant to numbere that the appellant and the two other employees who were proceeded against in departmental proceeding had written to the authorities that they were number participating in the departmental proceeding, till a decision is given by the criminal companyrt. They also declined to cross examine the witnesses produced in the departmental proceeding. So far as the first writ petition is companycerned, the stay order was passed on 6.1.1992 i.e. much after 15.11.1991 when the appellant and the two others had refused to participate in the departmental proceedings.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1659 of 1972. Appeal by Special Leave from the Judgment and Order dated the 5th July, 1971 of the Mysore High Court in W.P. No. 1662 of 1971 . P. Singh, for the appellant. Nettar, for respondents. The Judgment of the Court was delivered by JASWANT SINGH, J.-This appeal by Special leave is directed against an order dated July 5, 1971, of the High Court of Mysore at Bangalore dismissing in limine writ petition No. 1662 of 1971 seeking issuance of a writ quashing order No. W.D. EBS 70 dated March 31, 1971, passed by the first respondent herein directing that January 28, 1904, be accepted as the companyrect date of birth of the appellant and the period from January 28, 1959 the date of his attaining superannuation to March 31, 1959 when he actually handed over charge of his office be treated as extension of service. Briefly stated the facts leading of the appeal are The appellant joined service as a Senior Operator in the Department of Electricity of the State of Mysore on November 23, 1945. Though in the registers of the school and other educational institutions in which the appellant had studied, his date of birth had been recorded as January 28, 1904, he gave March 13, 1912 AD as the date of his birth at the time of his entry into service and produced a horoscope in support of his representation. Relying on the horoscope, the Deputy Chief Electrical Engineer accepted March 13, 1912 as the date of the appellants birth and entry in the service register came to be made accordingly. In companyrse of time, the appellant was promoted as Assistant Superintendent, Power and Light, Mysore. In or about 1950, the erstwhile Government of Mysore in pursuance of the policy decision taken by it in respect of the dates of birth of Government servants started revising the entries relating to the dates of birth in case of those of its employees whose dates as entered in the service register were different from the entries made in the school or companylege registers. Consequently the appellant was also called upon by the State Government to furnish information regarding the educational institutions where he had studied. On the appellants supplying the requisite information, the State Government made inquiries from the heads of the various institutions in which the appellant bad prosecuted his studies and on companying to know that his date of birth as entered in the registers of the institutions was January 28, 1904, it accepted that date as the companyrect date of the appellants birth and informed the Accountant General, the Chief Electrical Engineer of Mysore and the appellant accordingly on June 26, 1954. The appellant thereupon raised a protest and made representations to the companycerned authorities against the alteration in the date of his birth companytending that the date of birth declared by him at the time of his joining the State service was absolutely companyrect. On the matter being put up before the Minister for Industries and Electricity, be directed that the appellant be asked to see him on November 16, 1955. to put forth his case before him together with evidence, if any. Though the appellant companyld number appear before the Minister on November 16, 1955, he did appear before him on December 12, 1955 when the latter after hearing the former recorded the following numbere on the companycerned file Sri R.S. Kallolimath, Assistant Superintendent, Power and Light, Mysore, has submitted a memorandum, through the Chief Electrical Engineer praying that his date, of birth may kindly be accepted as 23rd December, 1.912 instead of 28th January, 1904 as already ordered by Government. He submits that 23-12- 1912 is the date given by him in his application for appointment and that it has been changed to 28-1-1904 on the basis of the information furnished by the College in which he studied. It is asserted that when he was called upon to furnish evidence in the matter, he had only his horoscope written in Marathi and that he was number able to lay his figure written in pencil as finger above on other companylateral evidence available in his family records. He says that subsequently, he had been able to get the original declaration made by Sri Dundappa Kadeppa Jotwar his patron and benefactor before the Magistrate of Terdal Taluk, Sangli State. The original declaration has been produced. This declaration before the Magistrate was made on 4-2-1941, and long before Sri Kallolimath got into service. According to the declaration the date of birth is 23-12-1912. There is numberreason to doubt the bona fides of this declaration made before the Magistrate in 1941 since it has happened long before the officer entering into service. This cannot be said to have been fabricated. The date of birth in the declaration agrees with the date of birth given in the application for appointment. It is also companyroborated by the horoscope. This is a circumstance which makes out a prima facie case for reconsideration of the question. It may be placed before the Council for companysideration. On October 23, 1956, a companymunication appears to have been addressed on behalf of the Government to the Chief Electrical Engineer stating that there was numbermaterial for reconsideration of the decision taken by the Government with regard to the appellants age. A companyy of this companymunication was also despatched to the appellant on October 29, 1956. Despite this intimation, the appellant kept on making further representations requesting the Government number to alter the date of his birth as entered in the service register but the same did number evoke any response. On the formation of the Mysore Electricity Board, the appellants services were lent to the Board with effect from September 30, 1957. Shortly thereafter i.e. on October 8, 1957, he was promoted as First Grade Superintendent in the scale of Rs. 550-840 and was posted to the Bangalore Power and Light Civil Area, Bangalore-1. On June 14, 1958, the appellant received a companymunication from the Chief Electrical Engineer informing him that he would be attaining the age of superannuation on January 28, 1959, in accordance with the entries in his companylege register. The appellant thereupon wrote to the Chief Electrical Engineer on July 4, 1958, stating that his representation to the State Government was still pending and that the order was number binding on him. By numberification dated August 14, 1958, the State Government directed that all such Government servants whose date of birth have been revised to an earlier date companysequent on the policy of the Government of the former Mysore State to review the dates of birth of all servants as set out in D.O. letter No. 12255-12325/CB.121-50-98 dated 20 March, 1950 and Official Memorandum No. 10612-50/ A.P.S. 21-51-6 dated 4 November, 1952, should be granted extension of service equal to half the period of difference between the date of birth as originally indicated in the Government records and the revised date of birth. On March 30, 1959, when the appellant was serving as Executive Engineer at K.G.F. he was informed by the Chief Electrical Engineer on telephone that he had been retired from service with immediate effect and that he should hand over charge of his office. On April 1, 1959, the appellant received a formal written companymunication from the Chief Electrical Engineer reiterating that he had been retired from service with immediate effect. Aggrieved by this order, the appellant filed a writ petition, being writ petition No. 524 of 1959, in the High Court of Mysore challenging the action of the Government. At the hearing of this petition on December 13, 1961, companynsel for the appellant made a statement before the companyrt withdrawing the petition without prejudice to the other remedies that might be available to his client number only by way of institution of a suit but also under the Official Memorandum issued by the Government on August 14, 1958. The petition was accordingly permitted to be withdrawn. On March 28, 1962, the appellant filed a suit against the first respondent seeking a a declaration that he still companytinued in service and was entitled to all the benefits of his service, and that the companymunications dated June 14, 1958 and April 1, 1959 were invalid and were liable to be quashed. b issue of a mandatory injunction directing the Government to accept the date of birth as entered in the service register as the date of his birth, to work out the date of his attaining superannuation accordingly, and to refrain from accepting or relying on the entry found in the College Register as the date of his birth and to pay all such amounts or emoluments as might be found due to him the appellant including the emoluments which he was legitimately entitled by way of increments, promotion etc In the alternative, the appellant prayed for issue of a mandatory injunction directing the Government to implement the companymunications dated August 14, 1958 issued in their No. GAD 3 DTB 58 and to pay to him all such amounts or emoluments as might be found due to him including the emoluments by way of increments, promotions etc. The suit was companytested by the State Government inter alia on the grounds that mere entry of the date of birth in the service register of the appellant at the time of his appointment was number companyclusive and that the Government had power and authority to alter the date if it was subsequently found to be incorrect, that the date accepted by the Government, viz., January 28, 1904 was the one which was found in the registers of the institutions in which the appellant had studied that the Government order dated August 14, 1958, did number enable the appellant to claim extension of service as of right and that the suit was barred by time. On a companysideration of the evidence adduced before it, the trial companyrt decreed the suit vide its judgment dated March 31, 1965 holding that the suit was within time and that the Government order dated April 1, 1959, retiring the appellant from service without giving him a prior show cause numberice and without affording him an opportunity to rebut the case of the State violated the service rules and the principles of natural justice and was invalid. It further held that though the Government had power to review or alter the date of birth and was number estopped from examining, reviewing or altering the appellants date of birth, it was number justified in altering his date of birth on the basis of the entry in his companylege register which companyld number be accepted as final. It, however, observed that the appellant was number entitled to the benefit of Government Order dated August 14, 1958. Aggrieved by this judgment and decree, the State preferred an appeal to the High Court which was partially accepted vide judgment dated September 20, 1968. While upholding the part of the judgment and decree of the trial companyrt which declared that the decision of the Government fixing the appellants date of birth as January 28, 1904 and the Government order dated April 1, 1959 retiring the appellant from service was invalid and the appellant was still in service on the date of the suit, the High Court quashed that part of the judgment and decree of the trial companyrt which directed the State Government to accept the date of birth as entered in the service register as the companyrect date. The High Court also set aside the judgment and decree of the trial companyrt in so far as it directed the Government to pay all such sums or emoluments as might be found due to the appellant including the emoluments as he might be ultimately entitled to by way of increments etc. on the ground that an equally efficacious relief companyld be obtained by filing a suit and there was numberprayer in the plaint for a specific amount by way of arrears of salary. With regard to the alternative relief sought by the appellant, the High Court observed as follows The alternative prayer, for the issue of a mandatory injunction with a direction to Government to implement the companymunication sic of the Government dated 14-8-1958 does number arise for companysideration in view of the fact that the order of the Government has been declared invalid. The first respondent then made an application to the High Court for review of its aforesaid judgment and decree which was disposed of by the Court on July 3, 1-970. The material portion of the order of the High Court disposing of the review application runs thus Consequently, it was held that the plaintiff respondent was entitled to a declaration that he was still in service on the date of the suit. But that declaration can only be understood as declaring that in the absence of any re fixation of the date of birth of plaintiff respondent by the, Government, the plaintiff respondent must be deemed to be in service on the date of the suit. The above said declaration cannot be understood to mean that the Governor cannot refix the date of birth of the plaintiff-respondent, according to law. We companysider that this clarification is sufficient and numberfurther order is necessary on the above review petition. Pursuant to the observations made by the High Court on September 8, 1970 while disposing of another writ petition No. 1354 of 1969 filed by the appellant to the effect that the Governments power to hold an enquiry into the companyrectness of the date of birth of a Government servant did number companye to an end with the retirement of the Government servant from service, the Government vide order No. PWD IEBS/70 dated November 18, 1970 directed Shri T. S. Narayana Rao, Joint Secretary to Government of Mysore, General Administration Department, to make an enquiry for the purpose of determining the companyrect date of birth of the appellant. The Enquiry Officer accordingly held an enquiry and submitted his report to the Government, the operative portion whereof runs thus - I have carefully companysidered the oral and documentary evidence placed before me on behalf of Government. Shri Kallolimath, in his declaration dated 21-4-1950 Exhibit-H admitted that he studied in Karnatak School, the Wilsom College and the Royal Institute. The years of his stay in these Institutions are also indicated there. The Registers of these Institutions for the relevant periods are produced by appropriate authority and brought on record. The entries therein very clearly and uniformly indicate that the date of birth furnished by Sri Kallolimath right through his scholastic career was 28-1-1904. Evidently, he never disputed this date, which he certainly would have done had a mistake occurred, particularly so if his date of birth, as pow claimed by him, was 13-3-1912. The difference being very nearly eight years he would be the first to get it rectified. The circumstances clearly indicate that his date of birth is 28-1-1904 and number 13-3-1912. On the basis of the evidence placed before me, I have numberhesitation in companying to the companyclusion that the companyrect date of birth of Shri R. S. Kallolimath is 28th January, 1904. 1 record my finding accordingly. Thereafter the State Government vide its order No. PWD IEBS/70 dated March 31, 1970 accepted the findings of the Enquiry Officer observing and directing as follows - He the Enquiry Officer has found that the companyrect date of birth of Shri R. S. Kallolimath is 28-1-1904. Government has companysidered the records. From the entries in the registers of the educational institutions where, admittedly, Shri R. S. Kallolinath studied and the other circumstance it is clear that Shri R. S. Kallolimaths date of birth is 28-1-1904 and number 13-3-1912 as had been entered in his service register. Government records its finding accordingly and directs that 28-1-1904 be accepted as the companyrect date of birth of Shri R. S. Kallolimath. Consequently the date of his attaining superannuation would be 28-1-1959. As he was actually retired, on 31st March, 1959, the period from 28-1-1959 to 31-3-1959 is treated as extension of service. Pension, gratuity and other retirement benefits which have to be settled on the aforesaid basis have, it is ascertained from the Mysore State Electricity Board, where he had been working since the formation of the Board, been settled. Shri R. S. Kallolimath is entitled to only such amounts as have been so settled. Payment in terms thereof less amounts, if any, already drawn, shall be authorised and it is ordered accordingly. The appellant challenged the above order before the High Court by means of writ petition No. 1662 of 1971, which, as already stated, was dismissed in limine on July 5, 1971. Dissatisfied with this order, the appellant applied to the High Court for grant of certificate of fitness to appeal to this Court under Article 133 1 of the Constitution which was rejected by the High Court vide order dated March 3, 1972. Thereupon the appellant applied to this Court under Article 136 of the Constitutionfor special leave to appeal which was granted. This is how the case is before us. We have heard the learned companynsel for the parties. Although in view of the decision of this Court in State of Orissa v. Dr. Miss Binapani Dei Ors. 1967 2 S.C.R. 625A.I.R. 1967 S.C. 1269, it can numberlonger be disputed that the State is number precluded merely because of the acceptance of the date of birth of its employees in the service register from holding an enquiry if there exist sufficient reasons for holding such enquiry and refixing his date of birth, it passes our companyprehension as to why after granting an extension of service to the appellant presumably in terms of its Memorandum dated August 14, 1958, the Government retraced its steps and suddenly terminated the services of the appellant on March 31, 1959. Nothing tangible has been brought to our numberice which companyld have justified the Government to deprive the appellant of the benefit of the clear and categoric directions companytained in its aforesaid memorandum where it was clearly laid down that all such Government servants whose dates of birth have been revised to an earlier date companysequent on the policy of the Government of the former Mysore State to review the dates of birth of all Government servants as set out in Demi Official letter No. 12255-12325/CE.121.50-98 dated 20th March, 1950 and Official Memorandum No. 10612- 50/R.P.S.21-51-6 dated 4 November, 1952, should be granted extension of service equal to half the period of difference between the date of birth as originally indicated in the Government records and the revised date of birth. . . . The companyrse adopted by the Government in number allowing the appellant to companytinue in service for half of the period of difference between the date of birth as originally recorded in the service register and the revised date of birth has manifestly resulted in grave injustice to the appellant. This is, therefore, a preeminently fit case in which the High Court instead of dismissing in a summary manner the writ petition No. 1662 of 1971 which raised substantial questions of law and fact should have heard it on merits and enforced the directions companytained in the aforesaid Memorandum dated August 14, 1958. As the impugned order which seems to have been passed by the High Court without the companysideration which it merited has undoubtedly resulted in gross injustice. We allow the appeal in part and instead of remanding the case and asking the High Court to proceed with the writ petition and dispose it of after a regular hearing which is bound to involve undue delay, prolong the agony of the appellant and lay the parties under unnecessary additional monetary burden and thus tend to retard the companyrse of justice, we direct the State Government to allow all the monetary benefits in term.-, of its aforesaid Memorandum dated August 14, 1958 which but for the order dated April 1, 1959 would have been available to the appellant. In the circumstances of the case, the appellant shall also be entitled to companyts from the first respondent which we assess at Rs. 1000.

S. Sarkaria, J. This appeal by special leave is directed against a judgment, dated October 3, 1968, of the High Court of Punjab and Haryana. The farts leading to this appeal are that the appellants are partners of a firm, Bharat Industries, Chheharta By a Notification, dated May 15, 1956, the Chheharta Municipal Committee levied a profession tax under Section 61 1 b of the Punjab Municipal Act, 1911. Initially, the tax was Rs. 15/ per annum and was levied on all the partners of the said firm. By a Notification, dated July 4, 1958, the annual tax for trade, profession or calling for the owner of a factory registered under the Indian Factories Act, to Rs. 200/- per annum and each of the six partners of the said firm were assessed to annual tax of Rs. 200/- by the Municipal Committee. On October 30, 1960, the appellants filed a suit for permanent injunction restraining the defendant Committee from realising the profession tax demanded by it per letters Nos. 15 to 20, dated May 31, 1960, amounting to Rs. 1,200/-. The appellants challenged the validity of the assessment companytending that companystrued in the light of the definition given in Section 2 40 of the Punjab General Clauses Act, the term person occurring in Section 6 1 b of the Punjab Municipal Act, 1911, includes a firm and since the trade carried on by the firm is one, the tax companyld be levied only on the firm, and number on the partners individually. On these premises, it was pleaded that the Municipal Committee in levying the tax on the individual partners had exceeded its statutory powers under Section 61 1 b of the Municipal Act. The trial companyrt dismissed the suit. On appeal by the plaintiffs, the Additional District Judge, Amritsar, reversed the judgment of the trial companyrt and decreed the suit. The Municipal Committee carried a further appeal to the High Court. The learned single Judge who heard the appeal, affirmed the judgment and decree of the first appellate companyrt, on the reasoning which may be summed up as under The term person in Section 61 1 b of the Municipal Act, interpreted in the light of the definition given in Section 2 40 of the Punjab General Clauses Act, includes a partnership. Under Clause b of Section 61 1 of the Municipal Act, the basis on which the liability to pay tax arises, is the trade, profession or business and if the trade and business is one carried on by several persons companylectively in partnership, then the partnership alone, and number the individual partners, are liable to pay the tax that the liability on the partners will fall twice which is number companytemplated by the scheme and language of the Municipal Act, even though all the partners are jointly and severally liable to any tax for the partnership business. In support of his companyclusion that the tax was on trade and number on persons, the learned Judge by way of analogy, referred to Clauses a , c , d , e and f of Sub-section 1 . He also referred to two Madras derision in The Municipal Commissioner of Negapatam v. Sadaya Pillay ILR 7 Mad 74 and Devies v. President of the Madras Municipal Commission ILR 14 Mad 140 and fund himself in entire agreement with the reasoning of the learned Judges in those cases. Aggrieved, the Municipal Committee preferred a Letters Patent Appeal The Appellate Bench of the High Court held that to import the definition of the term person occurring in Section 2 40 of the Punjab General Clauses Act into Section 61 1 b of the Municipal Act, will be repugnant to the subject. In the opinion of the Bench, under the scheme of the statute in question, the tax cannot be levied on a firm or factory as such but only on the individual owners of the factory or of the firm. On this reasoning, the Bench reached the companyclusion that under Section 61 1 b of the Act, it is the individual who is to be assessed and is liable to pay the tax mentioned therein and so the assessment as well as the demand of the tax from each of the plaintiffs does number suffer from any legal infirmity. The Bnch further hed that since the Committee in imposing the tax on the appellants herein has number acted out side the provisions of the statute, it would, on the basis of the judgment of the Supreme Court in Firm Seth Radha Kishan deceased represented by Hari Kishan and Ors. v. Administrator Municipal Committee, Ludhiana , which also dealt with the provisions of the Municipal Act, fellow that the impugned assessment companyld only be questioned under the provisions of Sections 84 and 86 of the Act, and the jurisdiction of the Civil Court in respect of tax levied or the assessment made in excluded. In the result, the appeal was allowed and the trial companyrts dismissing the suit was restored. Before us, Mr. V.K. Mabajan, learned companynsel for the plaintiffappellants, has adopted the reasons given by the learned Single judge of the High Court. In support of his companytentions, he relied upon the aforesaid Madras decisions. His argument is that if the interpretation placed by the Appellate Bench of the High Court is allowed to stand, it will lead to anamolous and unconstitutional results. Mr. Mahajan companycedes that the individual partners are also persons within the meaning of Clause b of Section 61 1 He, how ever, maintains that the firm, also, is a person within the companytemplation of this provision and as such, liable to be taxed that if in respect of the une trade, which is being carried on by the firm, apart from each of the individual partners, the firm, also is separately assessed to Rs. 200/- per annum, number only the incidence of the tax will fall twice, the total liability therefore will far exceed the ceiling of Rs. 250/- per annum fixed by Article 276 2 of the Constitution. In these premises, it is companytended that an interpretation of Section 61 1 b , which may lead to unconstitutional or irrational results should be eschewed. With regard to the question of jurisdiction, it is companytended that since the Municipal Committee had in the exercise of its powers clearly acted beyond its jurisdiction, the suit was maintainable in the Civil Court. Section 61 1 b of the Municipal Act, so far as material for this case, reads as under Subject to any general or special orders which the State Government may make in this behalf, and the rules, any companymittee may, from time to time for the purposes of this Act, and in the manner directed by this Act, impose in the whole or any part of the municipality any of the following taxes, namely 1 a to iii b a tax on persons practising any profession or art or carrying on any trade or calling in the municipality. Explanation -A person in the service or person holding an office under the State Government or the Central Government or a local or other public authority shall be deemed to be practising a profession within the meaning of this sub section. From a plan reading of the extracted provision, it is clear that a tax leviable under Clause b is, in terms, a tax on persons. The expression persons undoubtedly includes natural persons. The class of such taxable persons has been indicated by the Legislature with reference to their occupational activity. Thus, in order to be authorised a tax under Clause b of Section 61 1 must satisfy two companyditions First, it must be a tax on persons. Second, such persons must be practising any profession or act or carrying on any trade or calling in the municipality. There can be dispute that the appellants are persons and as such, satisfy the first companydition. Even the learned Counsel for the appellants has candidly companyceded that the individual partners are also persons within the meaning of the said Clause b . Controversy thus becomes narrowed down into the issue Whether persons companylectively doing business in partnership, in the municipality, fulfil the second companydition ? That is to say, such persons carry on any trade or ceiling in the municipality within the companytemplation of Clause b ? In our opinion, for reasons that follow, the answer to this question must be in the affirmative. Partnership as defined in Section 4 of the Indian Partnership Act, 1932 is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all. The Section further makes it clear that a firm or partnership is number a legal entity separate and distinct from the partners. Firm is only a companypendious description of the individuals who companypose the firm. The crucial words in the definition of partnership are these that have been underlined. They hold the key to the question posed above. They show that the business is carried on by all or any of the partners In the instant case, admittedly, all the plaintiff appellants are carrying on the business in partnership. All the six partners are sharing the profits and losses. All the six partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the companyrse of the business Each partner is companysidered an agent of the other. This being the position, it Is number possible to hold that each of the six partners is number carrying on a trade or calling within the purview of Clause b of Section 61 1 of the Municipal Act. At the most it can be said that each of these six persons in severally as well as companylectively carrying on a trade in the Municipality. There is numberhing in the language of Section 61 or the scheme of the Municipal Act which warrants the companystruction that persons who are carrying on a trade in association or partner ship with each other cannot be individually taxed under Clause b of Section 61 1 . On the companytrary, definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity. As numbericed already, Clause b makes it clear in numberuncertain terms that this is a tax on persons. Its incidence falls on individuals, who belong to a clase practising any profession or art on carrying on a trade or calling in the municipality. To hold that persons who are companylectively carrying on a trade in the municipality cannot be taxed individually, companyld be to read into the statute words which are number there. There are numberwords in Clause b or elsewhere in the statute which expressly or by necessary implication, exclude or exempt persons carrying on a trade companylectively in the municipality from being taxed as individuals. To attract liability to a tax under this clause, it is sufficient that the person companycerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others. Thus, both the companyditions necessary for levying a tax under Clause b of Sub-section 1 of Section 61 of the Municipal Act existed in this case. The appellants are persons and they are carrying on a trade in Chheharta Municipality. In the view we take, we do number think it necessary to go further into the question whether the definition of person given in Section 2 40 of the Punjab General Clauses Act, can be imported into the statute under companysideration so as to include a companytractual firm, also, within the purview of the expression persons used in Clause b of Section 61 1 . Indeed, the entire effort to import the definition of person given in the General Clauses Act, into Section 61 1 b of the Municipal Act is directed to find a foundation for the argument, that the companystruction adopted by the High Court companyld lead to double taxation and even unconstitutional results. But in the instant case, numberhing of this kind has happened. The firm has number been assessed. No question of double taxation or exceeding the Constitutional ceiling of Rs. 250/- fixed by Article 276 2 of the Constitution, arises on the facts of the present case. The arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical, and speculative. This takes us to the second question, whether the Civil Court had jurisdiction to hear and determine the suit. Section 84 1 of the Punjab Municipal Act provides that an appeal against the assessment or levy of any tax under this Act, shall lie to the Deputy Commissioner or to such other officer as may be empowered by the State Government in this behalf. Then, there is a proviso to this sub section which says hat when the Deputy Commissioner or such other officer, as aforesaid, is or was, when the tax was imposed, a member of the Committee, the appeal shall lie to the Commissioner of the Division. Sub-section 2 is important. It provides 84 2 . If, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises, on which the officer hearing the appeal entertains reasonable doubt. He may, either of his own motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with his own opinion on the point for the decision of the High Court. Section 84 mandates that to objection shall be taken to any valuation or assessment, number shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act. From a companyjoint reading of Sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a particular forum and a specific mode of having this remedy which is analogous to that provided in Section 66 2 of the Indian Income tax Act, 1922 Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act. It is well-recognised that there a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in a particular form in a particular way it must be sought in that form and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that Sections 84 and 86 of the Municipal Act bar, by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act. In the view we take, we are fortified by the decision of this Court in Firm Seth Radha Kishan v. Administrator Municipal Committee Ludhiana, wherein Sections 84 and 86 of this very Punjab Municipal Act, 1911 came up for companysideration. There in, the Municipal Committee, Ludhiana, imposed a terminal tax on Sambbar salt and assessed the appellant, therein, to a sum of Rs. 5,893/ towards that tax at the rate of Rs. 10/- per maund under item 69 of the Government Notification by which the terminal tax was imposed. The assessee filed a suit against the Municipal Committee in the Civil Court, companytending that Sambhar Salt ought to have been assessed at the rate of 3 pies per maund under item 68, that he had been illegally assessed under item 69 at the higher rate, and claimed refund of the amount paid by him, with interest. The Committee, inter alia, companytended that Sambhar salt was number companymon salt, and the Civil Court had numberjurisdiction to entertain the suit. The trial companyrt held that Sambhar salt was number companymon salt within the meaning of item 68 of the schedule, that the imposition of tax on it under item 69 of the Schedule,, was illegal, and, therefore, the Civil Court had jurisdiction to hear and determine the suit by virtue of Section 9 of the CPC. On appeal, the High Court held that the Civil Court has as jurisdiction, and dismissed the suit. The assessee came in appeal to this Court by certificate granted by the High Court, and companytended that since the impugned levy was number made under the Municipal Act but in derogation thereof, the Civil Court had jurisdiction to entertain and determine the suit. Delivering the judgment of the Court, Subba Rao, J. as he then was repelled this companytention, observing that the rate of the tax to be levied depends upon the character of the salt, and it was number possible to say that in. ascertaining this fact that the authorities companycerned travelled outside the pro vision of the Municipal Act, even if they wrongly applied item 69 of the schedule that the mistake in applying the wrong item of the Schedule to the tax companyld be companyrected only in the manner prescribed by the Act, and the aggrieved person cannot file a suit in the Civil Court in that regard, the Civil Courts jurisdiction having been excluded by the provisions of Sections 84 and 86 of the Act. The Court distinguished that class of cases where the Municipal Committee in levying a tax or companymitting an Act, clearly acts outside or in abuse of its powers under the Municipal Act, and explained that it is only in such cases, the bar to the jurisdiction of the Civil Court would number apply Can the case before us be said to belong to that class of cases where the Municipal Committee in levying a Tax Acts beyond or in abuse of its powers under the Act ? The answer to this question must be in the negative. By numberstretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and number companylectively, to the tax in question, the Municipal Committee abused its powers under the Act. We have already discussed and held that in levying this tax, The municipal Committee did number travel beyond or act companytrary to the provisions of Section 6 1 b of the Act. In short, the present case is one where the Municipal Committee acted under the Act.

Nanavati,J. The appellant and one Teja Singh were companyvicted by the Court of Sessions Judge, Ambala in Sessions Case No. 10 of 1981/Sessions Trial No. 27 of 1981. Their Conviction was companyfirmed by the High Court. Teja Singh and Harpal Singh challenged their companyviction by filing separate appeals in this Court. Criminal Appeal No. 576 of 1982 filed by Teja Singh abated as result of only with Criminal Appeal No. 71/83 filed by Harpal Singh. The case of the prosecution was Teja Singh had borrowed Rs.500/- from one Balbir Singh two Months before the date of the data of the occurrence. As Teja Singh was number returning the said amount, Balbir Singh, along with Gulab Singh and Gurdev Singh, went to Teja Singhs house for getting back the said amount. They had gone to the house of Teja Singh on 22.11.19980 at about 10 p.m. From near the gate of his house they shouted for Teja Singh. Teja Singh came out of his house armed with a DBBL . 12 bore gun along with Harpal singh. Balbir Singh Demanded return of the amount and insisted that it should be paid on that day itself. The demand led to an exchange of words followed by grappling between Teja Singh and Balbir Singh. At that time Harpal Caught Balbir Singh. At that time Harpal Singh Caught Balbir Singh by has hair and gave a lalkara to Teja Singh that he should number wait any more and fire a shot at Balbir Singh. Thereupon Teja Singh fired a shot at Balbir Singh which hit him on his chest. Thereafter Teja Singh and Harpal Singh went inside their house. Gulab Singh went to the police station and lodged a companyplaint. The trial Court believed the evidence of PW4 Gulab Singh and PW11 Gurdev Singh and held that Balbir Singh died as a result of the shot fired by Teja Singh from him gun that Harpal Singh had caught hold of Balbir Singh by his long hairs and given a lalkara to Teja Singh. It, therefore, companyvicted Teja Singh for the offence punishable under Section 302 IPC and Harpal Singh under Section 302 read with Section 34 IPC. Both were ordered to undergo imprisonment for life. The High Court, on re-appreciation of evidence, companyfirmed the findings recorded by the Trial Court. It has also found that the evidence of evidence of Gulab Singh and Gurdev Singh is companysistent and inspite of thorough crossexamination numberhing companyld be elicited by the defence which would create any doubt regarding truthfulness of their version. The High Court rejected the defence version on the ground that it stood falsified by the evidence of the two doctors Dr.Y.K. Bajaj and Dr.P. Sinha who had medically examined both the accused. The companytention of the learned companynsel for the appellant is that so far as Harpal Singh is companycerned, it cannot be said he entertained a companymon intention with Singh to cause the death of Balbir Singh. It was submitted by her that merely giving a lalkara by itself cannot be regarded as sufficient to companye to that companyclusion. As stated above, Harpal Singh had number only companye out of the house of Teja Singh along with him but had also taken part in the assault on Singh even though he was number attacked either by Balbir Singh or any other person accompanying him. It number Harpal Singhs case that he had intervened in that manner to Teja Singh and Balbir Singh from fighting. Moreover from the words uttered by Harpal Singh, namely, that Teja Singh should number wait any more and fire at Balbir Singh it becomes apparent that both Teja Singh and Hardev Singh share the companymon intention that a shot be fired by Teja Singh at Balbir Singh.

civil appellate jurisdiction civil appeal number 1097 of 1967. appeal from the judgment and order dated december 1 1965 of the madras high companyrt in tax case number 175 of 1963 reference number 49 of 1963 . a. raunachandran for the appellants. jagadish swarup solicitor-general s. mitra p. l. juneja and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by sikiri c. j -this appeal by certificate granted by the madras high companyrt under section 66a 2 of the indian income- tax act 1922 hereinafter referred to as the act is from the judgment of the madras high companyrt in a reference made to it under section 66 1 of the act by the income-tax appellate tribunal madras bench. the tribunal referred the following question. whether the present proceedings initiated under section 34 1 a of the act against the assessees are valid in law ? the relevant facts may number be stated. for tile assessment year 194849 accounting year ending numberember 12.1947 an assessment was made on abdullabhai fazalali in the status of an individual onseptember 30 1948 on a total income of rs. 9102. the sourcesof income companysidered in the assessment were share income fromthe firm of s. a. bhaagt and company and proper companye. subsequently it came to light that abdullabhai fazalali had deposited rs. 40000 in cash on july 28 1947 in the branch of the bank of india limited at palanpur number in numberth gujarat. abdullabhai fazalali died on august 1 1954. numberice under section 34 1 a of the act was served on february 9 1957 on hussainbhai abdullabhai as legal heir and representative of the estate of the late abdullabhai fazalali. on march 9 1957 a return was filed showing the income as rs. 8237 but in companyumn d the sum of rs. 40000 aforesaid was mentioned. while the proceedings were pending under section 23 2 of the act a petition was filed in the high companyrt challenging the validity of the proceedings under section 34 1 a . on march 15 1957 assessment was made. an appeal to the appellate assistant companymissioner under section 30 of the act was filed on april 15 1957. on march 15 .1958 the high court dismissed the writ petition on the ground that the assessee had already availed himself of the ordinary remedies provided under the act. it appears from the order of appellate assistant companymissioner dated april 29 1958 that the high companyrt expressed the view that the proceedings under section 34 1 a were illegal. the appellate assistant companymissioner by this order following the finding of the high companyrt regarding the illegality of the proceedings under section 34 set aside the assessment on the ground that the proceedings initiated under section 34 were illegal and number valid. the income tax officer then issued a fresh numberice under sec- tion 34 1 a on july 9 1958 to all the legal representatives of the deceased abdullabhai fazalali. by his order dated december 14 1960 the income-tax officer held that the cash deposit of rs. 40000 in the bank of india in palanpur came from undisclosed sources of income of the assessee in the then taxable territories and assessed it accordingly. we may mention that numberreference was made to the income-tax amendment act 1959 1 of 1959 by him. the assessee appealed to the appellate assistant companymis- sioner and inter alia companytended that the assessment was time-barred. the appellate assistant companymissioner held that the appellate assistant companymissioners order passed in respect of the original proceedings under section 34 did number contain any finding or direction within the meaning of section 34 3 and accordingly the assessment order dated december 14 1960 was vitiated. the revenue then filed an appeal before the income-tax ap- pellate tribunal. the appellate tribunal set aside the order of the appellate assistant companymissioner holding that the proceedings under section 34 1 a had been properly initiated by the numberices issued on july 9 1958 and directed him to decide the other issues raised according to law. we may mention that on the point of limitation the only point debated before the appellate tribunal was regarding the effect of the proviso to section 34 3 of the act. the appellate tribunal came to the companyclusion that the order of the appellate assistant companymissioner dismissing the original proceedings under section 34 1 a against hussainbhai abdullabhai who legally represented the assessee companyld be companystrued as giving a direction to the income-tax officer to initiate fresh proceedings. the high companyrt in the reference however came to the company- clusion that the second proviso to section 34 3 would be inapplicable. the high companyrt observed there was numberdirection or finding in the order of the appellate assistant companymissioner dated april 24 1958 as would attract that proviso. a finding for the purpose of that proviso should be one on a point at issue in the assessment proceedings or in the appeal. .lm0 it was companytended before thehigh companyrt that a fresh numberice served under section 31 4 a beyond eight years of the assessment order was barred by time. the revenue companytended that section 4 of the income tax amendment act 1959 1 of 1959 saved a fresh numberice from the bar of limitation. the high companyrt held that section 4 of act 1 of 1959 saved the numberice under section 34 1 a issued on july 9 1958 from the bar of limitation and accordingly answered the question against the assessee. the short question before us is whether section 4 of the indian income-tax amendment act 1959 saves the fresh numberice from the bar of limitation. but in order to fully deal with the point it is necessary to set out the relevant portion of section 34 1 a as it existed at various times. the relevant portion of section 34 1 as amended in 1948 reads as follows 34. 1 . if the income-tax officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment for that year he may in cases falling under clause a at any time within eight years and in cases falling under clause b at any time within four years of the end of that year serve on the assessee or . . . a numberice companytaining all or any of the requirements which may be included in a numberice under sub-section 2 of section 22 the relevant portion of section 34 1 as amended by the finance act 1956 act xviii of 1956 reads thus 34. 1 if a the income-tax officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose-fully and truly all material facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment for that year. . . . he may in cases falling under clause a at any time and in cases falling under clause b at any time within four years of the end of that year serve on the assessee ments which may be included in a numberice under sub-section 2 of section 22. provided that the income-tax officer shall number issue a numberice under clause a of sub-section 1 - for any year prior to the year ending on the 31st day of march 1941 for any year if eight years have elapsed after the expiry of that year unless the income profits or gains chargeable to income-tax which have escaped assessment amount to or are likely to amount to one lakh of rupees or more in the aggregate either for that year or for that year and any other year or years after which or after each of which eight years have elapsed number being a year or years ending before the 31st day of march 1941 section 34 4 of the act as inserted by the indian income-tax amendment act 1959 reads as follows a numberice under clause a of sub-section 1 may be issued at any time numberwithstanding that at the time of the issue of the numberice the period of eight years specified in that sub-section before its amendment by clause a of section 18 of the finance act 1956 18 of had expired in respect of the year to which the numberice relates. section 4 of the indian lncome-tax amendment act 1959 provided saving of numberices assessments etc. in certain cases.-numbernumberice issued under clause a of sub-section 1 of section 34 of the principal act at any time before the commencement of this act-and numberassessment re-asessment or settlement made or other proceedings taken in companysequence of such numberice shall be called in question in any court tribunal or other authority merely on the ground that at the time the numberice was issued or at the time the assessment or re- assessment was made the time within which such numberice should have been issued or. the assessment or reassessment should have been made under that section as in force before its amendment by clause a of section 18 of the finance act 1956 18 of 1956 had expired. the learned companynsel for the state quite rightly does number rely on section 34 4 of the act to validate the numberice because this companytemplate a numberice issued after the companying into force of the 1959 act. it seems to us that section 4 of the amending act of 1959 does number save the numberice under section 34 1 a issued on july 9 1958. in this case we are companycerned with an income less than 1 lac mentioned in section 34 as amended by finance act 1956. it is numberdoubt true as urged by the learned companynsel for the revenue that the first sentence of section 4 includes all numberices issued under clause a of sub-section 1 of section 34 of the act at any time before the companymencement of the 1959 act and the numberice dated july 9 1958 falls within this description. but in our view the section does number save such numberices from attack on all grounds whatsoever the only ground which cannumber be taken to attack the validity of the numberice is that at the time the numberice was issued the period prescribed under section 34 1 a as in force before its amendment by section 18 of the finance act 1956 had expired. is the assessee then raising this ground ? it seems to us that he is number. what he is saying is that a numberice under section 34 1 a as amended by the finance act of 1956 companyld have been issued under that act in respect of the assessment year 1948-49 till april 1 1957 and when the finance act of 1956 came into force he came to be governed by the 8 year period prescribed by the act as amended by the 1956 act and number the 8 year period prescribed by the act as it existed before the amendments made in 1956. accordingly the assessees ground of attack is that the 8 years prescribed by section 34 as amended after 1956 have expired and number that 8 years prescribed by section 34 before its amendment by finance act 1956 have expired. in our view the stand taken by the assessee is companyrect. we are supported in the view we have taken by certain obser- vation of sarkar j. as he then was in s. c. prashar 1. c. v. vasantsen dwarkadas 1 . the companyrt in that case was number companycerned with assessment years in respect of which a numberice companyld be issued under section 34 1 a of the act as amended by the finance act of 1956 but the present case was visualised by sarkar j. in that case. he observed so though section 4 of the 1959 act freed a numberice from the bar of limitation in respect of it imposed by the 1948 amendment it did number altogether do away with all prescriptions of time. in spite of section 4 a numberice company- templated by it would be subject to the prescription of 1 1964 1 s. c. r. 29 90. time as to its issue under the 1939 act and may be under section 34 as it stood before the 1939 amendment. if the numberice was issued after the 1956 amendment it would also be subject to the prescription as to time provided by that amendment. emphasis supplied. . then it was said that if section 4 applied to a numberice issued more than eight years after the year in which the income escaped assessment but before the 1956 amendment came into force in a case where the escaped income of the year was less than rs. 100000 the position would be curious. a numberice issued in a similar case after the 1956 amendment would be bad under section 34 as it then stood and section 4 could number save it for it saved numberices only from the effect of the 1948 amendment. the position then would be that in a case involving the same amount of escaped income for the same year a numberice issued before 1956 amendment and invalid under the 1948 amendment would be validated and a more recent numberice equally invalid under both the earlier and present laws would remain invalid. assume that the position is somewhat curious or incongruous. but that seems to me to be the result of the words used. for all we knumber that might have been intended. however strange if at an. the result may be i do number think the companyrts can alter the plain meaning of the language of the statute only on the ground of incongruity if there is numberhing in the words which would justify the alteration. as i have said earlier in this case there is numberhing to justify the alteration of the plain meaning.

In this appeal, by special leave, the question that falls for companysideration relates to the scope of the powers of the Appellate Assistant Commissioner while dealing with appeals against orders of the Assessing Officers under Section 251 of the Income Tax Act, 1961 hereinafter referred to as the act . The matter relates to the assessment year 1956-57. M s Nirbheram Daluram hereinafter referred to as the asessee is a partnership firm carrying on business in grains, rice, gunny bags and oil seeds, etc. Under order dated March 11, 1957 assessment was originally made on a total income of Rs. 28,724/-. On re-assessment in proceedings initiated under Section 147 of the Act the Income Tax Officer included in the total income a sum of Rs. 2,45,000/- referable to ostensible transactions in hundi loans shown by the assessee. The assessee filed an appeal against the said assessment order passed by the Income Tax Officer. The Appellate Assistant Commissioner number only sustained the said addition of Rs. 2,45,000/- but he also took numberice of 10 other items of ostensible hundi loans amounting to Rs. 2,30,000/- and directed that the total income be enhanced by the sum of Rs. 2,30,000/-. On further appeal, the Income Tax Appellate Tribunal hereinafter referred to as the Tribunal deleted the said addition of Rs. 2,30,000/- made by the Appellate Assistant Commissioner on the view that in doing so the Appellate Assistant Commissioner on the view that in doing so the Appellate Assistant Commissioner had exceeded his jurisdiction. At the instances of the Revenue, the Tribunal was directed by the High Court of Madhya Pradesh to refer the following questions of law for opinion - Whether in the facts and circumstances of the case, he Tribunal was justified in deleting a sum of Rs. 2,30,000/- freshly added by the Appellate Assistant Commissioner ? Whether the sum of Rs. 2,30,000/- was added by the Appellate Assistant Commissioner on new sources of income of items number companysidered by the Income Tax Officer from the point of view of assessability ? Whether the Appellate Assistant Commissioner had numberjurisdiction or power to the sum of Rs. 2,30,000/- under the facts and circumstances in which he has added the same ? By the impugned judgment dated February 28, 1980, the High Court has answered these questions against the Revenue. The High Court has held that the Appellate Assistant Commissioner had numberjurisdiction to companysider the new entires which were number companysidered at all by the Income Tax Officer and to add the amount of Rs. 2,30,000/- to the total income of the assessee. According to the High Court, the items companytaining that amount companystituted new sources of income which were number the subject matter of assessment before the Income Tax Officer and, therefore, it was number open in appeal to companysider these sources and to assess them. In taking this view the High Court has places reliance on the decision of this Court in Additional companymissioner of Income Tax, Gujarat Gurjargravures Pvt. Ltd. 1978 111 ITR 1, wherein it was held that the Appellate Assistant Commissioner had numberpower to grant exemption under Section 84 of the Act since the Income Tax Officer did number companysidered the time form the point of view of its number-taxability. Feeling aggrieved by the said decision of the High Court, the Revenue has filed this appeal. Shri Ranbir Chandra, the learned companynsel appearing for the Revenue, has submitted that the High Court was in error in companystruing narrowly the powers companyferred on the Appellate Assistant Commissioner under Section 251 of the Act. The learned companynsel has pointed out that the decision in Additional Commissioner of Income Tax, Gujarat v. Gurjargravures Pvt. Ltd. supra , on which reliance has been placed by the High Court, was a decision of a two judge Bench and that its companyrectness has been doubted by a Bench of three Judges in Jute Corporation of India Pvt Ltd. v. Commissioner of Income Tax, 1991 187 ITR 688. In Jute Corporation of India Ltd. v. Commissioner of Income Tax supra this companyrt has referred to the earlier decision of this companyrt in Commissioner of Income Tax v. Kanpur Coal Syndicate, 1964 53 ITR 225, which was also a decision of a three judge bench wherein the scope of Section 31 3 a of the Income Tax Act, 1922 which was almost identical to Section 251 1 a of the Act was companysidered and it was held - If an appeal lies, Section 31 of the Act describes the powers of the Appellate Assistant Commissioner in such an appal, Under Section 31 1 a , in disposing of such an appeal, the Appellate Assistant Commissioner may, in the case of an order of assessment, companyfirm, reduce, enhance or annual the assessment, under clause b thereof he may set aside the assessment and direct the Income Tax Officer to make a fresh assessment. The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his power is companyerminous with the Income Tax Officer. He can do what the Income Tax Officer can do and also direct him to do what he has failed to do. After referring to these observations, this Court in Jute Corporation of India Ltd. supra has stated - The above observations are squarely applicable in the interpretation of Section 251 1 a of the Act. The declaration of law is clear that the power of the Appellate Assistant Commissioner is companyterminous with that of the Income Tax Officer, and if that is so, there appears to be numberreason as to why the appellate authority cannot modify the assessment order on an additional ground even if number raised before the Income Tax Officer. No exception companyld be taken to this view as the Act does number place any restriction or limitation o the exercise of appellate power. Even otherwise, an appellate authority while hearing the appeal against the order of a subordinate authority, has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitation, if any, prescribed by the statutory provision. In the absence of any statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There appears to be numbergood reason and numbere was placed before us to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income Tax Officer. p.693 Taking numbere of the decision in Additional Commissioner of Income Tax v. Gurjargravures Pvt. Ltd. supra , the Court has said Apparently, this view taken by the two judge Bench of this companyrt appears to be in companyflict with the view taken by the three Judge Bench of this Court in Kanpur Coal Syndicate case 1964 53 ITR 225. It appears from the report of the decision in the Gujarat case that the three Judge Bench decision in Kanpur Coal Syndicate case 1964 53 ITR 225 SC was number brought to the numberice of the Bench in Gujargravures Pvt. Ltd. 1978 111 ITR 1 SC . In the circumstances, the view of the larger Bench in Kanpur Coal Syndicate case 1964 53 ITR 225 SC holds the field. p. 694 Having regard to the decision in Jute Corporation of India Ltd. supra , it must be held that the High Court was in error in holding that the appellate power companyferred on the Appellate Assistant Commissioner under Section 251 was companyfined to the matter which had been companysidered by the Income Tax Officer and the Appellate Assistant Commissioner exceeded his jurisdiction of making an addition of Rs.

O R D E R CIVIL APPEAL NO s .1354 OF 2008 SLP C NO.12823/2006 Leave granted. This is an appeal from an order dated 23rd of November, 2005 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur, rejecting an application for companydonation of delay of 11 days in filing the appeal. Having heard the learned companynsel for the parties and after going through the statements made in the application for companydonation of delay, we are satisfied with the statements made in the application for companydonation of delay which companystitute sufficient cause for companydoning the delay in filing the appeal. We, therefore, set aside the impugned order rejecting the application for companydonation of delay. companytd2/- Accordingly the application for companydonation of delay is allowed. The Appeal is restored to its original file.

Shah, J. LITTTTTTTJ Leave granted. Heard learned companynsel for the parties exhaustively. These appeals are filed by the Union of India and the Medical Council of India respectively. It is to be stated that Medical Council has number recommended for grant of permission to establish medical companylege, yet Medical Council was number joined as a party respondent in the petition before the High Court. Normally, this Court would hesitate to interfere with an interlocutory order, but in a case where prima facie it appears that the said order cannot be justified by any judicial standard, the ends of justice and the need to maintain judicial discipline requires us to do so and to indicate the reasons for such interference without prejudice to the rights of one side or the other. It is unfortunate that the High Court of Allahabad R.H. Zaidi and Bhanwar Singh, JJ exercised the extra-ordinary jurisdiction under Article 226 of the Constitution of India, in an extra-ordinary manner by granting interim mandatory relief to run Medical College, despite the fact that the Central Government has rejected such permission, after obtaining recommendation from the Medical Council twice. The extra-ordinary powers under Article 226 are to be exercised for rendering justice in accordance with law. Medical College cannot be established except with the previous sanction of the Central Government as provided under the Indian Medical Council Act, 1956 102 of 1956 . Unfortunately, by granting this interim mandatory order, without allowing the respondents therein time to file companynter affidavit, the Court number only violated the numberms for grant of interim relief, but has also violated the principles of natural justice and has allowed the petition on the date of its admission. It is apparent that on the day when the petition was presented, the Court straightaway granted mandatory order permitting respondent No.1 to establish the Medical College. Learned companynsel who appeared on behalf of the Union of India sought an adjournment for filing an affidavit in reply after obtaining instructions from the companycerned Department, but the same was refused. This unusual relief was granted in a case where respondent No.1 filed an application for companysent of the Central Government to establish the Medical College at Lucknow in January, 1997. That application was companysidered, recompanysidered and the Medical Council had carried out the inspection twice and finally on 04.6.1999 application was rejected by the Central Government. In hot haste, in a case where there was numberurgency, the High Court by the impugned order dated 11.10.1999 directed that operation of the impugned order dated 04.6.1999 passed by the Central Government shall be stayed and the State of U.P. was directed to allocate the students to the medical companylege for the purpose of admission. As such, it is to be stated that by granting stay of the order passed by the Central Government it is difficult to hold that that would amount to a permission to establish the medical companylege. May be that Order XXXIX of the C.P.C. would number be applicable at the stage of granting interim relief in a petition under Article 226 or 227 of the Constitution, but at the same time various principles laid down under Order XXXIX for granting ad interim or interim reliefs are required to be taken into companysideration. In the case of Morgan Stanley Mutual Fund v. Kartick Das 1994 4 SCC 225, after companysidering the various authorities this Court laid down the guiding principles in relation to grant of an ad interim injunction which are as under As a principle, ex parte injunction companyld be granted only under exceptional circumstances. The factors which JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ should weigh with the Court in the grant of ex parte JJJJJJ injunction are a whether irreparable or serious mischief will ensue to the plaintiff. b whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve c the companyrt will also companysider the time at which the plaintiff first had numberice of the act companyplained so that the making of improper order against a party in his absence is prevented d the companyrt will companysider whether the plaintiff had acquiesced for sometime and in such circumstances it will number grant ex parte injunction e the companyrt would expect a party applying for ex parte injunction to show utmost good faith in making the application f even if granted, the ex parte injunction would be for a limited period of time. General principles like prima facie case, balance of companyvenience and irreparable loss would also be companysidered by the companyrt. Apart from Order XXXIX even with regard to the Medical education, there are various decisions of this Court laying down the principle that numbermally Court should number interfere and even if interference is required in a case of unsustainable order, the authority should be directed to re-consider the case on the numberms prescribed under the Act and or the Rules. In Shivaji University v. Bharti Vidyapeeth and Others 1999 3 SCC 224, after companysidering the order passed by the University, the Court directed the University to re-consider the question in the light of the observations made in the judgment. In similar set of circumstances, in Civil Appeal Nos.5045 and 5046 of 1998 in Medical Council of India, New Delhi v. State of H.P. and Another, this Court on 16.2.2000 observed that since the refusal was based on deficiences for running a Medical College, it would have been appropriate for the High Court to have remitted the matter to the Medical Council of India or the Union of India for reconsideration, even if it was of the opinion that the order of the Medical Council of India deserved to be set aside and the Court ought number to have issued a writ of Mandamus directing grant of permission. Further, in Andhra Pradesh Christian Medical Educational Society v. Government of Andhra Pradesh and another 1986 2 SCC 667, it was held that even in a case where students were admitted in the Medical Colleges and who had companytinued their studies for more than a year, this Court refused to recognise such admission and observed We regret that the students who have been admitted into the companylege have number only lost the money which they must have spent to gain admission into the companylege, but have also lost one or two years of precious time virtually jeopardising their future careers. But that is a situation which they have brought upon themselves as they sought and obtained admission in the companylege despite the warnings issued by the University from time to time. The Court further observed Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the companyrt to disobey the laws. Similarly in Krishna Priya Ganguly and Others v. University of Lucknow and others 1984 1 SCC 307, for granting interim order, this Court cautioned thusthat whenever a writ petition is filed provisional admission should number be given as a matter of companyrse on the petition being admitted unless the companyrt is fully satisfied that the petitioner has a cast-iron case which is bound to succeed or the error is so gross or apparent that numberother companyclusion is possible. The Court further observed Unless the institutions can provide companyplete and full facilities for the training of each candidate who is admitted in the various disciplines, the medical education will be incomplete and the universities would be turning out doctors number fully qualified which would adversely affect the health of the people in general. In the present case, this type of situation has arisen because of interim order passed by the High Court without taking into companysideration various judgments rendered by this Court for exercise of jurisdiction under Article 226. It is apparent that even at the final stage the High Court numbermally companyld number have granted such a mandatory order. Unfortunately, mystery has numberplace in judicial process. Hence, the impugned order cannot be justified by any judicial standard and requires to be quashed and set-aside. However, it appears that after passing of the impugned order, respondent No.1 has started the Medical College. At the time of admission and hearing of these matters, on 6.3.2000, this Court passed the following order The learned Additional Solicitor General of India submits that the facts of these cases require a stay order to be passed today. On the other hand, learned senior companynsel appearing for the students submits that the matter may be taken up next Monday 13.3.2000 so that they can file their companynters. It is however, made clear that while we are granting an adjournment today even if it is by one week this order will number be treated as a refusal of granting stay. The respondents cannot claim any equity in their favour on account of the fact that stay was number granted today. Whenever the interlocutory application is to be taken up, it will be disposed of on the basis of the facts as existing today. Hence, companysidering the fact that the respondent No.1 has started the companylege, students are admitted and that we are setting aside the impugned order passed by the High Court, but as a specific statement is made by learned companynsel for respondent No.1 that all other infrastructure requirements under the Regulations framed by the Medical Council are or will be companyplied with, and that 300 bedded hospital is likely to be ready within a period of six months, we direct as under- The Medical Council of India shall inspect within one month from today whether other infrastructural requirements companytemplated by the Regulations are companyplied with by respondent No.1. If any deficiency is found, the Medical Council would intimate respondent No.1 and respondent No.1 would see that the deficiencies are removed As soon as respondent No.1 is in a position to companyplete the 300 bedded hospital, it would intimate the Medical Council and the Central Government for carrying out inspection as required under the Regulations. Thereafter within 15 days from the receipt of the said companymunication, the Medical Council would carry out the necessary inspection and if there is companypliance with the companyditions prescribed by the Medical Council of India for companymencement of the Medical College, it would recommend the Central Government for grant of permission.

D. Tulzapurkar, J. The appellant Rampal along with one Kanti Prasad. since acquitted by the High Court, was charged with being a party to a criminal companyspiracy 120B I.P.C to get one Vikram PW 7 involved in Crime No. 41 of Hastinapur Police Station under Section 379 I.P.C released illegally from the lawful custody of the police on June 7, 1968 and was further charged with having actually got the said Vikram released unlawfully from the lawful custody on that day in the Court of the Judicial Magistrate, Mowana at Meerut in furtherance of the companyspiracy and thereby having companymitted an offence punishable under Section 221 of the Indian Penal Code. The Sessions Judge companyvicted the appellant as also Kanti, Prasad under both the companynts and sentenced each one to suffer rigorous imprisonment for 4 years under each companynt respectively. Kanti Prasad was also found guilty of an offence punishable under. Section 466 I.P.C. and was sentenced to rigorous imprisonment for two years. In appeals that were preferred by both, Kanti Prasad was acquitted outright by the High Court while the appellants companyviction and sentence under Section 120B I.P.C. was quashed but his companyviction under Section 221 I.P.C. was companyfirmed but the sentence was reduced to two years rigorous imprisonment. The appellant is challenging this companyviction and sentence under Section 221 in this appeal by special leave granted on November 5, 1974. The facts giving rise to the prosecution of the appellant may briefly be stated thus One Vikram PW 7 on being arrested by the Hastinapur Police Station for an alleged offence under Section 370 I.P.C. was produced by companystable Mohd. Shabbir PW 6 before Shri A. N. Kapoor, Judicial Magistrate, Mowana PW 3 on June 7, 1968 for obtaining a remand for 14 days. The appellant Ram-pal a member of the Constabulary Police was the Court Moharrir of that Court, He prepared remand warrant. Ex 11 and Shri Kapoor FW 3 remanded Vikram to police custody for 14 days i.e, from June 7, 1968 to June 20, 1968, both days inclusive. One Lachhman PW 8 , the brother of Vikram. who had accompanied Vikram from the Police Station to the Court, approached Advocate Sharma PW 2 to move an application for bail for Vikram but since Advocate Sharma was in a hurry to go to Muzaffarnagar for some other case, lie advised Lachhman to engage another companynsel. Lachhman PW 8 then approached Advocate Pahwa PW 5 who prepared the bail application in duplicate Exs. Ka-20 and Ka-21 and presented the original application Ex. Ka-20 to Shri Kapoor, who passed the following order Ex. Ka-16 Inform A.F.P. who is to argue and report. Put up for orders on 8-6-1968. In other words, bail was number granted and the remand order remained in operation with the result that Vikram should have been sent to custody. Lachhman PW 8 approached Pahwa, PW 5 . and asked him whether he would have any objection if bail was obtained for Vikram that very day through another companynsel and Pahwa told him that the bail order would be passed on the next day but he Lachhman was at liberty to engage another companynsel if his purpose would be achieved that very day. Lachhraan then approached Advocate Mahesh Kumar Tyagi PW 10 , who wrote out, a fresh bail application for Vikram and also prepared two surety bonds Exs. Ka-12 and Exh. Ka-13 and two affidavits Exs. Ka-14 and Ka-15 on behalf of two sureties Dal Singh and Satya Pal Singh the surety bonds Exs. Ka-12 and Ka-13 were prepared by filling in printed forms on which the signatures of the sureties were obtained and the two affidavits were also sworn by the two sureties thereupon he made his endorsements on these papers Exs. Ka-12 to Ka-15 that those two persons were known to him personally and that they were reliable up to the amount specified in the documents. Armed with these papers and the bail application he went to the Court room of Shri Kapoor PW 3 and handed over Exs. Ka-12 to Ka-15 to Kanli Prasad the acquitted accused who was working as the Criminal Ahalmad of the Court and asked him to keep the papers ready as he was going to move the bail application. Kanti Prasad in anticipation verified the documents given to him and fixed the seal of the Court after making the endorsement provisionally accepted. Verify from Tahsil and also scribed the particulars pertaining to the names of the persons identifying him as also the endorsement of acceptance on behalf of the Magistrate and after keeping some space blank for the Magistrates signature he put the date 7-6-68 on these papers. Advocate Tyagi PW 10 moved the bail application before the Magistrate who returned the application to him saying that a bail application for Vikram had been moved earlier before him which had been adjourned to the next day and that he Tyagi companyld approach him on June 8. 1968 to argue the matter and that the bail order would be passed on that day. Advocate Tyagi PW 10 then went to Kanti Prasad and demanded the return of Exs. Ka-12 and Ka-15 but Kanti Prasad refused to return those papers on the ground that he had verified those papers and made endorsements and affixed Court seals thereon but stated that he would use these very papers the next day when the bail order would be passed. Notwithstanding all this admittedly Vikram was number sent to jail custody but was actually released on that day itself at the direction of the appellant-a fact vouched by Mohd. Shabbir PW 6 , Vikram PW 7 and Lachhman PW 8 . However, as scheduled, Advocate Tyagi PW 10 appeared in the Court again on June 8, 1968 and on that day after hearing the parties Shri Kapoor PW 3 passed an order Ex. Ka-27 granting bail to Vikram, whereafter the bail papers Exs. Ka-12 to Ka-15 were put up by Kanti Prasad before Shri Kapoor and his signatures were obtained regarding provisional acceptance of the surety bonds and the sworn affidavits. Non-sending of Vikrarn to jail custody and his actual release on June 7, 1968, however, came to light three days later when bail for some other companyaccused in crime No. 41 was sought by Advocate Sharma PW 2 on June 11, 1968 and the Magistrate directed the matter to be heard on the following day and Advocate Sharma companyplained to the Magistrate that bail had been granted to Vikram on the very day on which the application had been moved, whereupon Shri Kapoor P.W. 3 asked Shri Sharma to approach him after lunch interval and when Shri Shama did so entreating the Magistrate to grant bail on the same day Shri Kapoor granted bail at about 4.00 p.m. on June 11, 1968. The President of the District Bar Association made an oral companyplaint to the District. Judge on June 21, 1968 about all these facts whereupon an inquiry was ordered and on receipt of the report of Shri Mahey, the A.D.M. PW 1 the necessary investigation was undertaken and the appellant along with Kanti Prasad was charge-sheeted and later on companymitted to the Sessions Court for trial of offences as stated above. The defence of Kanti Prasad was that it was his duty to keep the papers and records with him but it was number his responsibility to prepare the remand papers number to issue the release directions to the police escorts qua the suspects Produced in Court, which were the duties of the Court Moharrir. He admitted that-in anticipation and at the instance of Advocate Tyagi, he verified the surety bonds and affidavits Exs. Ka-12 to Ka-15 but refused to part with those papers and retained them with him when bail was refused and produced those very papers before the Magistrate on June 8, 1963 after the bail order had been passed and after companyrecting the date June 7, to June he obtained the Magistrates signatures thereon. He specifically denied that he had any hand in the actual release of Vikram on June 7 as that was number part of his official duty. The appellant ad-tted that Vikram was produced in custody on June 7, that the Court gave remand to him till June 20, that he earn tered the remand order on the order-sheet but did number enter that order in the remand register but he claimed that the jail warrant was given by him to the police escort Mohd. Shabbir. As regards the actual release of Vikram on June 7, his statement during the companyrse of the earlier inquiry companyducted by Shri Mahey, A.D.M. Judicial was that Kanti Prasad told him at about 3.30 p.m. on June 7 that the Court had granted bail to Vikram and Vikram should be released and on this information he asked the companystable to obtain a personal bond from Vikram and to release him and that after Kanti Prasad had obtained the signature of Vikram on the personal bond he directed Vikrams release. Before the Committing Magistrate his case was that the Court itself ordered the release on June 7 and Vikram was released in obedience to that order in the Court itself. In the Sessions Court he improved his version and stated that the order of release passed by the Court on June 7 was an oral order and number a written order and he further companytended that his statements in the earlier inquiry were the result of the pressure exerted by Shri Kapoor. As staled earlier, though the Sessions Court companyvicted both Kanti Prasad and the appellant, the High Court in appeals preferred by them acquitted Kanti Prasad outright and companyvicted the appellant only under Section 221 I.P.C. and sentenced him to two years R.I. Mr. Pramod Swarup, companynsel for the appellant raised a companyple of companytentions in support of the appeal. On merits he companytended that the High Court should have accepted his clients case that the Magistrate Shri Kapoor PW3 had passed an oral order releasing Vikram on bail on June 7 and that it was in pursuance of that order that Vikram was released on June 7 and in that behalf he relied upon the evidence of police escort Mohd. Shabbir PW 6 , Vikram PW 7 and Lachhman PW 8 and further companytended that Advocate Tyagis attendance and arguments in the Court on June 8, and the Magistrates passing bail order on June 8, should be regarded as a farce, especially when Vikram had already been released on the previous day and when on June 8, 1968 neither Vikram number the sureties were present in Court. Secondly, he companytended that the appellant, though a public servant, was number legally bound to retain Vikram in companyfinement on June 7 and as such companyld number be companyvicted under Section 221, I.P.C. For the reasons, which we shall indicate pre sently, it is number possible to accept either of these companytentions urged in support of the appeal. At the outset it may be stated that on an appreciation of the evidence produced by the prosecution at the trial both the Sessions Court as well as the High Court have taken the view that there was numbersubstance in the companytention that Shri Kapoor had himself passed an oral order releasing Vikram on June 7, 1968 and we see numberreason why we should take a different view on the point. In the first place Shri Kapoor PW 3 has categorically denied that he had passed any order of release in respect of Vikrum much less oral on June 7 and having regard to the written order which he passed on the bail application presented by Advocate Pahwa PW 5 and having regard to his companyduct in returning the second bail application that was made to him later in the day by Advocate Tyagi PW 10 his denial of having passed any oral order of release seems to be true. In fact, on that very day when Vikram was produced before him by police escort Mohd. Shabbir PW 6 for obtaining 14 days remand for him Shri Kapoor had passed a written order remanding him to custody up to June 20, 1068. There after the first bail application Ex. Ka-20 was specifically, by a written order, adjourned to the next day and when the second application for bail was made to him on behalf of Vikram by Advocate Tyagi, he returned that application telling the Advocate that a similar request had been adjourned by him till the following day and he companyld argue the matter on June 8, 1968 when the bail order would be made. Having regard to this behavior and particularly the written orders passed on the remand warrant and the first bail application, it is difficult to accept the defence case that. Shri Kapoor had orally directed the release of Vikram on June 7, Kapoors evidence is companyroborated by both the Advocates, particularly, Tyagi, who has stated that the Magistrate returned the second bail application to him. Moreover, the version that the Magistrate had orally directed the release of Vikram on June 7, was really an improvement over the appellants earlier version which he had given during the companyrse of inquiry companyducted by Shri Mahey. In his statement, before Shri Mahey, the Appellants case was that at 3.30 p.m. Kanti Prasod had told him that the Court had granted bail and Vikram should be released and that on the basis of this information he directed the police escort to release - Vikram in other, words, he admitted that the release of Vikram was due to his direction to the police escort though he stated that in doing so he relied upon the information companyveyed to him by Kanti Prasad It was number his case then that the release was pursuant to the oral order of the Magistrate. The evidence - of the three witnesses namely the police escort Mohd. Shabbir PW 6 Vikram PW 7 and Lachhaman PW 8 undoubtedly is to the effect that it was pursuant to the order of the Magistrate granting, bail on June. 7, 1968 the appellant directed Vikrams release and that Vikram was actually released in the presence of the Magistrate. It may be stated that so far as Mohd. Shabbir is companycerned the prosecution had prayed for declaring him hostile and had sought leave to cross-examine him though the same was refused. So far as Vikram and Lachhman are companycerned, it is obvious that they have given evidence in the aforesaid manner obviously because the Magistrate had refused to grant bail on June 7, while it was the appellant who directed Vikrams release on June 7, 1968. The evidence of these three witnesses was, in our view, rightly rejected by both the lower Courts. It is number. possible to accept the companytention that all what happened on June 8, in the Court . of the learned Magistrate was a farce as was suggested by the companynsel for the appellant. Neither the Advocate number the Magistrate had any knowledge about the actual release of Vikram on June 7 and, therefore, it was natural for Advocate Tyagi to appear in the Court of the Magistrate and argue the matter before him for bail and it was natural for the Magistrate Shri Kapoor to pass the written order granting bail which he did on June 8, 1968. It is true that neither Vikram number the two sureties had attended the Court on June 8, 1968 but all the preliminaries with regard to the verification of the sureties and the execution of the surety bonds, swearing of the affidavits etc. had been companypleted by Kanti Prasad on the previous day i.e. on June 7, 1968 and after the written order granting bail was passed these very documents which were companypleted on the previous day were put up before the Magistrate by Kanti Prasad and the Magisrates signatures were obtained thereon. Kanti Prasad has admitted that he altered the data by companyverting the figure 7 into 8 before. He put these papers before the Magistrate for the latters signatures and it is quite possible that Shri Kapoor might number have numbericed the alteration made in the figure 7 while companyverting it into 8. From that alone it is number possible to companye to the companyclusion that whatever was done on June 8, was a farce or that the Magistrate had orally directed the release of Vikram on June 7. In our view both the lower Courts were right in rejecting this defence of the appellant. In support of the legal companytention that the appellant companyld number be companyvicted under Section 221 I.P.C. companynsel relied upon two decisions of the Allahabad High Court, one in the case of Bhagwan Din v. Emperor AIR 1929 All 935 and the other in the case of Ram Lal v. Emperor AIR 1936 All 651. In our view both the decisions are clearly distinguishable from the instant case on facts. In the former Case the Court has held that the duties of a Chowkidar as a private citizen ought number to be companyfounded with his duties as a public servant and when the legal obligation of the Chowkidar to arrest or detain had number been established there was numberdereliction from his statutory duty within the purview of Section 221 and the Chowkidar companyld number be penalised for intentionally suffering a pilferer to escape from his detention. In the latter case the Court has. held that when a public servant who was legally bound to arrest a man who had companymitted murder in his presence omitted to apprehend him and allowed the murderer to escape he would be guilty of the offence under Section 221, I.P.C. Section 221, I.P.C. requires that the accused as a public servant must be under a legal obligation to apprehend or keep in companyfinement a person charged with an offence and he must intentionally omit to apprehend such person or intentionally suffer such person to escape. It cannot be disputed that the appellant being a member of the police force was admittedly a public servant and he was attached as a Court Moharrir to the Court of Judicial Magistrate, Mowana on June 7, 1968. What was urged was that he was under numberlegal obligation to keep Vikram in companyfinement and therefore, was number within the -purview of Section 221, I.P.C. It is number possible to accept this companytention in view of his duties as a Court Moharrir which have been deposed to by Shri Kapoor. It has companye in evidence that it was the appellants duty as a Court Moharrir to prepare remand papers in respect of a suspect produced in a Court and it was also his duty after the Magistrate has granted bail, to issue the release order and direct the police escort to release the suspects. In fact, in pursuance of these duties the appellant had prepared the remand warrant Ex. 11 and evidence of Mohd. Shabbir P.W. 6 , shows that it was the appellant who had directed him to release Vikram. In fact, after Vikram was remanded to custody till June 20, 1968, it was the duty of the appellant to have sent him to jail custody which he failed to do and. in fact, directed Mohd Shabbir to release Vikram, which companyduct was clearly in violation of his legal obligation.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 5040- 5044 of 1985. From the Judgment and Order dated 16.12.1983 of the Madhya Pradesh High Court in Misc. Petition Nos. 297, 142, 830, 891 and 1520 of 1982. AND Civil Appeal No. 5045 of 1985. From the Judgment and Order dated 9.9.1983 of the Madhya Pradesh High Court in Misc. Petition No. 1186 of 1981. C. Mahajan, R.N. Poddar and Mrs. K. Kumarmanglam for the Appellants. Bobde, C.L. Sahu and Miss Bina Gupta for the Respondents in C.A. Nos. 5040-5044 of 1985. K. Venugopal, C.L. Sahu for the Respondent in C.A. No. 5045 of 1985. The Judgment of the Court was delivered by SEN, J. After hearing learned companynsel for the parties we had by our order dated October 11, 1985 dismissed these appeals. We number proceed to give the reasons therefor. These appeals by special leave directed against the judgments and orders of the Madhya Pradesh High Court dated September 9, 1983 and December 16, 1983 raise a question as to whether a member of the State Civil Service Executive on his temporary appointment by the State Government under r. 9 of the Indian Administrative Service. Cadre Rules, 1954 for a period exceeding six months, is entitled to have his companytinuous period of officiation in a senior post, to be taken into account in reckoning the year of allotment under r.3 3 b of the Indian Administrative Service Regulation of Seniority Rules, 1954. That depends on whether prior approval of the Central Government or the Union Public Service Commission to such appointment under sub-r. 2 of r.9 of the Cadre Rules for the appointment of a number-cadre officer to a cadre post by the State Government is a companydition precedent for a valid appointment under r.9 of the Cadre Rules. Further, the question is whether the existence of a vacancy in the cadre strength of promotees, i.e. over-utilization of the State Deputation Reserve Quota is a relevant factor to be taken into companysideration in determining the period of companytinuous officiation in a senior post on the cadre till the Central Government accords its approval to such appointment under r.9 of the Cadre Rules in assigning the year of allotment under r. 3 3 b of the Seniority Rules. Facts in these cases are more or less similar. It will suffice for our purposes first to state the facts in K.L. Jains case. The respondent was a substantive member of the State Civil Service Executive in the State of Madhya Pradesh. He was on November 7, 1975 temporarily appointed by the State Government to the post of a companylector which is a senior post on the Cadre under r. 9 of the Indian Administrative Service Cadre Rules, 1954 and had been companytinuously officiating on such post w.e.f. November 10, 1975 till the Central Government accorded its approval on October 1, 1976, for his appointment in the Indian Administrative Service. The promotion quota of number-cadre officers to cadre posts was 50 prior to October 1, 1976 but was on that date increased to The respondent was formally appointed to the Indian Administrative Service by the Central Government on December 7, 1976. The State Government of Madhya Pradesh by letter dated February 3, 1979 informed the respondent that he was assigned 1972 as the year of allotment by the Central Government. Feeling aggrieved, the respondent filed a petition before the High Court under Art. 226 of the Constitution for an appropriate writ, direction or order, directing that he should instead be assigned 1971 as his year of allotment under r. 3 3 b of the Seniority Rules and his seniority should be fixed on that basis, and that on refixation of his seniority, he be allowed the companysequential reliefs to which he may be entitled. The appellant companytested the respondents claim on three grounds, namely i he was number entitled to companynt his companytinuous officiation in the senior post of Collector from November 10, 1975 as his appointment to such post in the cadre was number approved by the Central Government till October 1, 1976 i.e., for any period prior to October 1, 1976 ii there was numbervacancy in the cadre strength of promotees for any period prior to October 1, 1976 and therefore the appointment of the respondent to the post of Collector for the period from November 10, 1975 to September 30, 1976 had to be ignored and iii there was overutilization of the State Deputation Reserve Quota and for this reason also his companytinuous officiation on the senior post of a Collector companyld number be taken into account. P. Singh, CJ speaking for himself and Faizanuddin, J in K.L. Jain v. Union of India, 1984 MPLJ 284 held that though there was numberspecific approval of the Central Government to the appointment of the respondent, such prior approval was number a companydition precedent for a valid appointment to a cadre under r.9 of the Cadre Rules and therefore the companytinuous officiation by the respondent as the Collector for period from November 10, 1975 to September 30, 1976 companyld number be ignored on the ground that the appointment was number specifically approved by the Central Government. Further, it was held that the existence of a vacancy in the promotion quota of cadre officers was number a companydition pre-requisite for making an appointment of a number-cadre officer to a cadre post under r.9 of the Cadre Rules and therefore, merely because there was over-utilization of the State Deputation Reserve Quota had numberbearing on the question of the validity of the appointment of the respondent on a cadre post. It also held that the companydition of approval by the Central Government required by the proviso to cl. 1 of s.III of Schedule II of the Indian Administrative Service Pay Rules, 1954 was only for any fixation and it had numberhing to do with the validity of the officiation of a number-cadre cadre officer in a cadre post under r.9 of the Cadre Rules. It, accordingly, allowed the writ petition filed by the respondent and held that his companytinuous officiation in a senior post of Collector from November 10, 1975 was in accordance with r.9 of the Cadre Rules and the same must enure for his benefit to give him seniority under r.3 3 b of the Seniority Rules. In the companynected case, G.N. Tiwari and 19 other members of the Madhya Pradesh cadre of the Indian Administrative Service who had similarly been deprived of the benefit of their companytinuous officiation on their temporary appointment to the cadre post of a Collector by the State Government under r.9 of the Cadre Rules and had been assigned the year 1967 instead of 1966, the year 1968 instead of 1967, or the year 1972 instead of 1971 as the year of allotment under r. 3 3 b of the Seniority Rules also moved the High Court by a petition under Art. 226 of the Constitution based on the same grounds, and prayed for the grant of similar relief. A Division Bench companysisting of J.S. Verma and C.P. Sen, JJ following the decision in K.L.Jains case allowed the writ petition filed by the aforesaid respondents and directed that they be assigned the years 1966, 1967 and 1971 as their years of allotment respectively under r. 3 3 b of the Seniority Rules, as claimed by them, and their placement in the seniority list be accordingly revised. It expressed the hope that the State Government and the Central Government would give them all the companysequential reliefs to which they may be entitled on re-fixation of their seniority. Against the two judgments, the Union of India has preferred these appeals by special leave. In support of the appeal, learned companynsel for the appellant advanced two companytentions, namely 1 The respondents were number entitled to have their entire period of companytinuous officiation in a senior post under r.9 of the Cadre Rules taken into account in assigning the years of allotment under r. 3 3 b of the Seniority Rules as their temporary appointment to such senior post in the cadre was subject to the prior approval of the Central Government under sub-r. 2 of r.9 of the Cadre Rules, and 2 They as number-cadre officers were number entitled to appointment to the cadre post of a Collector because there was numberactual vacancy in the cadre strength of promotees. It is urged that the power of the Central Government under sub-r. 3 of r.9 of the Cadre Rules to direct termination of appointment of a person other than a cadre officer appointed for a period exceeding three months is a larger power and necessarily carries within its ambit, the lessor power to direct curtailment of the period of officiation. It is further urged that the respondents were number entitled to the benefit of companytinuous officiation in a senior post to be taken into account in reckoning their year of allotment because there was numbervacancy in the cadre strength of promotees. In fact, there was over-utilization of State Deputation Reserve Quota. We are afraid, we cannot accept this line of reasoning. The assignment of the year of allotment is governed by r.3 of the Indian Administrative Service Regulation of Seniority Rules, 1954. The relevant clause applicable to the respondents is that companytained in r. 3 3 b which reads as follows 3 3 . The year of allotment of an officer appointed to the Service after the companymencement of these rules shall be - a x x x x Where the officer is appointed to the Service by promotion in accordance with sub-rule 1 of rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of these rules who officiated companytinuously in a senior post from a date earlier than the date of companymencement of such officiation by the former Provided that the year of allotment of an officer appointed to the Service in accordance with subrule 1 of rule 8 of the Recruitment Rules who started officiating companytinuously in a senior post from a date earlier than the date of which any of the officer recruited to the Service in accordance with rule 7 of these Rules so started officiating, shall be determined ad hoc by the Central Government in companysultation with the State Government companycerned Explanation 1 - In respect of an officer appointed to the Service by promotion in accordance with sub-rule 1 of rule 8 of the Recruitment Rules, the period of his companytinuous officiation in a senior post shall, for the purposes of determination of his seniority, companynt only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post, whichever is latter Explanation 2 - An officer shall be deemed to have officiated companytinuously in a senior post from a certain date if during the period from that date to the date of his companyfirmation in the senior grade he companytinues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement. It is companymon ground that the post of Collector is a senior post. It is number disputed that the respondents were companytinuously officiating in a senior post for long periods prior to the date of their appointment to the Indian Administrative Service. It is also number in dispute that if the entire period of companytinuous officiation by the respondents in the senior posts of Collectors were taken into account, they would be entitled to the year 1966 instead of 1967, the year 1967 instead of 1968 and the year 1971 instead of 1972 as the year of allotment to them in accordance with r. 3 3 b of the Seniority Rules. The appointment of the respondents to the senior post of Collector was made in accordance with r.9 of the Indian Administrative Service Cadre Rules, 1954. It is in these terms Temporary appointment of number-cadre officers to cadre posts - A cadre post in a State may be filled by a person who is number a cadre officer if the State Government is satisfied - a that the vacancy is number likely to last for more than three months, or b that there is numbersuitable cadre officer available for filling the vacancy. Where in any State a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the State Government shall forthwith report the fact to the Central Government together with the reasons for making the appointment. On receipt of a report under sub-rule 2 or otherwise, the Central Government may direct that the State Government shall terminate the appointment of such person and appoint thereto a cadre officer, and where any direction is so issued, the State Government shall accordingly give effect thereto. Where a cadre post is likely to be filled by a person who is number a cadre officer for a period exceeding six months, the Central Government shall report the full facts to the Union Public Service Commission with the reasons for holding that numbersuitable officer is available for filling the post and may in the light of the advice given by the Union Public Service Commission give suitable direction to the State Government companycerned. It is plain upon a companystruction of r.9 that under subr. 1 the State Government can direct that a cadre post may be filled by a person who is number a cadre officer if it is satisfied that the vacancy is number likely to last for more than three months or that there is numbersuitable cadre officer available for filling the vacancy. In these cases, admittedly, the appointments of each of the respondents who was a person other than a cadre officer to the senior post of Collector in the cadre lasted for nearly a year or more and therefore exceeded the period of three months companytemplated by sub-r. 1 . Such an appointment companyld be made by the State Government on being satisfied that there was numbersuitable officer for filling the vacancy. It is number averred in the returns filed by the State Government or the Central Government in the High Court that this companydition was number satisfied when the respondents were so appointed. Under subr. 2 , where in any State a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the State Government is required to forthwith report the fact to the Central Government together with the reasons for making the appointment. From the documents filed by the State Government in the High Court, it appears that such a report was made by the State Government to the Central Government on June 26, 1976. The Central Government by letter dated February 19, 1977 asked for a companysolidated proposal for approval of officiation of number-cadre officers on cadre posts for the half year ending September 30, 1976. In companypliance therewith, the State Government sent the required proposal on March 29, 1977. Under sub-r. 3 , on receipt of a report under sub-r. 2 or otherwise, the Central Government may direct that the State Government shall terminate the appointment of such person and appoint thereto a cadre officer, and where any direction is so issued, the State Government shall accordingly give effect thereto. Under sub-r. 4 , where a cadre post is likely to be filled by a person who is number a cadre officer for a period exceeding six months, the Central Government is required to report the full facts to the Union Public Service Commission with the reasons for holding that numbersuitable officer is available for filling the post and may, in the light of the advice given by the Union Public Service Commission, give suitable direction to the State Government companycerned in that behalf. Interpreting the provisions of sub-rules 2 , 3 and 4 , the High Court in K.L. Jains case, rightly observed In the instant case, the Central Government never directed the State Government to terminate the petitioners appointment. It is also number the case that the U.P.S.C. tendered any advice to the Central Government that the appointment be terminated. It is true that there is a specific approval of the Central Government to the appointment of the petitioner but that is number a companydition precedent for a valid appointment under Rule 9 and the petitioners officiation in a senior cadre post from 10th November 1975 to 30th September 1976 cannot be ignored on the ground that the appointment was number specifically approved by the Central Government. The petitioners said officiation cannot also be ignored on the ground that there was numbervacancy during this period in the promotion quota of the cadre officers. The High Court held that prior approval of the Central Government was number a companydition precedent to the appointment of a number-cadre officer to a cadre post under r.9 of the Cadre Rules. It further held that the existence of a vacancy in the promotion quota was number a pre-requisite for making such an appointment. The appointment of the respondent K.L. Jain to the Indian Administrative Service made by the Central Government on December 7, 1976 was on a post when there was admittedly a vacancy in the promotion quota of number-cadre officers, but his temporary appointment by the State Government to the post of Collector which is a senior post in the cadre under r.9 on November 7, 1975 was at a time when there was numbersuch vacancy in the promotion quota. It appears that the promotion quota of number-cadre officers to cadre posts was 50 prior to October 1, 1976 and was on that date increased to 56. Since the existence of a vacancy was number a companydition precedent for making an appointment under r. 9 of a number-cadre officer to a cadre post, the High Court held that the respondents officiation from November 10, 1975 to September 30, 1976, companyld number be held to be invalid or ignored. On the same reasoning, it held that the fact that the State Government had over-utilized the Deputation Reserve Quota during the aforesaid period, companyld have numberbearing on the question of validity of his appointment on the cadre post. It then added It may be that if the Central Government thought that the State Deputation Reserve Quota which gave rise to a vacancy of a cadre post, it companyld have directed the State Government to terminate the petitioners appointment but such a companyrse was never adopted. As the Central Government did number issue any direction to the State Government to terminate the petitioners appointment, the appointment has to be held to be valid and given effect to. In that view, the High Court held that the respondents companytinuous officiation in a senior post from November 10, 1975 was in accordance with r.9 of the Cadre Rules and the same must enure for his benefit for reckoning his seniority under r.3 3 b of the Seniority Rules. Further, it held that the requirement of approval of the Central Government as companytained in the proviso to cl. I of s. III of Schedule II of the Indian Administrative Service Pay Rules, 1954 cannot be imported into r.9 of the Cadre Rules or r.3 3 b of the Seniority Rules. The view expressed by the High Court in K.L. Jains case was followed with approval in the later case of G.N. Tiwari Ors. v. Union of India. Where a person other than a cadre officer is appointed to the Service by promotion in accordance with sub-r. 1 of r.8 of the Recruitment Rules, the year of allotment of the junior-most amongst the officers recruited to the Service in accordance with r.7 of the Rules who officiated companytinuously in a senior post from a date earlier than the companymencement of such officiation by the former, is the determinative factor in allocation of the year of allotment under r. 3 3 b of the Seniority Rules. Proviso thereto enjoins that the year of allotment of an officer appointed to the Service in accordance with subr. 1 of r.8 of the Recruitment Rules who started officiating companytinuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service in accordance with r.7 so started officiating, shall be determined and hoc by the Central Government in companysultation with the State Government companycerned. Explanation 1 to r.3 3 b interdicts that in respect of an officer appointed to the Service by promotion in accordance with sub-r. 1 of r.8 of the Recruitment Rules, the period of his companytinuous officiating in a senior post shall, for purposes of determination of his seniority, companynt only from the date of inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post, whichever is later. Explanation provides that an officer shall be deemed to have officiate companytinuously in a senior post from a certain date if during the period from the date of the date of his companyfirmation in the senior post he companytinued to hold without any break or reversion the senior post otherwise than as a purely temporary or local arrangement. In these cases, the respondents who were appointed to the service by promotion in accordance with sub-r. 1 of r.8 of the Recruitment Rules were entitled under Explanation I to have the entire period of companytinuous officiation in a senior post, for the purpose of determination of their seniority, companynted from the date of inclusion of their names in the Select List or from the date of his officiating appointment to such senior post, whichever was later. They were also entitled by reason of the legal fiction companytained in Explanation 2 to have the entire period of their companytinuous officiation without a break in a senior post from the date of their officiating appointment to such senior post till the date of their appointment into the Service, companynted for purposes of determining their year of allotment under r. 3 3 b of the Seniority Rules. It cannot be said that their officiation in a senior post on the cadre for the periods in question was merely fortuitous or stop-gap. We are number impressed with the submission that the power of the Central Government under sub-r. 3 to direct termination of appointment of a person other than a cadre officer to a cadre post for a period exceeding three months or more was a larger power and carried with it the power to direct curtailment of the period of officiation of such person. Obviously, the power to direct termination of the appointment of a number-cadre officer in a senior post is distinct from the power to direct curtailment of his period of officiation. There is numbersuch provision made in the Cadre Rules empowering the Central Government to direct the curtailment of the period of officiation of a number-cadre officer on a cadre post for purposes of reckoning his year of allotment under r.3 3 b of the Seniority Rules. Such a power cannot be spelled out from sub-r. 3 of r.9 of the Cadre Rules which companyfers power on the Central Government to direct termination of appointment of a number-cadre officer to a cadre post. In the absence of such a provision, the impugned order passed by the Central Government appointing October 1, 1976 as the date from which the period of officiation is to be reckoned for determining the year of allotment under r.3 3 b of the Seniority Rules was wholly arbitrary and capricious and therefore rightly struck down by the High Court. The failure of the Central Government to give a direction under sub-r. 3 of r.9 to terminate the appointment of the respondents implies that their companytinuous officiation on a cadre post had the tacit approval of the Central Government, particularly in view of the fact that the Central Government by letter dated February 19, 1977 required the State Government to submit a companysolidated proposal for approval of officiation of number-cadre officer on cadre posts for the half year ending September 30, 1976. This was followed by a report of the State Government dated March 29, 1977. The Central Government by order dated October 1, 1976 accorded its approval to their appointment in the Indian Administrative Service. Furthermore, the respondents as number-cadre officers companyld number be denied the benefit of companytinuous officiation in a senior post merely because the State Deputation Reserve Quota was over utilised vide Harjeet Singh v. Union of India Ors., 1980 3 S.C.R. 459 and Amrik Singh Ors. v. Union of India Ors., 1980 3 S.C.R. 485. The result therefore is that the appeals must fail and are dismissed. There shall be numberorder as to companyts. We are companystrained to observe that although the judgment of the High Court in K.L. Jains case was rendered as far back as September 9, 1983 and that in the case of N. Tiwari on December 16, 1983, the directions issued by the High Court have number been implemented so far.

original jurisdiction writ petition c number 715 of 1990. under article 32 of the companystitution of india. gobinda mukhoty r.k. jain yusuf h. machhale ms. k. amreswari n.p r.n. sachthey n.n. goswamy ashwani kumar mukesh k.giri a.k. sharma b.k. prasad n.p ms. anil katiyar ms. niranjana singh s. wasim a. qadri b.k. prasadnafis ahmad siddiquiasoar ali khana.s. bhasme m.s. anam sakil ahmed syed anil k. jha raj kumar mehta k. agnihotri b.r. jad anip sachthey syed ali ahmed syed tanweer ahmad mohan pandey m. veerappa k.h. numberin singh s. k. mehta dhruv mehta aman vachher p. k. manumberar b. singh aruneshwar gupta and r.mohan for the appearing parties. the judgment of the companyrt was delivered by m. sahai j. imamsincharge of religious activities of the mosque 1 have approached this companyrt by way of this representative petition under article 32 of the constitution for enforcement of fundamental right against their exploitation by wakf boards. relief sought is direction to central and state wakf boards to treat the petitioner as employees of the board and to pay them basic wages to enable them to survive. basis of claim is glaring disparity between the nature of work and amount of remuneration. higher pay scale is claimed for degree holders. imams perform the duty of offering prayer namaz for congregation in mosques. essentially the mosque is a centre of companymunity worship where muslims perform ritual prayers and where historically they have also gathered for political social and cultural functions. 2 the functions of the mosque is summarised by the 13th century jurist ibn taymiyah as a. place of fathering where prayer was celebrated and when public affairs were companyducted. 3 all mosques are where muslim men on an equalitarian basis rich or poor numberle or humble stand in rows to perform their prayers behind the imam 4 imams are expected to look after the cleanliness of mosque call azans from the balcony of the minarets to the whole religious meetings and propagate the islamic faith. they are expected to be well versed in the shariat the holy quran the hadiths ethics philosophy social econumberic and religious aspects. imam or prayer leader is the most important appointee. in the early days the ruler himself filled this role he was leader imam of the government of war and of the companymon salat ritual prayer . under the abbasids when the caliph numberlonger companyducted prayers on a regular basis a paid imam was appointed. while any prominent or learned muslim can have the honumber of leading prayers each mosque specifically appoints a man well versed in theological matters to act as its imam. he is in charge of the religious activities of the mosque and it is his duty to conduct prayers five times a day in front of mihyab. 5 on nature of the duties performed by the imams there is no dispute. but both the union of india and various state wakf boards of different states which have put in appearance in response to the numberice issued by this companyrt have seriously disputed the manner of their appointment right to receive any payment and absence of any relationship of master and servant. it is stated that the imams or muazzins are appointed by the mutwallis. according to them the wakf boards have numberhing to do either with their appointment or working. it is claimed that under lslamic religious practice they are number entitled to any emoluments as a matter of right as the islamic law ordains the imams to offer voluntary service. they are said to be paid some money out of the donations received in mosques or by the mutwallis of the boards. their job is stated to be honumberary and number paid. nature of duty under islamic sharjat is stated to lead prayers which is performed voluntarily by any suitable muslim without any monetary benefit. some of the affidavits claim that they are appointed by people of the locality. the union government has specifically stated that the islam does number recognise the companycept of priesthood as in other religions and the selection of imams is the sole prerogative of the members of the local companymunity or the managing committee if any of the mosque. according to karnataka wakf board imamate in the mosque is number companysidered to be employment. the allegation of the petitioners that due to meagre payment they are humiliated or insulted in the society is denied and it is claimed that they are respectable persons who carry on the duty of imamate as a part of religious activity and number for earning bread and butter. the delhi wakf board pointed out that the honumberarium is paid to an imam as a companysideration for his five time presence in the mosque regularly and punctually. the board has denied any right to exercise an authority over the mosque where imams and muazzins are appointed by the mutwallis or by the managing companymittees. it is stated that holding of a certificate from a registered institution to enable a person to lead the prayer is number necessary as the only requirement for being an imam under the sharjat is to 1 to 5 the encyclopedia of religion vol. 10 p- 121-122 have a thorough knumberledge of the holy quaran and the rites rules and obligations required for offering prayers according to the principles laid down by the kuran and sunnah. the affidavit filed on behalf of wakf board has pointed out that mosque can be categorised in five categories one which are under direct companytrol or management of the government such as mecca masjid or the mosque situated in public garden which are number governed or regulated by the muslim wakf board second mosques which are under the direct management of wakf boardthird mosques which are under the companytrol of mutwallis under various wakfs according to the wishes of the wakf as the creator of the wakf fourth mosques which are number registered with the wakf board and are managed by local inhabitants and are under the management of the public who offer prayers regularly in a particular mosqueand fifth mosques which are number managed by mutwallis or the muslin-is of the locality. it is claimed that imams of fourth and fifth category are number regular and any muslim can lead the prayers whereas under the third category mosques are having regular imams. financial difficulty of the wakf board to meet the demand has also been pointed out. the pondicherry wakf board has pointed that there is number even one employee except a peon working therein and therefore it is number possible to meet the demand of the imam. it is also claimed that the board has numbercontrol over the pesh-imams as they are companysidered to be well dignified personality of the society and they are given due respect by the muslim community as a whole. in the companynter-affidavit filed by the punjab wakf board it has been stated that imams of mosques in punjab were being paid on basis of their qualification. imam nazara muntaii grade are in the scale of rs. 380-20- 58o25-830-30-980 whereas imams hafiz wasti grade are paid rs. 445-20-645-25895-30-1045 and imam alim muntaii grade are paid rs. 520-20-720-25-97030-1120. they are also paid rs.30 per month medical allowance and muazzins are paid rs. 310 per month. these scales were revised in 1992. according to them imams of all the mosques in punjab haryana and himachal pradesh which companye under the punjab wakf board are being paid regularly and they are treated as regular employees. the sunni central wakf board of uttar pradesh filed only a written submission stating that all the sunni mosques were managed by mutwallis of the companycerned managing companymittees and number by the wakf board. the mosque differs from a church or a temple in many respects.ceremonies and service companynected with marriages and birth are never performed in mosques. tile rites that are important and integral functions of many churches such as confessions penitencies and companyfirmations do number exist in the mosques. 6 number any offerings are made as is companymon in hindu temples. in muslims companyntries mosques are subsidized by the states hence numbercollection of money from the community is permitted. the ministry of wakf endowments appoints the servant preachers and readers of the koran. mosques in number-muslim companyntries are subsidised by individuals. they are administered by their founder or by their special fund. a caretaker is appointed to keep the place clean. the muazzin cells to prayer five times a day from the minaret. in our companyntry in 1954 wakf act was passed by the parliament for better administration and supervision of wakfs. to achieve the objective of the act section 9 provides for establishment of a wakf board the functions of which are detailed in section 15. sub-section 1 of it reads as under subject to any rules that may be made under this act the general superintendence of all wakfs in state in relation to all matters except those which are expressly required by this act to be dealt with by the wakf companymissioner shall vest in the boar established for the state and it shall be the duty of the board so to exercise its powers under this act as to ensure that the wakfs under its superintendence are properly maintained companytrolled and administered and the income thereof is duly applied to the objects and for the purposes for the objects and for the purposes for which such wakfs were created or intended provided that in exercising its powers under this act in respect of any wakf the board shall act in companyformity with the directions of the wakf the purposes of the wakf and any usage or custom of the wakf sanctioned by the muslim law. clause b of sub-section 2 obliges the board to ensure that the income and other property of a wakf are applied to the objects and for the purposes for which that wakf was created or intended. the board is vested number only with supervisory and administrative powers over the wakfs but even the financial power vests in it. one of its primary duties is to ensure that the income from the wakf is spent on carrying out the purposes for which wakf was created. mosques are wakfs and are required to be registered under the act over which the board exercises companytrol. purpose of their creation is companymunity worship. namaz or salat is the mandatory practice observed in every mosque among the five pillars arkan so. rukn of islam it holds the second most import position immediately after the declaration of faith shahadah 8 . the 6 7 encyclopedia britannica vol. 18 p. 883 the encyclopedia of religion vol. 13 p. 20-21 principal functionary to undertake it is the imam. the objective and purpose of every mosque being companymunity worship and it being the obligation of board under the act to ensure that the objective of the wakf is carried on the board cannumber escape from its responsibility for proper maintenance of religious service in a mosque. to say therefore that the board has numbercontrol over the mosque or imam is number companyrect. absence of any provision in the act or the rules providing for appointment of imam or laying down condition of their service is probably because they are number considered as employees. at the same time it cannumber be disputed that due to change in social and econumberic set-up they too need sustenance. nature of their job is such thatthey may be required to be present in the mosque nearly for the whole day. there may be some who may perform the duty as part of their religious observance. still others may be ordained by the companymunity to do so. but there are large number of such persons who have numberother occupation or profession or service for their livelihood except doing duty as imam. what should be their fate? should they be paid any remuneration and if so how much and by whom? according to the board they are appointed by the mutwallis and therefore any payment by the board was out of question. prima.facie it is number companyrect as the letter of appointments issued in some states are from the board. but assuming that they are appointed by the mutwallis the board cannumber escape from its responsibility as the mutwallis too u s. 36 of the act are under the supervision and companytrol of the board. in series of decisions rendered by this companyrt it has been held that right to life enshrined in article 21 means right to live with human dignity. it is too late in the day therefore to claim or urge that since imams perform religious duties they are number entitled to any emoluments. whatever may leave been the ancient companycept but it has undergone change and even in muslim companyntries mosques are subsidised and the imams are paid their remuneration. we are therefore number willing to accept the submission that in our set up or in absence of any statutory provision in the wakf act the imams who look after the religious activities of mosques are number entitled to any remuneration. much was argued on behalf of union and the wakf boards that their financial position was number such that they can meet the obligations of paying the imams as they are being paid in the state of punjab. it was also urged that the number of mosques is so large that it would entail heavy expenditure which the boards of different states would number be able to bear. we do number find any companyrelation between the two. financial difficulties of the institution cannumber be above fundamental right of a citizen. if the boards have been entrusted with the responsibility of supervision and administering the wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading companymunity prayer in a mosque the very purpose or which it is created. in the circumstances we allow this petitions and issue following directions the union of india and the central wakf board will prepare a scheme within a period of six months in respect of different types of mosques some detail of which has been furnished in the companynter affidavit filed by the delhi wakf board. mosques which are under companytrol of the government shall number be governed by this order. but if their imams are number paid any remuneration and they have numberindependent income. the government may fix their emoluments on the basis as the central wakf board may do for other mosques in pursuance of our order. for other mosques except those which are numberregistered with the board of their respective states or which are number manned by members of islamic faith the scheme shall provide for payment of remuneration to such imams taking guidance from the scale of pay prevalent in the state of punjab and haryana. the state board shall ascertain income of each mosque the number and nature of imams required by it namely full time or part time. for the full time punjab wakf board may be treated as a guideline. that shall also furnish guideline for payment to part time imam in all those mosques where full time imams are working they shall be paid the remuneration determined in pursuance of this order. part time and honumberary imam shall be paid such remuneration and allowance as is determined under the scheme. the scheme shall also take into account those mosques which are small or are in the rural area or are such as mentioned in the affidavit of pondichery board and have no source of income and find out ways and means to raise its income. the exercise should be companypleted and the scheme be enforced within six months.

Heard the learned Counsel for the parties. In Civil Appeal No. 236/1991, this Court passed the following order on 20th August 1997 The question in these cases is whether the sludge manufactured by the Asiatic Oxygen Limited is marketable or number. The Tribunal has number given any finding on this question. We set aside the order of the Tribunal and remand the case back to the Tribunal to give a decision on the question of marketability of sludge. The Tribunal will, thereafter, decide whether it is an excisable goods and, if so, under which heading will it fall? The parties will be at liberty to adduce evidence to prove in support of their companytention. The appeals are disposed of. Each party will pay their own companyts. After remand also the appellant has number led any evidence to companyclusively prove that the sludge which was manufactured by the appellant was in any way marketable. The Tribunal after companysidering the evidence on record arrived at the companyclusion that Acetylene gas is manufactured by the interaction of calcium carbide with water in a chamber specifically made for the purpose. While the gas generated is drawn from the top of the chamber the residual sludge mixed with the water in liquid state is discharged at intervals from the bottom of the chamber into the drain for being companylected into pits. That sludge thereafter is removed from the factory. It arrived at the companyclusion that the said sludge is number marketable and, therefore, numberexcise duty can be levied.

Dr. ARIJIT PASAYAT,J. Challenge in this appeal is to the order passed by the learned single Judge of the Madras High Court rejecting the petition filed under Sec.482 of the Code of Criminal Procedure, 1973 in short the Code . Background facts in short are as follows Sukanya hereinafter referred to as the companyplainant was married with Sunder Babu-appellant No.1. Appellant No. 2-Mr. Venugopal and Mrs. Ramathilagam appellant No.3 are the parents of Sunder Babu. A.4-Rajinishree is his sister and Andalammal is his maternal grandmother. The marriage took place on 25/11/1998. The -2- appellant No.1 left for USA on 1/7/1999. The companyplaint was filed on 6/2/2000 alleging companymission of offence punishable under Sec.498A of the Indian Penal Code, 1860 in short the IPC and Sec.4 of the Dowry Prohibition Act, 1961 in short D.P. Act . The companyplaint was treated as First Information Report and investigation was undertaken. On companypletiion of investigation charge-sheet was filed on 8/6/2000. A divorce petition was filed by the companyplainant which appears to have been granted ex parte on 12/7/2001. According to the appellants, companyplainant- Sukanya has remarried on 24/8/2002. It was a stand of the appellant that the companyplaint filed was numberhing but an abuse of the process of law. The allegations were unfounded. There was numberbasis for making the allegations. The appellant No.1 had left for USA after about six months of the marriage. Long thereafter on 6/2/2000, the companyplaint was filed. No explanation for the delayed lodging of the companyplaint was offered. In essence, it was submitted that -3- the companytinuance of the proceedings will be an abuse of the process of law. The prosecuting agency before the High Court companytested the petition filed under Sec.482 Cr.P.C. taking the stand that a bare perusal of the companyplaint discloses companymission of alleged offences and therefore it is number a case which needed to be allowed. The High Court accepted the stand of the respondent-State and dismissed the application. In support of the appeal learned companynsel for the appellant submitted that the factual scenario indicated above and even a cursory glance of the companyplaint petition shows that the same was numberhing but an attempt to falsely implicate the accused persons. Learned companynsel for the respondent State supported the judgment. Though the scope for interference while exercising jurisdiction under Sec.482 Cr.P.C. is limited, but it can be made in cases as spelt out in the case of Bhajan Lal. The illustrative examples laid down therein are as follows -4- 1 Where the allegations made in the first information report or the companyplaint, even if they are taken at their face value and accepted in their entirety do number prima facie companystitute any offence or make out a case against the accused. 2 Where the allegations in the first information report and other materials, if any, accompanying the FIR do number disclose a companynizable offence, justifying an investigation by police officers under Sec.156 1 of the Code except under an order of a Magistrate within the purview of Sec.155 2 of the Code. 3 Where the uncontroverted allegations made in the FIR or companyplaint and the evidence companylected in support of the same do number disclose the companymission of any offence and make out a case against the accused. 4 Where, the allegations in the FIR do number companystitute a companynizable offence but companystitute only a number-cognizable offence, numberinvestigation is permitted by a police officer without an order of a Magistrate as companytemplated under Sec. 155 2 of the Code. -5- 1 Where the allegations made in the FIR or companyplaint are so absurd and inherently improbable on the basis of which numberprudent person can ever reach a just companyclusion that there is sufficient ground for proceeding against the accused. 2 Where there is an express legal bar engrafted in any of the provisions of the Code or the companycerned Act under which a criminal proceeding is instituted to the institution and companytinuance of the proceedings and or where there is a specific provision in the Code or the companycerned Act, providing efficacious redress for the grievance of the aggrieved party. 3 Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Even a cursory perusal of the companyplaint shows that the case at hand falls within the category 7 of the illustrative parameters highlighted in Bhajan Lals case supra . -6- The parameters for exercise of power under Sec.482 have been laid down by this Court in several cases. The Section does number companyfer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, i to give effect to an order under the Code, ii to prevent abuse of the process of companyrt, and iii to otherwise secure the ends of justice. It is neither possible number desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All companyrts, whether -7- civil or criminal possess, in the absence of any express provision, as inherent in their companystitution, all such powers as are necessary to do the right and to undo a wrong in companyrse of administration of justice on the principle quando lex aliquid alicui companycedit, companycedere videtur et id sine quo res ipsae esse number potest when the law gives a person anything it gives him that without which it cannot exist . While exercising powers under the section, the companyrt does number function as a companyrt of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone companyrts exist. Authority of the companyrt exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the companyrt has power to prevent abuse. It would be an abuse of process of the companyrt to allow any action which would result in injustice and prevent promotion of justice. In exercise -8- of the powers companyrt would be justified to quash any proceeding if it finds that initiation companytinuance of it amounts to abuse of the process of companyrt or quashing of these proceedings would otherwise serve the ends of justice. As numbered above, the powers possessed by the High Court under Sec.482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should number be exercised to stifle a legitimate prosecution. The High Court being the highest companyrt of a State should numbermally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has number been companylected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of companyrse, numberhard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of -9- quashing the proceeding at any stage. See Janata Dal v. H.S. Chowdhary 1992 SCC 305 , Raghubir Saran Dr. v. State of Bihar AIR 1964 SC1 and Minu Kumari v. State of Bihar 2006 4 SCC 359 .

THE 10TH DAY OF MAY, 1996 Present Honble Mr.Justice K.Ramaswamy Honble Mr.Justice G.B.Pattanaik B.Babu, B Krishna Prasad and P.Parmeshwaran, Advs. for the appellants. O R D E R The following Order of the Court was delivered Union of India Ors. V. M s. Sharma Coal Co. O R D E R Leave granted. Though the respondents have been served, numbere appears either in person or through the companynsel. We have heard companynsel for the appellant. This appeal arises from the order of the Division Bench of the Guwahati High Court in a batch of writ petitions being Civil Rule No.1153/83 and batch passed on dated July 30, 1990. The Railway administration had prepared a preferential traffic scheme PTS , by general order No.71 categorizing the priority articles for carriage by railways and allotted different priorities which are made in alphabetic orders A to E. Sponsored companyl movement was mentioned in Category C priority and priority E would include number-sponsored companyl. Subsequently by proceedings dated March 1, 1989 the Railways modified its earlier scheme and issued general PTS Order No.77 with effect from April 1, 1989 under which priorities were redetermined. It would appear that subsequently number-priorities companyl item E was deleted from the priority scheme. When the respondents and others challenged its validity on the anvil of Art.19 g of the Constitutions the Division Bench of the High Court without disturbing the validity of the order had given direction observing that after all the priorities enumerated in the scheme are exhausted and if the wagons remains unutilised, the unutilised wagons may be kept at the disposal of number-priority articles for carriage. Thus this appeal came to be filed by special leave. It is seen that in order No.75 priorities A to E were made which included sponsored companyl within the meaning of the order and number-sponsored companyl within the meaning of the order and number-sponsored companyl provided in priority E for allotment of wagon. With regard to number-Priority item E, it subsequently deleted as mentioned in paragraph E of the special leave petition which reads as the Order No.77 relates to PTS for allotment of wagons which came into force from 16.7.86. but number sponsored companyt referred to in priority E of PTS No.75 was removed. It would thus be seen that numberpriority companyl came to be removed from the priorities mentioned in Items A to E. Therefore, the High Court obviously was of the intention to direct that if after the wagons allotted for movement to priority articles remained available, the same may be allotted for number-priority articles for carriage.

Despite service, numbere appears for respondent number. 2 to 9. Leave granted. Both the learned Single Judge as well as the Division Bench of the High Court have companycluded against the appellant mainly on the ground that the possession, as required under Section 14 5 of the Mysore Land Reforms Act, 1961, as it then existed, was number handed over in favour of the landlord. Before proceeding further it is relevant to numbere the provisions of Sections 14 1 and 14 5 of Mysore Land Reforms Act, 1961 number called as Karnataka Land Reforms Act, 1961 as they existed in the year 1961-1970, the relevant years for the purpose of this case- Signature Not Verified Resumption of land from tenants Digitally signed by MAHABIR SINGH Date 2018.04.11 Notwithstanding anything companytained in 132730 IST Reason Sections 22 and 43, but subject to the provisions of this Section and of Sections 15, 16, 17, 18, 19, 20 and 41, a landlord may, if he bona fide requires land, other than land held by a permanent tenant, - For cultivating personally, or For any number-agricultural purpose, file with the Tribunal a statement indicating the land or lands owned by him and which he intends to resume and such other particulars as may be prescribed. On such statement being filed, the Tribunal shall, as soon as may be, after giving an opportunity to be heard to the landlord and such of his tenants and other persons as may be affected, and, having due regard to companytiguity, fertility and fair distribution of lands, and after making such other inquiries as the Tribunal deems necessary, determine the land or lands which the landlord shall be entitled to resume, and shall issue a certificate to the landlord to the effect that the land or lands specified in such certificate has been reserved for resumption and thereupon the right to resume possession shall be exercisable only in respect of the lands specified in such certificate and shall number extend to any other land. Explanation Subject to such rules as may be prescribed, the Tribunal within the jurisdiction of which the greater part of the land held by the landlord is situated shall be the Tribunal companypetent to issue a certificate under this Section. 14 5 Where a certificate is issued in respect of any land under sub-section 1 In the case of tenancies existing on the appointed day, the landlord shall make an application to the Tribunal for possession of such lands within twelve months from the date of issue of the certificate, but the tenants shall number be dispossessed before the 31st March of the calendar year succeeding the calendar year in which the application for possession is made In the case of tenancies created after the appointed day, the landlord shall number be entitled to resume the land before the expiry of five years from the date of creation of the tenancies companycerned and the tenants shall number be dispossessed before the 31st March of the calendar year succeeding the calendar year in which the application for possession is made. From the scheme of afore-mentioned provisions it is clear that the landlord companyld have filed an application if he needed the land for bona-fide use and occupation before the Tribunal seeking resumption of the land from the tenants. The order was to be passed by the Tribunal under Section 14 1 of the Act on such application being filed by the landlord. A certificate would be issued by the Tribunal in case the application of the landlord for resumption was allowed. The landlord would take possession of the property by making further application before the Tribunal with support of the certificate issued as mentioned supra. Pursuant thereto, the tenants would be dispossessed before the 31st March of the calendar year succeeding the calendar year in which the application for possession was made. In the matter on hand the companypromise entered into as well as the order accepting the companypromise passed by the Tribunal was a companyposite order made under Sections 14 1 and 14 5 of the Mysore Land Reforms Act, 1961. It is relevant to numbere herein itself that the Tribunal during the relevant point of time was to be companystituted under Section 111 of the Mysore Land Reforms Act, 1961. Section 111 as it then existed reads thus Constitution of Tribunal 1 The State Government may, by numberification, companystitute for the area specified therein a Land Tribunal companysisting of a sole member who shall be a judicial officer of the rank of a Munsiff who shall perform all the functions of the Tribunal under this Act. For any area for which a Tribunal has number been companystituted, the Munsiff having jurisdiction over such area or any other judicial officer authorised in this behalf by the State Government shall exercise all the powers and perform all the duties and functions of the Tribunal under this Act. Explanation- For the purpose of this section, a Munsiff means i in the Bombay Area, a Civil Judge Junior Division and in the Madras Area, a District Munsiff. From the afore-mentioned provision it is clear that the Land Tribunal was to be companystituted of a sole member who shall be a judicial officer. In the matter on hand also the companypromise was entered into before the Munsiff Tribunal and the same was recorded as per law. Non-compliance of the procedural aspect, as companytemplated under Section 14 5 of the Mysore Land Reforms Act, 1961 as it stood originally , is properly explained by the appellant by drawing the attention of the Court to the companypromise deed entered into between the parties on 02.03.1970. The companypromise deed reads thus- The Respondent has numberobjection for resumption of 4 acres of land southern portion of petition land. The Respondent has already given the possession of the said resumed land to the petitioner. The petitioner has numberother land except the land in dispute which is less than the ceiling limit. From the aforementioned, it is clear that it was a companyposite companypromise entered into between the parties keeping in mind Sections 14 1 and 14 5 of the Mysore Land Reforms Act, 1961 as it then stood and submitted before the Munsiff Tribunal, Dharwad in RLC 109/70. The existence of such companypromise between the parties is number disputed by the respondents at any stage. However, their only companytention is that the procedure as companytemplated under Section 14 5 of the Mysore Land Reforms Act was number followed. In the resumption proceedings RLC No. 543/1970 dated 31.10.1970, RLC No. 109 of 1970 dated 02.03.1970, RLC No. 55 of 1970 dated 17.04.1971, a companypromise petition was filed before the Munsiff Tribunal. The Tribunal passed an order in terms of the said companypromise. The parties also filed a memo in those proceedings to the effect that the petitioner herein had already been given possession of the resumed lands by the respondents 2 to 9. On the face of these documents, it would be futile exercise on the part of the petitioner to once again carry out the procedure as companytemplated under Section 14 5 of the Mysore Land Reforms Act, that too only in order to fulfil the formalities. Since the companyposite companypromise, mentioned supra, is acted upon by handing over the possession of 4 acres of property in favour of the petitioner by virtue of the order dated 2.3.1970 passed by the Munsiff Tribunal, Dharwad in RLC No. 109 of 1970, and as handing over of possession in favour of the petitioner in respect of 4 acres of land is undisputed, it can be companycluded that the petitioner was in possession of the property to the extent of 4 acres since 02.03.1970, legally. The view of the High Court, in our opinion, is hyper technical and too sophisticated under the facts of the case. It is relevant to numbere that the land is already acquired by the State Government.

N. Variava, J. These Appeals are against a Judgment dated 11th December, 1987 in a Petition filed by the 3rd Respondent before the Central Administrative Tribunal and an Order dated 22nd August, 1988 by which, pursuant to Judgment dated 11th December, 1987, the 1st Respondent has determined that Appellant is junior to 3rd Respondent and reverted him to post of Porter in the Commercial Department. The 3rd Respondent has number appeared even though served. Briefly stated the facts are as follows On 22nd July, 1972 the Appellant was appointed as a Porter on casual basis in the Transportation Traffic Department of the South Central Railway, Hubli Division. On 1st March, 1973 the Appellant was companyferred a temporary status. The 3rd Respondent was appointed as a Porter in the Commercial Department on 30th August, 1974. Rule 180 of the Railway Establishment Manual reads as under 180 Transportation Traffic Commercial Department- All railway servants in the lowest group should be eligible for companysideration for promotion to higher grades in both the Transportation and Commercial Branches. Applications should be invited from amongst candidates eligible for promotion from both the branches. All railway servants who apply will be companysidered. An adhoc seniority list will be prepared on the basis of length of companytinuous service in the grade and suitable men selected and placed on a panel for training. Systematic and adequate training and examinations or tests must precede actual promotions. As provided in this Rule Appellant and the 3rd Respondent were allowed to attend promotional companyrses to qualify as Ticket CollectOrs. In 1979 both Appellant and 3rd Respondent were allowed to companypete for selection to the post of Ticket CollectOrs. However, neither got selected. On 20th August, 1980 the Appellant got posted in the Commercial Department. They then again companypeted in 1981. On 17th June, 1981 both the Appellant and the 3rd Respondent were shown to have been selected. However, as there were numbervacancies they were number appointed. Thereafter both the Appellant and the 3rd Respondent were appointed as Ticket Collectors on adhoc basis on the companydition that this would number companyfer any right for regular appointment and that they would make room for regular appointees as and when selected and appointed. On 27th September, 1981 a provisional seniority list was prepared. In the seniority list the name of the Appellant was missing. The Appellant made a representation against the fact that his name had number been included in the seniority list. Selections for the post Ticket Collector were again made in 1982 and 1983. In 1983 the Appellant was selected along with 17 other persons. Pursuant to this selection on 28th May, 1983 the Appellant was promoted as Ticket Collector in a vacant post. It must be mentioned that in this selection the 3rd Respondent had also companypeted, but was number selected. Thereafter another selection was held in April 1986. In that selection again the 3rd Respondent appeared but was again number selected. On 25th September, 1986 the Appellant was promoted to the grade of Senior Ticket Collector. On 29th September. 1986 the 3rd Respondent who, during all this period, had been working as an adhoc Ticket Collector was reverted to make room for candidates who had been successfully empanelled. On 5th January, 1987 the 3rd Respondent challenged his reversion and the promotion order of the Appellant by filing a Petition before the Central Administrative Tribunal. On 11th December, 1987 the Central Administrative Tribunal held that the promotion of the Appellant was number proper as the Appellant was number eligible. The Central Administrative Tribunal held that the Appellant was working in the Transportation Traffic Department and the selections were to be from persons working in the Commercial Department. The Central Administrative Tribunal held that as the Appellant had been appointed in Commercial Department on 22nd August, 1980 he companyld number be companysidered to be senior to the 3rd Respondent who had been appointed on 30th August, 1974. The Central Administrative Tribunal directed the Government to prepare a fresh seniority list companyfining themselves to the Commercial Department and thereafter, if the 3rd Respondent was found senior to the Appellant, to promote him with effect from the date of promotion of the Appellant. It is this Judgment which is assailed before us. Pursuant to this Judgment the 1st Respondent has passed an Order dated 22nd August, 1988 by which seniority of Appellant is fixed below 3rd Respondent and it is proposed that Appellant be reverted to the post of Porter in the Commercial Department. Even though the 3rd Respondent had number appeared, Mr. Nagaraja and Mr. Qadri have fairly placed before us all the material and have assisted the Court. Undoubtedly, the selection was to be from persons working in the Commercial Department. However, with effect from 22nd August, 1980 the Appellant was also working in the Commercial Department. Therefore, in 1983 he was eligible to be selected. All persons who were eligible were allowed to companypete for selection. Being so eligible both the Appellant and the 3rd Respondent had companypeted. The Appellant got selected and was put on the select panel on 29th April, 1983. The 3rd Respondent had also companypeted but he was number selected or empanelled. Only persons who were empanelled companyld be appointed as Ticket CollectOrs. In such a case, the question of inter se seniority between the two persons did number arise. As 3rd Respondent was number empanelled he companyld number be promoted. Even presuming the Appellant was junior, the Appellant companyld still get promoted as he was selected. Rule 180, set out above, shows that all railway servants were eligible for companysideration of promotion. The 3rd Respondent, having failed to get selected, companyld hardly companyplain about the promotion of the Appellant. On this basis itself the Order of the Central Administrative Tribunal cannot be sustained. Even otherwise, it is to be numbered that the Appellant got promoted to the post of Ticket Collector on 28th May, 1983. He was thereafter promoted as a Senior Ticket Collector on 25th September, 1986. The Appellant was then promoted as a Train Ticket Examiner on 25th May, 1987. The 3rd Respondent chose to challenge the promotion of the Appellant as a Ticket Collector only on 11th December, 1987, i.e. after a period of 4 years. On the ground of delay and latches also the application of the 3rd Respondent should have been dismissed. In this view of the matter the impugned Order dated 11th December, 1987 is set aside.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3003 of 1988. From the Judgment and Order dated 8/9th April, 1986 of the Central Administrative Tribunal, New Delhi in R.A. No. 2 of 1986 in TA No. T-564 of 1985. AND Civil Appeal No. 889 of 1988. From the Judgment and Order dated 29.10.86 and 5.11.1986 in the Central Administrative Tribunal, Ahmedabad in O.A. No. 103 of 1986. S. Bali and L.R. Singh for the Appellant in C.A. No. 3003 of 1988. M.K. Nair for the Appellant in C.A. No. 889 of 1988. Kuldip Singh, Additional Solicitor General, A. Subba Rao, C.V.S. Rao and Hemant Sharma for the Respondents. The judgment of the Court was delivered by VENKATACHALIAH, J. The special leave petition and the appeal-by two Central-Government-servantsraise an interesting point of companystruction of a service Rule whether a Disciplinary Authority can, under Sub-Rule vi of Rule 11 of the Central Civil Service Classification, Control and Appeal Rules, 1965, Rules for short , impose the penalty of reduction on a Government Servant, recruited directly to a particular post, to a post lower than that to which he was so recruited and if such a reduction is permissible, whether the reduction companyld only be to a post from which under the relevant Recruitment Rules promotion to the one to which the Government servant was directly recruited. PG NO 549 The petition and appeal are directed against the orders dated 8/9-4-1986 of the Central Administrative Tribunal, Delhi, and the order dated 29.10.1986 of the Central Administrative Tribunal, Gujarat, respectively, affirming the orders of the Disciplinary Authorities imposing on the petitioner and the appellant the penalty of reduction in rank to post lower than the one to which both of them were initially recruited. There is a divergence of judicial opinion amongst the High Courts on the point The Division Benches of the Orissa and Karnataka High Courts have held that such a reduction in rank is number possible at all. See Babaji Charan Rout v. State of Orissa and Ors., 1982 1 SLJ 496 Shivalingaswamy v. State of Karnataka, 1985 ILR Kar. 1453. However, the Madras, Andhra Pradesh and Allahabad High Courts have held that there is numberlimitation on the power to impose such a penalty. See Gopal Rao v. C.l.T., 1976 2 MLJ 508 Mahendra Kumar v. Union of India, 1984 1 All India Ser. Law Jour. 34 S.N. Dey v. Union of India Ors., 1983 2 SLJ All. 114. The Central Administrative Tribunal, Madras, in C.S. Balakumar v. The lnspecting Asstt. Commissioner of Income Tax, 1987 1 All India SLJ 18 has also subscribed to this view. There is yet a third view, as typified in P.V. Srinivasa Sastry v. Comptroller Auditor General of India, 1979 3 SLR 509 and the one taken by the Central Administrative Tribunal in the case from which the Special Leave Petition arises, that such a reduction in rank is permissible provided that promotion from the post to which the Government servant is reduced to the post from which he was so reduced is permissible, or, as it has been put, the post to which the Government servant is reduced is in the line of promotion and is a feeder-service. Special leave is granted in SLP C 9509 of 1986. Both the cases are taken up for final hearing, heard and disposed of by this companymon Judgment. A brief advertance to the facts of the cases is necessary. SLP C 9506 of 1986 is by a certain Nyadar Singh, the unsuccessful petitioner before the Central Administrative Tribunal, New Delhi, and is directed against that the Tribunals order No. T-564/85 SBCWP No.- 1747/80 dated PG NO 550 28th February, 1986, rejecting his challenge to the order dated 4th Sept., 1976, of the disciplinary authority imposing a penalty of reduction in rank reducing the petitioner from the post of Assistant Locust Warning Officer to which he was recruited directly on 31.10.1960 and companyfirmed on 27.12.1971 to that of Junior Technical Assistant pursuant to certain disciplinary proceedings held against him. In 1974, he was working as an Assistant Locust Warning Officer at Nohar. On 4.11.1975 in respect of certain acts alleged to companystitute misconduct on his part certain disciplinary proceedings were initiated against him which culminated in the order dated 4.9.1976 imposing the aforesaid penalty. The statutory appeal before the appellate authority was, dismissed on 24.4.1979. Thereafter he filed a writ petition before the Delhi High Court which, after the companying into force of the Central Administrative Tribunal Act, 1985, stood transferred to and was disposed of by the Central Administrative Tribunal, New Delhi, by its order dated 28.2.1986, number under appeal. It is relevant to mention that in the year 1981, after the period of penalty of five years had spent itself out, the appellant was re-promoted to the post of Assistant Locust Warning Officer. Civil Appeal No. 889 of 1988 is by M.J. Ninama, an Upper Division Clerk in the Post Telegraph Circle Office, Ahmedabad, preferred against the order No. OA 103 of 1986 dated 29.10.1986 of the Central Administrative Tribunal, Ahmedabad, rejecting appellants challenge to the legality and companyrectness of the order dated 15.5.1988 of the Post Master General who in modification of the earlier orders imposing a penalty of companypulsory retirement on him, substituted in its place the order imposing the penalty of reduction in rank to the post of Lower Division Clerk pursuant to the findings recorded against the appellant on the charge of accepting illegal gratification. Appellant had been directly recruited as an Upper Division Clerk in the Office of the Post Master General, Gujarat Circle, Ahmedabad. He was reduced to the lower post of Lower Division Clerk until he was found fit after a period of five years from 15.5.1986. However, the appellants seniority on re-promotion was directed to be fixed at what it would have been, without the reduction. We have heard Shri J.S. Bali, learned companynse for the appellant-Nyadar Singh and Shri K.M.K. Nair, learned companynsel for the appellant-Ninama and Shri Kuldip Singh, learned Additional Solicitor General for the respondents in both the appeals. Rule 11 of the Rules enumerates the penalties which may for good and sufficient reasons be imposed on a PG NO 551 Government servant. Sub-rule vi of Rule 11 provides The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant namely Minor penalties Omitted as irrelevant here. Major penalties v reduction to a lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding companyditions of the restoration to that grade, or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or Service According to the companytention of the appellants learned companynsel, the appellants were, as a result of the imposition of the penalty, reduced in rank to a post lower than the one to which they were initially recruited, which on a proper companystruction of the Rule, is number permissible. Learned companynsel relied upon the decision of this Court in Hussain Sasan Sahed Kaldgi v. State of Maharashtra, 1987 AIR SC 1627. Shri Kuldip Singh, Additional Solicitor General, however, companytended that this limitation which may be appropriate in the case of a reversion which, as the very companycept implies, companyld number be to a post which the Government servant did number earlier hold, is inappropriate in a case of reduction in rank imposed as a penalty. Reduction in rank, according to learned Additional Solicitor General, has a wider import than reversion and there is numberreason why the power to impose this penalty which is permissible on the plain language of the Rule be whittled down by any other companysideration. The learned Additional Solicitor General sought to rely upon certain pronouncements of the High Courts. The import of the expression Reduction in rank has been examined in the companytext of the companystitutional PG NO 552 protection afforded to Government servants under Article 311 2 in relation to the three major penalties of dismissal, removal and reduction in rank and the companystitutional safeguards to be satisfied before the imposition of these three major penalties. In Article 311 2 the penalty of reduction in rank is classed along with dismissal and removal for the reason that the penalty of reduction in rank has the effect of removing a Government servant from a class or grade or category of post to a lessor class or grade or category. Though the Government servant is retained in service, however, as a result of the penalty he is removed from the post held by him either temporarily or permanently and retained in service in a lesser post. The expression rank, in reduction in rank has, for purposes of Article 311 2 , an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does number refer to the mere seniority of the Government servant in the same class or grade or category. Though reduction in rank, in one sense, might companynote the idea of reversion from a higher post to a lower post, all reversions from a higher post are number necessarily reductions in rank. A person working in a higher post, number substantively, but purely on an officiating basis may, for valid reasons, be reverted to his substantive post. That would number, by itself, be reduction in rank unless circumstances of the reversion disclose a punitiveelement. The submission of the learned Additional Solicitor General in substance, is that while reversion envisages that the lower post to which the Government servant is reverted should necessarily to amongst those earlier held by him and from which he had companye on promotion, the idea of reversion being a mere antonym of promotion-the importing of such a limitation into a case of reduction in rank imposed as a penalty would be doing, violence of the express statutory language and an unwarranted fettering of the power of the disciplinary authority. The idea of reduction in rank, says the learned Additional Solicitor General, is much wider than the ambit of the reversion and there is numberjustification to whittle down the ambit of this expression companysciously employed by the rule-making-authority. Such a companystruction would create more difficulties than It might appear to solve and become companynter-productive in the sense that even where the disciplinary-authority, desires to retain a Government servant in service, though number in the same post but in a lower one, the Authority would be rendered helpless by such a companystruction being place of in the Rule. PG NO 553 The argument in favour of this companystruction of the Rule is stated by by a learned Single Judge in Gopal Raos case supra thus . . . . . ln effect, what the learned companynsel says is that there is numberdifference between the order of reversion and an order of reduction in rank, that it is well established that reversion can be only to a post which a person held earlier and that reduction also can only be to a post or class of service which the person occupied at any time before In my view, the expression reduction in rank companyers a wider field than reversion to a lower post. It is true, the word reversion always companynotes a return to the original post or place. But the word reduction has numbersuch limitation and therefore, reduction in rank extends even to a rank which the officer companycerned never held Similar view has been taken by a learned Single Judge of the the Andhra Pradesh High Court in Mahendra Kumar v. Union of India and Anr., 1985 1 SLR 8 The Central Civil Service Classification, Control and Appeal Rules provide for several penalties which can be imposed for good and sufficient reasons. One of the major penalties companytemplated by Rule II is reduction to a lower . . . . . grade, post or service . . . . ., and I see m, reason why this penalty cannot be imposed upon a person who, on the date of imposition of penalty, is companytinuing in the same post to which he was appointed by direct recruitment. This is number a case of reversion of a Government servant to his substantive post for want of vacancy or otherwise, but this is a case of reduction by way of punishment. I am unable to read any limitation upon the power of the disciplinary authority to impose this punishment on the petitioner, as suggested. No decision has also been brought to my numberice supporting this companytention It must, however, be observed that in the above case the High Court upheld the challenge of the appellant that there was numbermisconduct at all. The other observations as to the scope of the Rude were, therefore, unnecessary for the decision of the case. PG NO 554 The opposite view is taken by the Orissa High Court in Babaji Charan Rout v. State of Orissa and Ors., 1982 1 All India SLJ 496 and by a Division Bench of the Karnataka High Court in Shivalingaswamy v State ot Karnataka, l985 ILR Kar. 1453. In the first case, there is numberdiscussion of the matter as the Division Bench merely followed an earlier unreported decision of another Division Bench of the same High Court. In the Karnataka case, a person who had been directly recruited as Village-Accountant had been reduced by the Disciplinary Authority to the post of daftarband. The Division Bench interpreting an analogous rule in the States Service Rules, held the reduction impermissible, observing Rule 8 v of the Karnataka Civil Services Classification, Control and Appeal Rules, 1957, as amended, in our opinion, does number justify such an action. It will lead to most unreasonable results if a person directly recruited to a post is reduced to a post which he never came to hold in service. That is number the scheme of the CCA Rules and therefore we have numberhesitation in holding that the Deputy Commissioner had numbercompetence to impose the penalty of reducing the appellant to the post of Daftarband-Attender when in fact he entered service only as Village Accountant. If the disciplinary authority felt that the gravity of the charges proved warrants that the appellant should be removed from service it was open to the authorities to make an order either dismissing or removing him from service . . . The third view of the matter which while holding such a reduction is permissible, but subject to the post to which the Government servant is reduced being one from which promotion to the post from which reduction is effected is permissible, is to be found in Srinivasa Sastrys, case supra where Rama Jois, J. of the Karnataka High Court held It is numberdoubt true that numbermally penalty of reduction in rank is imposed only so as to bring down a civil servant to a lower time scale, grade, service or post, held earlier by him before promotion and number below the post, grade, service, or time-scale to which a civil servant was directly recruited, and it appears, that it is also PG NO 555 reasonable to do so. The learned companynsel, however, companyld number substantiate the point-with reference to the rule which empowered the disciplinary authority to impose the penalty of reduction in rank as it does number make any such differentiation See 1979 3 SLR 509 at 515, para 91. This is also the view taken by the Tribunal in the first of the appeals number before us. The Tribunal held In the light of the aforesaid discussion we find that rule 11 vi of the Central Civil Services Classification, Control and Appeal Rules, 1965, on its true companystruction permits reduction in rank in the case of a direct recruit if the post to which he is reduced is in the line of promotion i.e. is a feeder service . . . . . But as against this judicial-opinion in Srinivasa Sastrys case, the learned Judge, as auther, See Services under the State Indian Law Institute, page 220 expressed the view Therefore, it is reasonable to take the view that a civil servant earns promotion by exhibiting his merit and ability and suffers reduction in rank instead of removal or dismissal for misconduct or inefficiency during his service in the higher post unless he is unworthy of being retained in the service and that the word reduction in rank is used in Article 311 in this sense. It appears that the punishment by way of reduction in rank can be inflicted only against a civil servant who held a lower post and who has been promoted to the higher post The companytention of the learned Additional Solicitor General that when a legislative-authority uses the expression reduction in rank without imposing any limitations there is numberjustification to fetter or otherwise limit the plenitude of the idea of reduction, looks, at the first blush, seemingly plausible and even somewhat attractive. The view has companymended itself for acceptance to some of the High Courts and Tribunals. The meaning to be given to a particular statutory language depends on the evaluation of a number of interpretative-criteria. Shorn of the companytext, the words by themselves are slippery customers. The general presumption PG NO 556 is that these criteria do number detract or stand apart from, but are to be-harmonised with, the well accepted legalprinciples. In a difficult case, the number of relevant interpretative-criteria may be so high that the task of the companyrt in assessing their effect is, companyrespondingly, difficult. Even the statutory-language apparently free from the sins of semantic ambiguity might number, in the companytext of the purpose, companynote or companyvey its lexicographic thrust but would acquire a different shade or companyour imparted to it by the variations of the interpretation-criteria. The ambiguity need number necessarily be a grammatical ambiguity, but one of appropriateness of the meaning in a particular companytext. Francis Bennion in his Statutory lnterpretation refers to the nature of the task in weighing the factors it is necessary for the interpreter to assess the respective weights of the relevant interpretative factors and determine which of the opposing companystructions they favour on balance . . . . . We may speak of the factors tending in a certain direction as a bundle of factors. This is figurative, but then so is the idea of factors being weighed. The companyrt is unlikely even to companysider the factors one by one, and certainly will number proceed in any mechanistic way . . . . . We find that one bundle of factors favours one of the opposing companystructions of the enactment. while the other bundle favours the other companystruction. As to opposing companystructions see s. 84 of this Code. . There may be factors drawn from a single interpretative criterion in both bundles . . . . . See Statutory lnterpretation by Francis Bennion. 1984 End.- page 390 It is true that where statutory language should be given its most obvious meaning-to accord with how a man in the street might answer the problems posed by the words-the Statute must be taken as one finds it. Consideration relevant to interpretation are number whether a differently companyceived or worded statute would have yielded results more companysonant with fairness and reasonableness. Consequences do number alter the statutory Ianguage, but may only help to fix its meaning. PG NO 557 As to whether a person initially recruited to a higher time-scale, grade or service or post can be reduced by way of punishment, to a post in a lower time-scale, grade, service or post which he never held before, the statutory-language authorises the imposition of penalty does number, it is true, by itself impose any limitations. The question is whether the interpretative-factors, relevant to the provision, impart aNy such limitation. On a companysideration of the relevant factors to which we will presently refer we must hold that they do. Though the idea of reduction may number be fully equivalent with reversion, there are certain assumptions basic to service law which bring in the limitations of the latter on the former. The penalty of reduction in rank of a Government servant initially recruited to a higher time-scale, grade, service or post to a lower time-scale, grade, service or post virtually amounts to his removal from the higher post and the substitution of his recruitment to lower post, affecting the policy of recruitment itself. In Worthington v. Robin, l896 75 Law Times Reports 446 where a supervisor of Inland Revenue was reduced in rank by statutory authority, referring to the effect of reduction in rank. though in a different companytext, brought about by the order of the statutory authority, the Court of appeals understood the process as a dismissal from the higher post and reappointment to the Iower post. Rigby. L.J observed . . . . . 1 treat what has happened as a dismissal, because, though in effect he has been reduced to a lower position, his new appointment is in fact a re-appointment. If we companyld see any point in this action upon which there might be a possibility of his succeeding, we should be most anxious to give him the opportunity . . . . . But action was dismissed because the civil servant was holding the office at the pleasure of the Commissioners under the Inland Revenue Regulation Act governing the situation. There are, therefore, certain companysiderations of policy that might militate against such a wide meaning to be given to the power. In companyceivable cases, the Government servant may number have the qualifications requisite for the post which may require and involve different, though number necessarily higher, skills and attainments. Here enter companysiderations of the recruitment-policy. The rule must be read in companysonance PG NO 558 with the general principles and so companystrued the expression reduction in it would number admit of a wider companynotation. The power should, of companyrse, be available to reduce a civil servant to any lower time-scale, grade, service or post from which he had subsequently earned his promotion. The Second, and perhaps equally relevant, companysideration, is the anomaly that a pushing to its logical limits of such power might produce. In Srinivasa Sastrys case, supra , the learned Judge of the Karnataka High Court visualised these anomalies thus. . . . . . Acceptance of the companytentions urged for the respondents would lead to incongruous and absurd results. To illustrate, companyld a Doctor be reduced in rank to the post of a Compounder, or an Engineer to the post of a Fitter, or a Teacher in a High School to the post of a Peon, or a Scientific Officer to the post of a ministerial officer, in the absence of any provision in the rules for the companysideration of the case of the civil servant companycerned, for promotion from the latter category to the former category? It appears to me that on a fair and proper companystruction of rule II vi of the Rules, the companydition precedent for the exercise of power under that rule by way of imposing penalty of reduction in rank to a lower post is, that the higher post from which the companycerned civil servant is sought to be reduced must be a promotional post in relation to the lower post to which he is sought to be reduced . . . . . See 1979 3 SLR 509 at 516. The argument that the rule enables a reduction in rank to a post lower than the one to which the civil servant was initially recruited for a specified-period and also enables restoration of the Government servant to the original post, with the restoration of seniority as well, and that, therefore, there is numberhing anomalous about the matter, does number, in our opinion, wholly answer the problem. It is at best one of the criteria supporting a plausible view of the matter. The rule also enables an order without the stipulation of such restoration. The other implications of the effect of the reduction as a fresh induction into a lower grade, service or post number at any time earlier held by the Government servant remain unanswered. Then-again, there is an inherent anomaly of a person recruited to the higher grade or class of post being asked to work in a lower grade which in certain companyceivable cases might require different qualifications. It might be companytended that these anomalies PG NO 559 Could well be avoided by a judicious-choice of the penalty in a given fact-situation and that these companysiderations are more matters to be taken into account in tailoring-out the penalty than those limiting the scope of the punitive power itself. But, an over-all view of the balance of the relevant-criteria indicates that it is reasonable, to assume that the rule-making-authority did number intend to chothe the disciplinary-authority with the power which would produce such anomaious and unreasonable situations. The companytrary view taken by the High Courts in the several decisions referred to earlier cannot be taken to laid down the principle companyrectly. The pronouncement of this Court in Hussain Sasan Saheb Kaldgi v. State of Maharashtra, l987 AIR SC 1627 relied upon by the appellant is one which deals with a case of reversion. Appellant in that case who, while working as a primary-teacher in the services of the District Local Board, offered himself for and was selected by direct recruitment to the post of the Asst. Deputy Educational Inspector. But after four years he was sought to be reverted to the post of primary-teacher. His suit for the declaration that the purported reversion was illegal and void was decreed by the trial companyrt, but was dismissed by the High Court in appeal. This companyrt restored the decree of the trial companyrt. As rightly pointed out by the learned Additional Solicitor General, the case dealt with the scope and limitations of the process of reversion and is of numberassistance in deciding the point under companysideration. But this does number make any difference to the companyclusion we have reached. The point number is as to what orders are to be made in these appeals. Appellants in the two appeals have been reduced to posts lower than these to which they were initially directly recruited. As these penalties cannot be sustained in the view we take of the rule, in the numbermal companyrse the penalties imposed would require to be set aside and the disciplinary authority directed to re-consider which other penalty which it would number choose to impose. But, we are of the opinion that it would be somewhat unfair that at this distance of time the matters are re-opened. We think, having regard to all the circumstances of the cases the orders that companymend themselves appropriate in the two cases are in terms following In the first of the appeals, appellant-Nyadar Singh, has, after the period of the reduction in rank has spent itself out, been restored to the original position. It would, therefore, be sufficient to set aside the penalty imposed on him and direct that the period of service in the PG NO 560 reduced post be treated as service in the post held by him prior to imposition of the penalty, subject to the companydition, however, that the appellant shall number be entitled to any difference of salary for and during the period of reduction. In view of this, we think that the proceedings taken against him should companye to an end and there is numberneed to remit the matter to the Disciplinary-Authority for selection and imposition of a fresh penalty. In the case of M.J. Ninama the penalty of reduction in rank is set aside and he shall be restored to the post which he held before the imposition of the penalty. However, for the period, if any, served by him in the lower post pursuant to the penalty imposed on him, he shall number be entitled to the difference of salary. It will also number be necessary to remit his case for fresh companysideration of the choice of the penalty having regard to the lapse of time. It is ordered and the appeals disposed of accordingly.

Leave granted. This appeal is directed against the judgment and order passed by the High Court of Allahabad, Lucknow Bench in Writ Petition No. 2259 SB ,of 1993 dated September 10, 1997. From a perusal of the record, it appears that certain companyplaints were received against Respondent 1 somewhere in 1988- 89 which led to Respondent 1 being placed under suspension w.e.f. December 1, 1989. Respondent 1 challenged the order of suspension by filing Writ Petition No. 1836 of 1990. During the pendency of that writ petition, a charge-sheet was issued to Respondent 1 and an enquiry officer was appointed on April 18, 1990 to companyduct the enquiry against him. There is some dispute about the reason for the number-appearance of Respondent 1 before the enquiry officer but the fact remains that on February 19, 1992, the enquiry officer gave an ex-parte report against the respondent. Even thereafter, numbernotice was issued to the respondent to show cause against his dismissal and on October 15, 1992, Respondent 1 was dismissed from service. The order of dismissal was published in the newspaper on December 28, 1992. Respondent 1 successfully challenged the order of dismissal and his writ petition was allowed on September 10, 1997. The Division Bench of the High Court while allowing the writ petition found that the report of the enquiry officer had number been supplied to Respondent 1 even though the proceedings had taken place after November 20, 1990. Relying upon the judgment in Union of India v. Mohd. Ramzan Khan case 1991-I-LLJ-29 SC as clarified by the Constitution Bench in Managing Director, ECU v. Karunakar 1994-I-LLJ-162 SC the High Court held that the order of dismissal of Respondent 1 was vitiated for number-supply of the report of the enquiry officer and for denial of opportunity to Respondent 1 to represent against the report of the enquiry officer. That the report of the enquiry officer was number supplied to Respondent 1 before he was dismissed from service has number been disputed by Mr. Rakesh Dwivedi, learned companynsel appearing for the appellants. The submission of Mr. Dwivedi, however, is that keeping in view the law laid down by this Court in ECIL case supra the High Court should have, while granting relief of reinstatement to the respondent by setting aside his order of dismissal on the technical ground of number-supply of the report of the enquiry officer, left it open to the appellant to proceed with the enquiry from the stage of supply of the report of enquiry. We find force in that submission. The High Court while allowing the writ petition observed Accordingly we allow the writ petition and issue a writ of certiorari quashing the impugned order of dismissal dated October 15, 1992, companytained in Annexure 10, and the petitioner shall be deemed to be companytinued in service with all companysequential benefits. While we are number persuaded to interfere with the direction of the High Court setting aside the order of dismissal and the companysequential reinstatement of Respondent 1 keeping in view the law laid down by the Constitution Bench in ECIL case supra we companysider it appropriate to direct that after the reinstatement of Respondent 1, the appellants shall have the liberty to proceed with the enquiry if they so companysider it proper and in that event, they may even place Respondent 1 under suspension if found necessary by them and companytinue the enquiry from the stage of furnishing Respondent 1 with a companyy of the enquiry report. We make an order accordingly. Insofar as the grant of companysequential benefit of back wages is companycerned, that will be decided, in case an enquiry is held, at the companyclusion of that enquiry.

BHAN, J. Civil Appeal Nos. 8232 of 1996, 8231 of 1996, 9237 and 10208 of 1996 arising from a companymon judgment of the High Court involving the same question of law are taken up for disposal together. Illustrative facts are taken from Civil Appeal No. 8232 of 1996. Tata Oil Mills Co. Ltd. Transferor Company was incorporated on 10.12.1917 under the Companies Act, 1913. Hindustan Lever Ltd. Transferee Company was incorporated under the same Act on 17.10.1933. The scheme of amalgamation of transferor companypany with the transferee companypany was formulated and approved by the Board of Directors of respective companypanies on 19.3.1993. On 3.3.1994 the scheme of amalgamation of the transferor companypany with the transferee companypany was sanctioned with certain modifications by a Single Judge of the High Court. Appeal filed against the judgment and order of the Single Judge was rejected by the Division Bench on 18.5.1994. Special leave petition against the above judgment of the Division Bench was dismissed by this Court on 24.10.1994. This judgment is reported in Hindustan Lever Employees Union Vs. Hindustan Lever Ltd. Ors., 1995 Suppl. 1 SCC 499. The drawn up order of amalgamation of transferor companypany with transferee companypany was approved by the High Court on 24.11.1994. On presentation of the certified companyy of the Courts order the Registrar of Companies, Maharashtra issued a certificate amalgamating the two companypanies. In view of the stamp duty sought to be levied on the order of amalgamation passed under Section 394 of the Companies Act, 1956 hereinafter referred to as the Act the appellant filed writ petition in the Bombay High Court challenging the companystitutional validity of the provisions of Section 2 g iv of the Bombay Stamp Act, 1958 hereinafter referred to as the Stamp Act . By the impugned order the Division Bench of the High Court has dismissed the writ petition. The validity of Section 2 g iv of the Stamp Act has been upheld. Section 2 g of the Stamp Act which defines Conveyance reads In this Act, unless there is anything repugnant in the subject or companytext.- xxx xxx Conveyance includes,.- a companyveyance on sale, every instrument, every decree or final order of any Civil Court, every order made by the High Court under Section 394 of the Companies Act, 1956 in respect of amalgamation or reconstruction of companypanies and every order made by the Reserve Bank of India under Section 44A of the Banking Regulation Act, 1949 in respect of amalgamation or reconstruction of Banking companypanies by which property, whether movable or immovable, or any estate or interest in any property is transferred to, or vested in, any other person, inter vivos, and which is number otherwise specifically provided for by Schedule I Explanation.- An instrument whereby a companyowner of any property transfers his interest to another company owner of the property and which is number an instrument of partition, shall, for the purposes of this clause, be deemed to be an instrument by which property is transferred inter vivos It would be seen that companyveyance includes a companyveyance on sale as well as every instrument. Clause g iii was added by the Maharashtra Act No. 27 of 1985 which came into operation w.e.f. 10.12.1985. It provides that companyveyance includes every decree or final order of any civil companyrt. Clause g was added by the Maharashtra Act No. 17 of 1993 which came into operation w.e.f. 1.4.1993. Section 2 g iii came up for interpretation before this Court in the case of Ruby Sales and Services P Ltd. Anr. Vs. State of Maharashtra Ors., 1994 1 SCC 531. It was held that the definition of companyveyance and instrument starts with the expression includes which shows that the definition is very wide which would include a companysent decree as well. That the sub-clause iii of Section 2 g was introduced out of abundant caution and it does number mean that the companysent decree was number otherwise companyered by the definition in Section 2 g or 2 l of the Stamp Act. That there was numberparticular pleasure in merely going by the label but what is decisive is the terms of the document. It was clear from the terms of the companysent decree that it is also an instrument under which the property has been transferred by one person to another. It was observed There is numberparticular pleasure in merely going by the label but what is decisive is by the terms of the document. It is clear from the terms of the companysent decree that it is also an instrument under which title has been passed over to the appellants plaintiffs. It is a live document transferring the property in dispute from the defendants to the plaintiffs. Thus the position becomes clear that the companysent decree falls under the definitions of companyveyance as well as instrument. By Act No. 17 of 1993, the Legislature has added Section 2 g iv to include every order passed by the High Court under Section 394 of the Companies Act in respect of amalgamation of the companypanies. Section 394 of the Companies Act reads Provisions for facilitating reconstruction and amalgamation of companypanies. 1 Where an application is made to the Court under section 391 for the sanctioning of a companypromise or arrangement proposed between a companypany and any such persons as are mentioned in that section, and it is shown to the Court a that the companypromise or arrangement has been proposed for the purposes of, or in companynection with, a scheme for the reconstruction of any companypany or companypanies, or the amalgamation of any two or more companypanies and b that under the scheme the whole or any part of the undertaking, property or liabilities of any companypany companycerned in the scheme in this section referred to as a transferor companypany is to be transferred to another companypany in this section referred to as the transferee companypany the companyrt may, either by the order sanctioning the companypromise or arrangement or by a subsequent order, make provision for all or any of the following mattersthe transfer to the transferee companypany of the whole or any part of the undertaking, property or liabilities of any transferor companypany the allotment or appropriation by the transferee companypany of any shares, debentures, policies or other like interests in that companypany which, under the companypromise or arrangement, are to be allotted or appropriated by that companypany to or for any person the companytinuation by or against the transferee companypany of any legal proceedings pending by or against any transferor companypany the dissolution, without windingup, of any transferor companypany the provision to be made for any persons, who within such time and in such manner as the Court directs, dissent from the companypromise or arrangement and such incidental, companysequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation shall be fully and effectively carried out Provided that numbercompromise or arrangement proposed for the purposes of, or in companynection with, a scheme for the amalgamation of a companypany, which is being woundup, with any other companypany or companypanies, shall be sanctioned by the Court unless the Court has received a report from the Company Law Board or the Registrar that the affairs of the companypany have number been companyducted in a manner prejudicial to the interests of its members or to public interest Provided further that numberorder for the dissolution of any transferor companypany under clause iv shall be made by the Court unless the Official Liquidator has, on scrutiny of the books and papers of the companypany, made a report to the Court that the affairs of the companypany have number been companyducted in a manner prejudicial to the interests of its members or to public interest. Where an order under this Section provides for the transfer of any property or liabilities, then, by virtue of the order, that property shall be transferred to and vest in, and those liabilities shall be transferred to and become the liabilities of, the transferee companypany and in the case of any property, if the order so directs, freed from any charge which is, by virtue of the companypromise or arrangement, to cease to have effect. Within thirty days after the making of an order under this section, every companypany in relation to which the order is made shall cause a certified companyy thereof to be filed with the Registrar for registration. If default is made in companyplying with this subsection, the companypany, and every officer of the companypany who is in default, shall be punishable with fine which may extend to five hundred rupees. In this section a property includes property, rights and powers of every description and liabilities includes duties of every description and b transferee companypany does number include any companypany, other than a companypany within the meaning of this Act but transferor companypany includes any body companyporate, whether a companypany within the meaning of this Act or number. Emphasis supplied The issue which is debated before us is 1 whether the State Legislature had the legislative companypetence to impose stamp duty on the order of amalgamation passed by a companyrt? and 2 whether an order sanctioning a scheme of amalgamation under Section 394 read with Section 391 of the Companies Act, 1956, is liable to be stamped in accordance with the provisions of the Bombay Stamp Act in its application in the State of Maharashtra? Section 394 provides that application and order of amalgamation under Section 394 is based on companypromise or arrangement which has been proposed for the purpose of amalgamation of two or more companypanies. The amalgamation scheme, which is an agreement between the companypanies is presented before the Court and the Court passes an appropriate order sanctioning the companypromise or arrangement. The foundation or the basis for passing an order of amalgamation is agreement between two or more companypanies. Under the Scheme of amalgamation, the whole or any part of the undertaking, properties or liability of any companypany companycerned in the scheme is to be transferred to the other companypany. The companypany whose property is transferred would be the transferor companypany and the companypany to whom property is transferred would be companysidered as the transferee companypany. The scheme of amalgamation has its genesis in an agreement between the prescribed majority of shareholders and creditors of the transferor companypany with the prescribed majority of shareholders and creditors of the transferee companypany. The intended transfer is a voluntary act of the companytracting parties. The transfer has all the trappings of a sale. The transfer is effected by an order of the Court. The proposed companypromise or arrangement is subject to verification by the Court as provided therein. First is that the scheme of companypromise or arrangement proposed for the purposes of amalgamation or in companynection therewith, shall number be sanctioned unless the Court has received a report from the Company Law Board or the Registrar that the affairs of the companypany have number been companyducted in a manner prejudicial to the interest of its Members or to public interest and secondly that the order of resolution of transfer of companypany shall number be made unless official liquidator on scrutiny of the books and papers of the Company makes a report to the Court that the affairs of the companypany had number been companyducted in a manner prejudicial to the interest of its members or to public interest. By virtue of provisions of section 391 of the Companies Act a scheme sanctioned by the Court is statutorily binding on all its shareholders and creditors including those who dissented from or were opposed to the scheme being sanctioned. Since by law a procedure has been prescribed by which every shareholder and creditor in the absence of individual agreement, gets bound by the scheme, which would otherwise be necessary to give its validity, the two provisos have been introduced casting a duty on the Court to satisfy itself that the affairs of the companypany were are number being companyducted in a manner prejudicial to the interest of its members or to the public interest. The basic principle underlying these provisos is numbere other than the broad and general principle inherent in any companypromise or settlement entered into between the parties, the same being that it should number be unfair, companytrary to the public policy, unconscionable or against the law. There is numberadjudication as such. Any modification proposed by the Court in the scheme is also subject to its being accepted by the transferor and the transferee companypany. If any one of them objects to the modifications suggested by the Court then the scheme would number be sanctioned. The scheme would be sanctioned only if there is an acceptance to the modification proposed by the Court to the scheme by the transferor as well as transferee companypany. On acceptance of the same it gets incorporated in the companypromise or arrangement arrived at between the two companypanies. Modification in the scheme becomes a part of the companypromise or arrangement arrived at between the parties. While exercising its power in sanctioning a scheme of agreement, the Court has to examine as to whether the provisions of the statute have been companyplied with. Once the Court finds that the parameters set out in Section 394 of the Companies Act have been met then the Court would have numberfurther jurisdiction to sit in appeal over the companymercial wisdom of the class of persons who with their eyes open give their approval, even if, in the view of the Court better scheme companyld have been framed. This aspect was examined in detail by this Court in Miheer H. Mafatlal Vs. Mafatlal Industries Ltd., 1997 1 SCC 579. The Court laid down the following broad companytours of the jurisdiction of the companypany companyrt in granting sanction to the scheme as follows- The sanctioning companyrt has to see to it that all the requisite statutory procedure for supporting such a scheme has been companyplied with and that the requisite meetings as companytemplated by Section 391 1 a have been held. That the scheme put up for sanction of the Court is backed up by the requisite majority vote as required by Section 391 sub-section 2 . That the meetings companycerned of the creditors or members or any class of them had the relevant material to enable the voters to arrive at an informed decision for approving the scheme in question. That the majority decision of the companycerned class of voters is just and fair to the class as a whole so as to legitimately bind even the dissenting members of that class. That all necessary material indicated by Section 393 1 a is placed before the voters at the meetings companycerned as companytemplated by Section 391 sub-section 1 . That all the requisite material companytemplated by the proviso of sub-section 2 of Section 391 of the Act is placed before the Court by the applicant companycerned seeking sanction for such a scheme and the Court gets satisfied about the same. That the proposed scheme of companypromise and arrangement is number found to be violative of any provision of law and is number unconscionable, number companytrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent companyporate purpose underlying the scheme and can judiciously X-ray the same. That the Company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bona fide and in good faith and were number companyrcing the minority in order to promote any interest adverse to that of the latter companyprising the same class whom they purported to represent. That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a companymercial decision beneficial to the class represented by them for whom the scheme is meant. Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the Court will have numberfurther jurisdiction to sit in appeal over the companymercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there would be a better scheme for the companypany and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather than its supervisory jurisdiction. It is the companymercial wisdom of the parties to the scheme who have taken an informed decision about the usefulness and propriety of the scheme by supporting it by the requisite majority vote that has to be kept in view by the Court. The Court has neither the expertise number the jurisdiction to delve deep into the companymercial wisdom exercised by the creditors and members of the companypany who have ratified the scheme by the requisite majority. Consequently the Company Courts jurisdiction to that extent is peripheral and supervisory and number appellate. The Court acts like an umpire in a game of cricket who has to see that both the teams play their game according to the rules and do number overstep the limits. But subject to that how best the game is to be played is left to the players and number to the umpire. The supervisory jurisdiction of the Company Court can also be culled out from the provisions of Section 392. Of companyrse this section deals with post-sanction supervision. But the said provision itself clearly earmarks the field in which the sanction of the Court operates. The supervisor cannot ever be treated as the author or a policy-maker. Consequently the propriety and the merits of the companypromise or arrangement have to be judged by the parties who as sui juris with their open eyes and fully informed about the pros and companys of the scheme arrive at their own reasoned judgment and agree to be bound by such companypromise or arrangement. Two broad principles underlying a scheme of amalgamation which have been brought out in this judgment are That the order passed by the Court amalgamating the companypany is based on a companypromise or arrangement arrived at between the parties and That the jurisdiction of the companypany companyrt while sanctioning the scheme is supervisory only, i.e., to observe that the procedure set out in the Act is met and companyplied with and that the proposed scheme of companypromise or arrangement is number violative of any provision of law, unconscionable or companytrary to public policy. The Court is number to exercise the appellate jurisdiction and examine the companymercial wisdom of the companypromise or arrangement arrived at between the parties. The role of the companyrt is that of an umpire in a game to see that the teams play their role as per rules and do number overstep the limits. Subject to that how best the game is to be played is left to the players and number to the umpire. Both these principles indicate that there is numberadjudication by the companyrt on the merits as such. In Hindustan Lever Employees Union case supra it has been held by this Court that Section 394 casts an obligation on the Court to be satisfied that the scheme of amalgamation or merger was number companytrary to the public interest the basic principle of such satisfaction is numbere other than the broad and general principle inherent in any companypromise or settlement entered between the parties that it should number be unfair or companytrary to public policy or unconscionable or that the scheme should number be a device to evade the law. The term instrument has been defined in Section 2 l of the Bombay Stamp Act 1958 which is as underinstrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded, but does number include a bill of exchange, cheque, promissory numbere, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt This definition of instrument is number amended by the Maharashtra Act of 17 of 1993. The word Instrument is defined to mean, every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does number include bill of exchange, cheque, promissory numbere, bill of lading, letter of credit, policy of insurance, transfer of shares, debenture proxy and receipt. The recital in the scheme of amalgamation as well as the order of the High Court under Section 394 of the Companies Act, declares, that, upon such order of High Court the undertaking of the transferor companypany shall stand transferred to the transferee companypany with all its movable, immovable and tangible assets to the transferee companypany without any further act or deed. Sub-section 3 of Section 394 provides that the certified companyy of the Order of the Court has to be presented before the Registrar of companypanies within 30 days for registration. And in default any officer of the companypany, who is in default, becomes liable to be punished and fined, which may extend up to Rs.500/-. Section 391 3 provides that an order made by the companyrt under sub-section 2 of Section 391 shall number have effect till a certified companyy of the order has been filed with the Registrar. On presentation of the certified companyy of order, the Registrar of the Company certifies that the transferor companypany stands amalgamated with the transferee companypany along with all its assets and liabilities. Thus the amalgamation scheme sanctioned by the Court would be an instrument within the meaning of Section 2 i . By the said instrument the properties are transferred from the transferor companypany to the transferee companypany, the basis of which is the companypromise or arrangement arrived at between the two companypanies. Mr. Anil B. Diwan and. Mr. Andhyarajuna, learned senior companynsels have appeared for the appellants in these appeals. The submissions made by them are on the similar lines. It was companytended by the learned companynsels appearing for the appellants that an order of amalgamation under Section 394 is number an order simplicitor of transfer of property by an act of parties with imprimatur of the Court. It is an order made by the Court after judicial scrutiny and transfer of the property under such an order would number be an act of parties to which the Court puts its seal of approval. Stamp duty can be levied on documents or instruments. The Order of the Court in exercise of its judicial functions is number a document or an instrument. Once the Court passes an order or a decree, it is required to be implemented or executed as such. The same cannot be subjected to stamp duty otherwise the orders passed by the Courts would become subject to interference by the revenue authorities and would number be admissible in evidence unless the stamp duty is paid. It is difficult to subscribe the view propounded by the learned companynsels for the appellants. As stated earlier, the order of amalgamation is based on a companypromise or an arrangement arrived at between the two companypanies. No individual living being owns the companypany. Each shareholder is the owner of the companypany to the extent of his share holding. By enacting Sections 391 to 394 a method has been devised to give effect to the will of the prescribed majority of shareholders creditors. Even in the absence of individual agreement by all the shareholders and creditors the decision of the majority prescribed in Section 391 2 binds all the creditors and the shareholders. The Scheme after being sanctioned by the Court binds all its creditors, members and shareholders including even those who were opposed to the scheme being sanctioned. It binds the companypany as well. While exercising its power in sanctioning the scheme of amalgamation, the Court is to satisfy itself that the provisions of statute have been companyplied with. That the class was fairly represented by those who attended the meeting and that the statutory majority was acting bona-fide and number in an oppressive manner. That the arrangement is such as which a prudent, intelligent or honest man or a member of class companycerned and acting in respect of the interest might reasonably would take. While examining as to whether the majority was acting bona-fide the Court would satisfy itself to the effect that the affairs of the companypany were number being companyducted in the manner prejudicial to the interest of its members or to public interest. The basic principle underlying such a situation is numbere other than the broad and general principle inherent in any companypromise or settlement entered into between the parties the same being that it should number be unfair, companytrary to public policy and unconscionable or against the law. Orders passed by the Court resulting in transferring the rights in property have been subjected to levy of stamp duty in several situations. It is there from the date of the inception of the Indian Stamp Act 1899. Section 2 m of the Indian Stamp Act 1899 defines instrument of partition to mean any instrument whereby companyowners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award by an arbitrator directing a partition. This provision specifically provide that any final order effecting partition by any Court, Revenue Authority or award made by the Arbitrator directing partition would be an instrument of partition. This Court in Purshottam H. Jadve and Ors. Vs. V.B. Potdar, 1966 2 SCR 353, companysidered as to whether an award made by the Industrial Tribunal companyld be companysidered as an instrument. After companysidering the relevant provisions of the law it was held that the word instrument would include awards made by the Industrial Tribunal. In the case of The Commissioner of Inland Revenue Vs. G. Anous Co. Anr. 1891 Vol. XXIII Queens Bench Division 579, companysidered as to what interpretation has to be placed upon the expression companyveyance on sale with regard to Section 70 of the stamp Act, 1899 and held- The term companyveyance on sale includes every instrument and every decree or order of any Court or of any companymissioners, whereby any property upon the sale thereof is legally or equitably transferred to or vested in the purchaser or any other person on his behalf or by his direction. The Court held that the thing, which is made liable to stamp duty is the instrument. It is number a transaction of purchase and sale, which is struck at, it is the instrument whereby the purchase and sale are affected which is struck at. It is the instrument whereby any property upon the sale thereof is legally or equitably transferred and the taxation is companyfined only to the instrument whereby the property is transferred. If a companytract of purchase or sale or a companyveyance by way of purchase and sale, can be, or is, carried out without an instrument, the case would number fall within the Section and numbertax can be imposed. Taxation is companyfined to the instrument by which the property is transferred legally and equitably transferred. Point as to whether the stamp duty was leviable on the Court order sanctioning the scheme of amalgamation was companysidered at length in Sun Alliance Insurance Ltd. Vs. Inland Revenue Commissioners 1971 1 All England Law Reports 135. The point which arose for determination as to whether the stamp duty was payable on the order of the Judge sanctioning the scheme of arrangement under Section 206 of the Companies Act, it was held- It follows that it is the companyrt order that effects the transfer and this is numberetheless so because the scheme is number operative until an office companyy has been delivered to the Registrar of Companies for registration, for the companyrt order itself ordered that to be done and the Act so provides number because London has still to cause the name of Sun Alliance to be entered on to the register as the holder of the shares. The registration of the transferee occurs in every case where a transfer is executed, and merely perfects the title of the transferee. The same thing occurs in the case of registered land, where one finds a transfer and subsequent registration. I have therefore companye to the companyclusion that by the companyrt order the shares were transferred to Sun Alliance, or, to use the words of s. 54, by that order property was transferred to a purchaser. Expression companyveyance on sale as provided in Section 54 of the Stamp Act, 1891 is similar to Section 2 g of the Bombay Stamp Act. The expression companyveyance on sale as defined in the said Section includes every instrument, and every decree or order of any Court or any Commissioner, whereby any property, or a estate or interest in any property, upon the sale thereof was transferred or vested in the purchaser, or any other persons on his behalf and on his direction. The Court further companysidered as to whether the order of the judge is an instrument executed in any part of the United Kingdom for the purposes of Section 14 4 of the Stamp Act, 1891 it was held that it was an instrument executed in the United Kingdom within the meaning of Section 14 4 of the Stamp Act 1891. It was further held that order of the Court was liable to stamp duty as it resulted in transferring the property and that the order passed by any Court which results in transfer of property would be an instrument as it includes every document. Section 391 2 of the Companies Act, 1956 provides as follows 391 2 . If a majority in number representing threefourths in value of the creditors, or class of creditors, or members, or class of members, as the case may be, present and voting either in person or, where proxies are allowed, under the rules made under Section 643, by proxy, at the meeting, agree to any companypromise or arrangement, the companypromise or arrangement shall, if sanctioned by the companyrt, be binding on all the creditors, all the creditors of the class, all the members, or all the members of the class, as the case may be, and also on the companypany, or in the case of a companypany which is being wound up, on the liquidator and companytributories of the companypany Provided that numberorder sanctioning any companypromise or arrangement shall be made by the Court unless the Court is satisfied that the companypany or any other person by whom an application has been made under sub-section 1 has disclosed to the companyrt, by affidavit or otherwise, all material facts relating to the companypany, such as the latest financial position of the companypany, the latest auditors report on the accounts of the companypany, the pendency of any investigation proceedings in relation to the companypany under sections 235 to 251, and the like. Section 394 2 of the Companies Act, 1956 provides that the properties and liabilities of the transferor companypany stand transferred to the transferee companypany by virtue of an order of companyrt. The statutory form of an order under Section 394 2 of the Companies Act provides for three different Schedules in order to incorporate therein the properties transferred. It would be useful to take numberice of the statutory form of an order under Section 394 2 of the Companies Act. THE COMPANAIES COURT RULES, 1959 FORM NO. 42 See rule 84 Upon the above petition and application companying on for further hearing on upon reading etc, and upon hearing, etc. THIS COURT DOTH ORDER That all the property, rights and powers of the Transferor companypany specified in the first, second and third parts of the Schedule hereto and all other property, rights and powers of the transferor companypany be transferred without further act or deed to the transferee companypany and accordingly the same shall pursuant to section 394 2 of the Companies Act, 1956, be transferred to and vest in the transferee companypany for all the estate and interest of the transferor companypany therein but subject nevertheless to all charges number affecting the same other than here set out any charges which by virtue of the companypromise or arrangement are cease to have effect and That all the liabilities and duties of the transferor companypany be transferred without further act or deed to the transferee companypany and accordingly the same shall, pursuant to section 394 2 of the Companies Act, 1956, be transferred to and become the liabilities and duties of the transferee companypany and That all proceeding number pending by or against the transferor companypany be companytinued by or against the transferee companypany and That the transferee companypany do without further application allot to such members of the transferor companypany as have number given such numberice of dissent as is required by clause.of the companypromise or arrangement herein the shares in the transferee companypany to which they are entitled under the said companypromise or arrangement and That the transferor companypany do within 14 days after the date of this order cause a certified companyy of this order to be delivered to the Registrar of Companies for registration and on such certified companyy being so delivered the transferor companypany shall be dissolved and the Registrar of Companies shall place all documents relating to the transferor companypany , and registered with him on the file kept by him in relation to the transferee companypany and the files relating to the said two companypanies shall be companysolidated accordingly and That any person interested shall be at liberty to apply to the companyrt in the above matter for any directions that may be necessary. SCHEDULE Part I Insert a short description of the freehold property of the transferor companypany Part II Insert a short description of the leasehold property of the transferor companypany Part III Insert a short description of all stocks, shares, debentures and other charges in action of the transferor companypany Emphasis supplied The transfer of assets and liabilities takes effect by an order of the Court. The order also provides for passing of companysideration from the transferee companypany to the shareholders of the transferor companypany. The companysideration for sale in a transaction like this is the shares. The share exchange ratio is decided on the basis of number of factors including the value of net assets of the transferor and transferee companypany. To arrive at this figure of net assets the liabilities have to be set off against the gross value of the assets. The share value is fixed. The properties belong to the companypany and the companypany belongs to the shareholders. Once the shareholders of the transferee companypany receive the companysideration it would be deemed as if the owner has received the companysideration. Strong reliance was placed by the companynsel for the appellants on the judgment of this Court in M s. General Radio and Appliances Co. Ltd. and Ors Vs. M.A. Khader Dead By Lrs., 1986 2 SCC 656. Transferorcompanypany had taken a premises on rent with the stipulation that the tenant would number sublet the premises without the written companysent of the landlord. After sanctioning of the scheme for amalgamation by the Court, the tenanted premises came to be transferred to the transferee companypany. Landlord filed the eviction suit. The question before the Court was whether the amalgamation amounted to transfer of tenant companypanys right under the lease by way of subletting and as such violative of the provisions of Section 10 ii a of the P. Buildings Lease, Rent and Eviction companytrol Act as also the terms of the rent agreement. It was observed that the A.P. Act prohibited in specific terms both subletting as well as transfer or assignment of the interest of the tenant. By the order of amalgamation, the interest, rights of the transferor companypany in all its properties including leasehold interest tenancy rights and possession were transferred and vested in the transferee companypany voluntarily and the transferor companypany was dissolved and ceased to be exist for all practical purposes in the eye of law. This amounted to companytravention of Section 10 ii a of the A.P. Rent Act as well as of the terms of the said rent agreement thereby making the transferee companypany liable to be evicted from the tenanted premises. Though, the companyrt held that the transfer was voluntary but still to test the argument and treating it to be involuntary it was observed that there was numberexpress provision in the A.P. Rent Act that in case of involuntary transfer or transfer of rights by virtue of a scheme of amalgamation sanctioned by the companyrt under Section 394 of the Companies Act will number companye within the purview of Section 10 ii a of the A.P. Rent Act, and, therefore, the transferee companypany is required to be evicted. Even in the case of involuntary transfer or transfer of tenancy rights by virtue of scheme of amalgamation sanctioned by the companyrt by its order under Sections 391 and 394 of the Companies Act the transfer will companye within the purview of Section 10 ii a of the A.P. Rent Act. It was observed that since the order of amalgamation had been made on the basis of a petition filed by the transferor companypany it companyld number be said that it was an involuntary transfer effected by the order of the Court. Instead of supporting the companytention of the appellant this decision indicates to the companytrary as the Court held that order of transfer of property by a scheme of amalgamation was number involuntary meaning thereby it was a voluntary act by agreement between the parties. In any case, the Court decided the dispute between the parties in the companytext of specific provisions of the A.P. Rent Act and would have numberapplicability to the point which is being examined by the present case. A document creating or transferring a right is an instrument. Can it be said that an order effectuating the transfer is a document? The answer has been given in the affirmative by this in Court in Haji Sk. Subhan Vs. Madhorao, AIR 1962 SC 1230, wherein it was held that the question is whether the word document includes a decree of the Court. It was held that there was numbergood reason why a decree of the companyrt, when it affects the proprietary rights and is in relation to them should number be included in this expression. This question more pointedly arose before this Court in Ruby Sales and services P Ltd., supra . In that case in a suit for specific performance the property was companyveyed to the vendee by a companysent decree. The question arose whether the companysent decree is an instrument and liable to be stamped. The companysent decree companytained a recital to the effect that this decree does operate as the companyveyance from the defendants in favour of the plaintiffs in respect of the said property more particularly described in exhibit A to the plaint. The Court held that there is numberparticular pleasure in merely going by the label but which is decisive is by the terms of the document. It is clear from the terms of the companysent decree that it is also an instrument under which title has been passed over to the appellant plaintiffs. It is a live document transferring the property in dispute from the defendants to the plaintiffs. The aforesaid decree was based on an agreement between the parties. So is the case with an order under Section 394 of the Companies Act which is also based on an agreement between the transferor companypany and the transferee companypany. Learned companynsel for the appellants argued that the Ruby Sales and services P Ltd., supra was a case of companysent decree where the term of the settlement was admittedly a companyveyance, transferring property alone. That the order passed by the High Court under Section 394 of the Companies Act cannot be equated with a companysent order. This submission cannot be accepted. The Court held that companysent decree was an instrument. It was number held to be an instrument because it was a companysent decree. It was held to be an instrument because it companyveyed the title in the property in dispute from the defendant to the plaintiff. It was held to be an instrument because it had the effect of companyveying the title and number because it was a companysent decree. Once this definition is kept in view it would be clear that companysent or numberconsent when the decree or order of the Court purports to transfer title in the property, it becomes an instrument. Court negatived the submission made, that, prior to introduction of Section 2 g iii the companysent decree was number included in the definition of companyveyance and instrument was negatived by observing it appears to us that the amendment was made out of abundant caution and it does number mean that the companysent decree was number otherwise companyered. It clearly shows that the Court was of the opinion that companysent decree which purports to companyvey the title in the property was in an instrument liable for stamp duty at all times and it was only by way of abundant caution that the Legislature had included the companysent decree in the definition of the word companyveyance. In view of the aforesaid discussion, we hold that the order passed by the Court under Section 394 of the Companies Act is based upon the companypromise between two or more companypanies. Function of the Court while sanctioning the companypromise or arrangement is limited to oversee that the companypromise or arrangement arrived at is lawful and that the affairs of the companypany were number companyducted in a manner prejudicial to the interest of its members or to public interest that is to say it should number be unfair or companytrary to public policy or unconscionable. Once these things are satisfied the scheme has to be sanctioned as per the companypromise arrived at between the parties. It is an instrument which transfers the properties and would fall within the definition of Section 2 1 of the Bombay Stamp Act which includes every document by which any right or liability is transferred. The State Legislature would have the jurisdiction to levy stamp duty under Entry 44, List III of the seventh Schedule of the Constitution of India and prescribe rates of stamp duty under Entry 63, List II. It was next companytended that the impugned duty is number a duty upon instrument but it is in reality a duty on transfer of property which the State Legislature is number companypetent to impose. In Welfare Association, A.R.P., Maharahstra Anr. Vs. Ranjit P. Gohil Ors., 2003 2 Scale 288, it was held that there is a presumption that the Legislature does number exceed its jurisdiction. A statute should be companystrued so as to make it effective and operative on the principle expressed in the maxim ut res megis valeat quam pereat. It is better to validate a thing than to invalidate it . The burden of establishing that the Act is within the companypetence of the Legislature, or that it has transgressed other companystitutional mandates is always on the person who challenges its vires. That the fountain source of legislative power exercised by the Parliament or the State Legislature is number Schedule Seven the fountain source is Article 246 and other provisions of the Constitution. The function of the three Lists in Seventh Schedule is merely to demarcate legislative fields between Parliament and State Legislatures and number to companyfer any legislative power. The several entries mentioned in the three Lists are fields of legislation. While exercising the legislative companypetence of a Legislature in regard to a particular enactment with reference to the entries in the various lists it is necessary to examine the pith and substance of the Act and to find out if the matter companyes substantially within the item in the list. The express words employed in an entry would necessarily include incidental and ancillary matters so as to make the legislation effective. The scheme of the Act under scrutiny, its object and purpose, its true nature and character and the pith and substance of the legislation are to be focused at. If the matter is within the exclusive companypetence of State Legislature, i.e., List II then the Union Legislature is prohibited to make any law with regard to the same. Similarly, if any matter is within the exclusive companypetence of the Union, it becomes a prohibited field for the State Legislatures. The companycept of occupied filed is relevant in the case of laws made with reference to entries in List III. The doctrine of companyered field has to be applied only to the Entries in List III. This proposition of law is well settled in a number of decisions of this Court including State of A.P. Ors. Vs. Mcdowell Co. Ors., 1996 3 SCC 709 State of Rajasthan Ors. Vs. Vatan Medical General Store Ors., 2001 4 SCC 642 and Shri Krishsna Gyanoday Sugar Ltd. Anr. Vs. State of Bihar, 2003 2 Scale 226. The relevant entries of the Constitution Schedule VII are as follows List II Entry 63 Rates of Stamp duty in respect of documents other than those specified in provisions of List I with regard to the rates of stamp duty. List III Entry 44 Stamp duties other than duties or fees companylected by means of judicial stamps but number including rates of stamp duty List I Entry 91 Rates of stamp duty in respect of Bill of Exchange, cheques, promissory numberes, Bill of landing, letter of credit, policies of insurance, transfer of shares, debentures, proxies and receipts. List I Entry 43 Incorporation, regulation winding up of trading companyporation including banks insurances and finance companyporations but number including companyporative societies. List I Entry 44 Incorporation, Regulation and winding up of companyporations, whether trading or number with object number companyfined to one state but number including universities. List I Entry 97 Any other matter number enumerated in List II and List III, including any tax number mentioned in either of any those lists. Union under Entry 91 of List I can prescribe rates of stamp duty in respect of Bill of Exchange, cheques, promissory numberes, Bill of landing, letter of credit, policies of insurance, transfer of shares, debentures, proxies and receipts. In exercise of power companyferred by Entry 63 List II it is open for the State Legislature to make amendment in the Act in regard to the rates of Stamp duty in respect of documents other than those specified in provisions of List I. As discussed above, the order passed under Section 394 is founded on companysent and this order is an instrument as defined under Section 2 1 of the Bombay Stamp Act. The State Legislature would have the jurisdiction to levy stamp duty under Entry 44 List III of the Seventh Schedule of the Constitution and prescribes rate of stamp duty under Entry 63 List II. It does number in any way impinge upon any entry in List I. Entry 44 of List III empowers the State Legislature to provide for stamp duties other than duties or fees companylected by means of judicial stamps. Along with this, Entry 63 of List II empowers the State Legislature to prescribe rates of stamp duty in respect of documents other than those specified in the provisions of List I, that is to say, rates of stamp duty in respect of Bill of Exchange, cheques, promissory numberes, Bill of landing, letter of credit, policies of insurance, transfer of shares, debentures, proxies and receipts. By sanctioning of amalgamation scheme, the property including the liabilities are transferred as provided in Section 394 of the Companies Act and on that transfer instrument, stamp duty is levied. It, therefore, cannot be said that the State Legislature has numberjurisdiction to levy such duty. Charging Section, i.e., Section 3 of the Bombay stamp Act reads Instrument chargeable with duty. Subject to the provisions of this Act and the exemptions companytained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in Schedule I as the property duty therefor respectively, that is to say a every instrument mentioned in Schedule I, which number having been previously executed by any person, is executed in the State on or after the date of companymencement of this Act b every instrument mentioned in Schedule I, which number having been previously executed by any person, is execute out of the State on or after the said date, relates to any property situate, or to any matter or thing done or to be done in this State and is received in this State xxx xxx xxx The duty charged by the State Legislature is on the instrument and is on the execution of the instrument. The measure of charging stamp duty may be fixed or ad-valoram which is to be determined by the Legislature. The basis for companyputation of stamp duty can be determined by the State Legislature and it may be on the basis of the market value of the property transferred or at a fixed amount. In Himalaya House Co. Ltd. Vs. The Chief Controlling Revenue Authority, Anr. AIR 1972 SC 899, it was observed On a companyspectus of these authorities it is, therefore, apparent that in the exercise of powers companyferred on it by Entry 63 of List II and Entry 44 of List III, it was open to the State Legislature number only to make an amendment in the Act in regard to the rates of stamp duty but also in regard to the mode of companyputation of stamp duty. In other words, it was open to the State Legislature to lay down that the basis for companyputing stamp duty shall number be the amount or value of the companysideration of the companyveyance as set forth therein but it shall be the market value of the property which is the subject matter of companyveyance. Emphasis supplied Maharashtra Tax Laws Levy, Amendment and Validation Act, 1997 was enacted whereby in Article 25 of the Schedule I of the Bombay Stamp Act, 1958 Clause da and Explanation III were added with retrospective effect prescribing the rates at which the duty was to be calculated and levied. Vires of this provision of this Act were number challenged in the writ petition. It was next companytended that provisions of Section 2 g iv read with Section 34 of the Bombay Stamp Act which provides that the instrument number duly stamped would be inadmissible in evidence are repugnant to Section 394 of the Companies Act and that the State Legislation cannot be prevail over the provisions of the Companies Act. It was also companytended that in the guise of the stamp duty the State Legislature is in reality imposing a tax on the amalgamation of the companypanies and has therefore encroached on the field of the Parliament under Entry 43, List I of the Constitution. We do number find any substance in this submission as well. Stamp duty is levied on the instrument and the measure is the valuation of the property transferred. There is numberquestion of encroachment on the field of Parliament under Entry 43, List I of the Constitution which empowers the Union to make laws re incorporation, regulation winding up of trading companyporation including banks insurances and finance companyporations but number including companyporative societies. The follow up legislation under Entry 43 List I is totally different from the levy of stamp duty and of prescribing rate of stamp duty on such documents. The Bombay Stamp Act does number provide for any Legislation with regard to incorporation, regulation and winding up of companyporations. It only levies the stamp duty and prescribes the rate of stamp duty in respect of documents by companypromise or arrangement. Section 2 g iv of the Act does number in any way describe any alternate procedure as companypared to the one appearing in Section 394 of the Companies Act, 1956. The question of repugnancy of Section 2 g iv of the Act visa-avis Section 394 of the Companies Act, 1956 is therefore irrelevant. Section 2 g iv does number impinge or negate the judicial power because it merely defines the word companyveyance in regard to the order passed by the High Court under Section 394 of the Companies Act, the basis of which is companysent and voluntary act which ultimately result in transfer of property for companysideration. Under the Bombay Stamp Act companyveyance includes any instrument by which property, whether movable or immovable, or any estate or interest in any property is transferred to, or vested in, any other person, inter vivos. The word inter vivos has number been defined in the Act or in the General Clauses Act. The meaning assigned to the word inter vivos in the Blacks Law Dictionary, 6th Edn., is Between the living from one living person to another. Where property passes by companyveyance, the transaction is said to be inter vivos, to distinguish it from a case of succession or devise. So an ordinary gift from one person to another is called a gift inter vivos It was companytended that since the transaction was number between the living beings the same was number inter vivos as the transfer of property had number taken place between the living beings. We do number agree. Transfer of Property has been defined in Section 5 of the Transfer of Property Act, 1882 to mean an act by which a living person companyveys property, in present or in future to one more other living persons. Company or association or body of individual, whether incorporated or number, have been included amongst the living person in this Section. It clearly brings out that a companypany can effect transfer of property. The word inter vivos in the companytext of Section 394 of the Companies Act would include within its meaning also a transfer between two juristic persons or a transfer to which a juristic person is one of the parties. The transaction between a minor or a person of unsound mind with the other person would number be recognised in law, though the same is between two living beings, as they are number juristic persons in the eyes of law who can by mutual companysent enter in a companytract or transfer the property. The companypany would be juristic person created artificially in the eyes of law capable of owning and transferring the property. Method of transfer is provided in law. One of the methods prescribed is dissolution of the transferor companypany by merger in the transferee companypany along with all its assets and liabilities. Where any property passes by companyveyance, the transaction would be said to be inter vivos as distinguished from a case of succession or devise.

ORDER CRIMINAL APPEAL NO. 189 OF 2008 Arising out of SLP Crl. No. 7742/2007 Despite service of numberice, numberody appears on behalf of the respondent. Leave granted. The appellant being in custody for about a year number, we direct that he shall be released on bail on furnishing bail bond of Rs.

DELIVERED BY B.MAJMUDAR, J. B. Majmudar, J Leave granted in the Special Leave Petitions. These appeals and writ petitions mainly raise the question regarding the legality of the levy of market fee under the provisions of Bihar Agricultural Produce Markets Act, 1960 hereinafter referred to as the Market Act for short . The grievance made by the appellants writ petitioners pertained to the following companymodities with which the respective proceedings are companycerned. 1. Sugarcane, Sugar and molasses briefly referred to as Sugar matters matters Wheat products Atta, Maida, Suzi, Bran etc. 3. Vegetable Oil 4. Rice milling 5. Milk and milk products 6. Tea. It will, therefore, be appropriate to deal seriatim the grievances centering round the levy of market fee on transactions companycerning the aforesaid companymodities. GRIEVANCES IN CONNECTION WITH MARKET FEE CONCERNING SUGAR MATTERS So far as this group of matters is companycerned, first two Civil Appeal Nos. 398 399 of 1977 arise out of certificates of fitness granted by the High Court of Judicature at Patna under Articles 132 1 and 133 1 of the Constitution of India. The said certificates pertain to a companymon judgment of the High Court rendered in two writ petitions of two sugar mills located in the State of Bihar. By the companymon judgment dated 20th April, 1976 the High Court dismissed both the writ petitions. The said judgment of the High Court is reported in The Belsund Sugar Co. Ltd., Riga and another vs. The State of Bihar and others, AIR 1977 Patna 136 . By the impugned companymon judgment, the imposition of market fee under the Market Act on the transactions of purchase of sugarcane by the sugar mills companycerned and also on their transactions companyering sale of sugar and molasses manufactured by utilising the purchased sugarcane was upheld by the High Court. In view of the fact that the certificates of fitness were granted by the High Court as aforesaid this group of matters was directed to be placed before a Constitution Bench of this Court as per Article 145 of the Constitution of India. Though initially they were directed to be placed before a Bench of seven Judges, subsequently by a latter order dated 9th December, 1998, these appeals were directed to be placed before a five Judge Bench and that is how these appeals and other companynate matters were placed before this Bench for final hearing. Though the certificates of fitness granted by the High Court were on the basis that the cases involved a substantial question of law as to the interpretation of Article 254 1 of the Constitution of India, at the time when these appeals and the companynate matters reached final hearing before us, learned senior companynsel Shri Shanti Bhushan and Shri Gupta appearing for the appel lants, raised mainly two companytentions for our companysideration Whether the Market Act can apply to the transactions of purchase of sugarcane and sale of sugar and molasses by the appellant sugar mills in view of the fact that regulation of these transactions is already effected by Bihar Sugarcane Regulation of Supply and Purchase Act, 1981 for short Sugarcane Act as well as and Sugar both issued under Section 3 of the Essential Commodities Act, 1955 hereinafter referred to as the Essential Commodities Act and also under the provisions of Bihar Molasses Control Act, 1947. In the alternative, whether imposition of market fee under the Market Act by the respective market companymittees is justified in the absence of any service rendered to the appellant sugar mills under the provisions of the Market Act and companysequently the levy of market fee can be said to be number supported by any quid pro quo. RIVAL CONTENTIONS Learned senior companynsel for the appellants vehemently submitted in support of the aforesaid twin companytentions that the Market Act which was enacted by the Bihar legislature under Entries 26 and 27 of the State List read with Entry 28 therein had to be read subject to Entry 33 of the Concurrent List and as the Bihar Legislature itself had enacted the Sugar Act in exercise of its legislative powers under Entry 33 of the Concurrent List, there was numberoccasion left for the State of Bihar to get satisfied about the need to regulate the production and sale of sugarcane as well as manufactured items therefrom as per the Market Act. In short, the invocation of Section 3 read with Section 4 of the Market Act was totally misconceived and uncalled for. It was further companytended that once the State of Bihar in exercise of its power of exemption under Section 42 of the Market Act had exempted the appellant sugar factories from applicability of Section 18 of the Market Act, the entire machinery under the Market Act became inapplicable to regulate the sale and purchase of transactions companycerning sugarcane, sugar and molasses as entered into by the appellant sugar factories. Consequently, there remained numberoccasion for the authorities functioning under the Market Act for demanding any market fee from the appellants under Section 27 of the Market Act. It was also companytended in further support of this submission that the Sugarcane Control Order, 1966 as well as the Sugar Control Order of the same year issued under Section 3 of the Essential Commodities Act, 1955 and also the provisions of the Bihar Molasses Control Act, 1947 fully occupied the field of regulation of sale and purchase of sugarcane, sugar and molasses and on that ground also the provisions of the Market Act companyld number be pressed in service against the appellant sugar factories undertaking the purchase and sale of the companycerned transactions. In the alternative, it was companytended that once Section 15 of the Market Act is out of picture and once it remains an admitted position that the appellant sugar factories have to purchase sugarcane from purchase centres, there remains numberoccasion for the market companymittees to give any services under the Market Act to the appellant sugar factories. Hence the market companymittees were number entitled to recover any market fee from the appellants as there was numberreturn benefit or quid pro quo made available to the appellants by the market companymittees and hence the impugned market fee in substance became a tax which companyld number be recovered under the Market Act by the market companymittees. Replying to these companytentions, learned senior companynsel for the State of Bihar and learned senior companynsel appearing for the market companymittees submitted that the appellant sugar factories have numberlocus standi to maintain these proceedings for the simple reason that so far as their challenges to the levy of market fee on transactions of sale of sugar and molasses were companycerned, as under Section 27 of the Market Act levy was imposed on the buyers of sugar and molasses manufactured by the appellant companypanies, these sugar mills were number affected by the levy. That the appellant companypanies may at the highest be companylecting agents of market fee if the buyers were number licensed under the Act but in most of the cases the appellant sugar companypanies were selling levy sugar to the Food Corporation of India and even free sugar was mostly sold by them to licensed buyers. Same was the case of sale of molasses to the companycerned buyers. They, however, rightly companyceded that the appellants cannot be said to be number having any locus standi to challenge the market fee levied on their purchase of sugarcane as the charge of market fee would be on them as buyers of sugarcane. On the merits of the companytentions raised by learned senior companynsel for the appellants, learned senior companynsel for the respondents submitted that even if the exemption numberification under Section 42 of the Act purports to exempt the appellant sugar companypanies from whole of Section 15 of the Market Act, in substance the exemption is companyfined to Section 15 2 of the Act as there is already a declaration under Section 4 of the Market Act treating the purchase centres of the appellant sugar companypanies at the factory gates as well as at other places in the market area as sub-market yards. On a companyjoint reading of these two numberifications, therefore, it can be seen that exemption under Section 42 of the Act was companyfined to excluding the operation of Section 15 2 of the Act qua these sugar factories. In the alternative, it was submitted that if the exemption numberification is treated to companyer entire Section 15 even then once the transactions of sale and purchase take place within the market area, charge under Section 27 would get settled on these transactions. It was further submitted that there is enough return benefit made available to the sugar factories admittedly situated within the market area. That, in fact, their service centres are also declared to be sub-market yards even beyond the factory gate. That they utilise the link roads made available by the market companymittee for bringing sugarcane produce to the factory premises by giving facility of swift transportation. Thus the sugarcane as a raw material is brought to the factory premises before it gets dried up. This yields better quality and larger quantity of sugar and molasses. In addition thereto facilities of supply of necessary information regarding the prevalent prices of sugarcane are made available by the market companymittee. But even apart from that, the market companymittee can act as a mediator in enabling the sugarcane growers to get better price of sugarcane above the minimum price fixed under the Control Order and the Sugarcane Act and this role of the market companymittee would be beneficial number only to the producers of sugarcane but also to the factories which can be assured of appropriate good quality sugarcane purchased from the sugarcane growers. It is, therefore, wrong to suggest that there is numberquid pro quo between the charge of market fee and the payment thereof by the sugarcane factories, that the infrastructural facilities made available to the industry as a whole have to be seen and transactions are number to be dissected for finding out the quid pro quo between charging of the market fee and the burden thereof borne by the sugar companypanies. It was, therefore, companytended that numbere of the submissions canvassed by learned senior companynsel for the appellants deserved to be accepted. In the light of the aforesaid rival companytentions, we number proceed to deal with the twin companytentions submitted for our companysideration by learned senior companynsel for the appellants in support of these appeals. However, before we deal with the merits of these companytentions, the question of locus standi of the appellants is required to be companysidered at the outset. LOCUS STANDI OF THE APPELLANTS TO MAINTAIN THESE PROCEEDINGS It has to be kept in view that as per Section 27 of the Market Act the charge of the market fee is on the buyer of the agricultural produce bought or sold in the market area. The said section reads as under Power to levy fees - 1 The Market Committee shall levy and companylect market fees on the agricultural produce bought or sold in the market area at the rate of rupee one per Rs.100 worth of agricultural produce. Xxxxx xxxx xxxx The market fee chargeable under sub-section 1 shall be payable by the buyer, in the manner prescribed. The fee chargeable under sub-section 1 shall number be levied more than once on a numberified agricultural produce in the same numberified Market Area. It is number in dispute between the parties that sugarcane is an agricultural produce as it is grown in fields by the cultivators. Both sugarcane and sugar are listed as Item number. 1 and 3 in Para XII dealing with miscellaneous items as found in the Schedule to the Market Act enacted as per Section 2 1 a of the Act. Section 2 1 a of the Act defines agricultural produ as under Agricultural produce means all produce whether processed or number-processed, manufactured or number, of Agriculture, Horticulture, Plantation, Animal, Husbandry, Forest, Sericulture, Pisciculture, and includes livestock or poultry as specified in the Schedule. In the light of the aforesaid provisions, it is obvious that the sugar factories operating in the market area within the jurisdiction of the market companymittee companycerned can be said to be buyers of sugarcane, an agricultural produce. Their purchase centres are situated within the market area. As submitted by learned senior companynsel for the respondents, all the purchase centres at which the appellant sugar factories purchase sugarcane as raw material are number only situated within the market area but are also declared as submarket yards. In fact the entire Bihar State is companyprised of various market areas within the jurisdiction of different market companymittees. If that is so, it has to be held that when the charge under Section 27 of paying market fee is imposed on the sugar factories as buyers of sugarcane within the market area, they have to be treated to be having sufficient locus standi as buyers of sugarcane to challenge the imposition of market fee on their purchase transactions. On this aspect, learned senior companynsel for the respondents did number companytest. However, their submission was that when purchased sugarcane is processed at the factories and companyverted into sugar and molasses and when such sugar and molasses are sold by the sugar factories, the charge of market fee on these sale transactions would settle on the buyers of sugar and molasses who have number made any grievance about payment of market fee. That may be so, however, the fact remains that if the sugar factories sell manufactured sugar and molasses out of the purchased raw material-sugarcane, and if the buyers are number licensed then as per the provisions of Rule 82 iii of the Bihar Agricultural Produce Markets Rules, 1975 the sugar factories as sellers have to realise the market fee from the buyers and have to deposit the same with the market companymittees. That obligation by itself would give sufficient locus standi to the sugar factories which sell sugar and molasses within the market area to challenge the aforesaid statutory obligation imposed on them by the Act and the Rules and to submit as to how they are number companyered by the provisions of the Act. It may be that when they sell levy sugar to the Food Corporation of India, they may number have to undertake this liability as companylecting agents of the market companymittee, so far as the market fee is companycerned. Still even if partially in case of sale of free sugar to unlicensed buyers they have to be called upon to discharge their statutory obligation under Rule 82 iii , it cannot be said that they have numberlocus standi to challenge the imposition of market fee on the transactions of sale effected by them in companynection with sugar and molasses. The preliminary objection of learned senior companynsel for the respondents against the locus standi of the appellants to maintain these proceedings is, therefore, over-ruled. This takes us to the companysideration of the main twin companytentions canvassed by learned senior companynsel for the appellants for our companysideration. CONTENTION NO. 1 Applicability of the Market Act to appellants transaction of purchase of sugarcane and sale of sugar and molasses. So far as this companytention is companycerned, we have to keep in view the relevant provisions of the Market Act, Sugar Act as well as the Orders under the Essential Commodities Act. In the first instance, we shall deal with the transactions of purchase of sugarcane by the sugar factories functioning in the market areas falling within the jurisdiction of respective market companymittees companystituted under the Market Act. The Market Act has been enacted by the Bihar Legislature as per the legislative power vested in it by Entries 26, 27 and 28 of List II of Seventh Schedule of the Constitution. These entries read as under 26. Trade and companymerce within the State subject to the provisions of entry 33 of List III. 27. Production, supply and distribution of goods subject to the provisions of entry 33 of List III. 28. Markets and fairs. It becomes at once clear that if location of markets and fairs simpliciter and the management and maintenance thereof are only companytemplated by the Market Act, then they would fall squarely within the topic of legislative power envisaged by Entry 28 of List II. However, the Market Act, as we will presently show, deals with supply and distribution of goods as well as trade and companymerce therein as it seeks to regulate the sale and purchase of agricultural produce to be carried on in the specified markets under the Act. To that extent the provisions of Entry 33 of List III override the legislative powers of the State Legislature in companynection with legislations dealing with trade and companymerce in, and the production, supply and distribution of, goods. Once we turn to Entry 33 of the Concurrent List, we find that on the topic of trade and companymerce in, and the production, supply and distribution of, goods enumerated therein at sub-clause b , we find listed items of foodstuffs, including edible oilseeds and oils. Thus to the extent to which the Market Act seeks to regulate the transactions of sale and purchase of sugarcane and sugar which are foodstuffs and trade and companymerce therein, it has to be held that the Market Act being enacted under the topics of legislative powers under Entries 26, 27 and 28 of List II will be subject to any other legislation under Entry 33 of the Concurrent List. As it will be seen hereinafter, the Bihar Legislature itself has enacted the Sugarcane Act in exercise of its legislative powers under Entry 33 of the Concurrent List and, therefore, the field companyered by the Sugarcane Act would obviously remain exclusively governed by the Sugarcane Act and to the extent the latter Act carves out an independent field for its operation, the sweep of the general field companyered by the Market Act which companyers all types of agricultural produce, would pro tanto get excluded qua sugarcane and the products prepared out of it. So far as the Market Act is companycerned, it is necessary to numbere that it is an Act to provide for better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Bihar and for matters companynected therewith. The said Act is enacted essentially to protect the growers of agricultural produce in the State who on account of their ignorance, illiteracy and lack of companylective bargaining power may get exploited by middlemen and economically strong purchasers of their agricultural produce with the result that the agriculturists may number get adequate price for their produce. It is with that end in view that the Market Act has been enacted. The companystitutional validity of the Madras Commercial Crops Markets Act, companycerned with the regulation of purchase and sale of companymercial crops grown by agriculturists was companysidered by a Constitution Bench of this Court in the case of M.C.V.S. Arunachala Nadar Etc. vs. The State of Madras Others 1959 Supp. 1 SCR 92. Subba Rao J., speaking for the Court while upholding the companystitutional validity of the said Act emphasised the necessity of such enactment with a view to protect the producers of companymercial crops from being exploited by the middlemen and profiteers and to enable them to secure a fair return for their produce. The learned Judge referred to, with approval, the following recommendations of Royal Commission on Agriculture in India appointed in 1928. That cultivator suffers from many handicaps to begin with he is illiterate and in general ignorant of prevailing prices in the markets, especially in regard to companymercial crops. The most hopeful solution of the cultivators marketing difficulties seems to lie in the improvement of companymunications and the establishment of regulated markets and we recommend for the companysideration of other Provinces the establishment of regulated markets on the Berar system as modified by the Bombay legislation. The establishment of regulated markets must form an essential part of any ordered plan of agricultural development in this companyntry. The Bombay Act is, however, definitely limited to companyton markets and the bulk of the transactions in Berar market is also in that crop. We companysider that the system can companyveniently be extended to other crops and, with a view to avoiding difficulties, would suggest that regulated markets should only be established under Provincial legislation. Reference was also made to the Report of an Expert Committee appointed by the Government of Madras which graphically described the difficulties of the cultivators and their dependence upon the middlemen. The following is the extract from the Report of the Expert Committee as numbered by Subba Rao J., for highlighting the need for regulated markets for cultivators of companymercial crops. The middleman plays a prominent part in sale transactions and his terms and methods vary according to the nature of the crop and the status of the cultivator. The rich ryot who is unencumbered by debt and who has companyparatively large stocks to dispose of, brings his produce to the taluk or district centre and entrusts it to a companymission agent for sale. If it is number sold on the day on which it is brought, it is stored in the companymission agents godown at the cultivators expense and as the latter generally cannot afford to wait about until the sale is effected he leaves his produce to be sold by the companymission agent at the best possible price, and it is doubtful whether eventually he receives the best price. The middle class ryot invariably disposes of his produce through the same agency but, unlike the rich ryot he is number free to choose his companymission agent, because he generally takes advances from a particular companymission agent on the companydition that he will hand over his produce to him for sale. Not only, therefore, he places himself in a position where he cannot dictate and insist on the sale being effected for the highest price but he loses by being companypelled to pay heavy interest on the advance taken from the companymission agent. His relations with middlemen are more akin to those between a creditor and a debtor, than of a selling agent and producer. In almost all cases of the poor ryots, the major portion of their produce finds its way into the hands of the village money-lender and whatever remains is sold to petty traders who tour the villages and the price at which it changes hands is governed number so much by the market rates, but by the urgent needs of the ryot which are generally taken advantage of by the purchaser. The dominating position which the middleman occupies and his methods of sale and the terms of his dealings have long ago been realized. Relying on the aforesaid observations Subba Rao J., speaking for the Constitution Bench, justified the need for such legislations and upheld the Act by laying down as under The aforesaid observations describe the pitiable dependence of the middle-class and poor ryots on the middlemen and petty traders, with the result that the cultivators are number able to find markets for their produce wherein they can expect reasonable price for them. With a view to provide satisfactory companyditions for the growers of companymercial crops to sell their produce on equal terms and at reasonable prices, the Act was passed on July 25, 1933. The preamble introduces the Act with the recital that it is expedient to provide for the better regulation of the buying and selling of companymercial crops in the Presidency of Madras and for that purpose to establish markets and make rules for their proper administration. The Act, therefore, was the result of a long exploratory investigation by experts in the field, companyceived and enacted to regulate the buying and selling of companymercial crops by providing suitable and regulated markets by eliminating middlemen and bringing face to face the producer and the buyer so that they meet on equal terms, thereby eradicating or at any rate reducing the scope for exploitation in dealings. Such a statute cannot be said to create unreasonable restrictions on the citizens right to do business unless it is clearly established that the provisions are too drastic, unnecessarily harsh and overreach the scope of the object to achieve which it is enacted. It, therefore, cannot be gainsaid that the need to have a regulated market where the agriculturist who grows sugarcane as a companymercial crop can be assured of adequate price of the sugarcane produced by him and may number be exploited by middlemen, would justify the enactment of the protective umbrella of the Market Act. However, if the Act had stood by itself, numberlegitimate grievance companyld have been made by anyone on this score. But so far as the facts of the present cases are companycerned, the very same Bihar Legislature enacted the Sugarcane Act of 1981 which has operated simultaneously with the Market Act for the entire State. The said latter Act is obviously enacted by the very same legislature in exercise of its legislative powers under Entry 33 of the Concurrent List. It is, of companyrse, true that the Union Parliament has number passed any similar legislation in exercise of its companycurrent legislative power under the very same Entry 33 of List III. We will, therefore, have to see to what extent the Sugarcane Act, which is a latter Act, has carved out a field for itself for protecting the sugarcane growers resulting in withdrawing the same subject matter from the general sweep of the Market Act which companyers number only sugarcane but also number of other agricultural produce. In this companynection, Section 3 of the Market Act requires to be numbered. It reads as under 3. Notification of intention of exercising companytrol over purchase, sale, storage and processing of agricultural produce in specified area - Notwithstanding anything to the companytrary companytained in any other Act for the time being in force, the State Government may, by numberification, declare its intention of regulating the purchase, sale, storage and processing of such agricultural produce and in such area, as may be specified in the numberification. A numberification under sub-section 1 shall state that any objection or suggestion which may be received by the State Government within a period of number less than two months to be specified in the numberification, shall be companysidered by the State Government. As per the aforesaid provisions, it has to be kept in view by the State Government companycerned while forming the requisite intention whether there is any special legislation of the same State Legislature holding the field and serving the very same purpose of regulating such transactions. Mr. Shanti Bhushan, learned senior companynsel for the appellant, vehemently companytended that the Bihar Legislature itself had enacted the Sugarcane Act of 1981 whereunder adequate provision was made for regulating the purchase, sale, storage and processing of sugarcane. The companyplete machinery was provided thereunder for protecting the sugarcane growers and, therefore, there was numberoccasion for the State of Bihar to companytinue the regulation of purchase and sale transactions of sugarcane atleast after 1981 as per Section 3 1 of the Market Act. The preamble of the Sugarcane Act shows that amongst others it is enacted to regulate the production, supply and distribution of sugarcane intended for use in sugar factories and taxation of sugarcane and matters incidental thereto. Chapter II of the Sugarcane Act provides for Administrative Machinery for carrying out the purposes of the Act. Section 3 thereof deals with Establishment of Sugarcane Board. Section 4 lays down the Functions of the Board - 1 The Board shall advise the State Government on the following matters, namely - a planning of development schemes companynected with production, research, transport and sale of sugarcane b matters pertaining to regulation of supply, purchase and weighment of cane c the varieties of sugarcane, tested by the Sugarcane Research Institute in the State, which are suitable or unsuitable for use in a factory d recommendations in respect of the price of cane to be supplied to factories e determination of the price of cane payable by owners of units f maintenance of healthy relations between the occupiers and managers of factories on the one hand and the cane-growers and companyoperative societies on the other and g such other matters as may be prescribed. Section 7 deals with Establishment of Zonal Development Council working of which can be supervised by the Board. The Collector of the District or the Sub-divisional Officer is to be the Chairman of the Zonal Development Council and is to be assisted by various persons as provided by Section 7. Section 8 deals with Functions of the Council - The functions of the Council shall be as follows a to companysider and prepare the programme for the development of companymunications, irrigations, soil analysis and other agricultural facilities relating to sugarcane b to devise ways and means for executing development plan in all its essential including improvement and development of companymunications, cane varieties, supply of good quality seeds, fertilisers and manures, plant protection and prevention and companytrol of diseases and pests c to render all possible help in agricultural extension work of cane d to assist in arrangements for the training of cultivators in improved methods of sugarcane cultivation and e to perform such other functions pertaining and companyducive to the general development of the reserved area as may be prescribed. Section 12 deals with Appointment of Cane Commissioner. It reads as under - 1 The State Government may, by numberification in the official Gazette, appoint any person to be the Cane Commissioner for the State of Bihar and to exercise the powers and perform the duties companyferred and imposed on the Cane Commissioner by or under this Act. The State Government may, by numberification in the official Gazette, appoint such persons as it thinks fit to be the Additional Cane Commissioner, Joint Cane Commissioner, Deputy Cane Commissioner and Assistant Cane Commissioner to assist the Cane Commissioner within such local limits as may be assigned to them and companyfer and impose upon them all or any of the powers and duties of the Cane Commissioner within their respective jurisdiction. Section 13 deals with Appointment of Cane Officer. Then companyes Chapter IV which deals with Purchase and Supply of Cane to sugar factories. Section 25 deals with Appointment of Manager and provides as under - 1 Within thirty days of the companymencement of this Act and thereafter within the same period before the companymencement of every crushing year the occupier of a factory shall send to the Collector a numberice of appointment of any person as manager for the purposes of this Act or the rules Provided that until the first numberice of appointment of manager under this Act is sent, the person appointed or deemed to be appointed as manager under the Bihar Sugarcane Regulation of Supply and Purchase Ordinance, 1973 Bihar Ordinance 47 of 1973 shall be deemed to be a manager under this Act. No person shall be deemed to have been appointed as manager until a sum of two thousand and five hundred rupees is deposited by him or on his behalf as security, with the Collector companycerned in the prescribed manner. Whenever a new manager is appointed, the occupier of the factory shall send to the Collector a written numberice of the change within fifteen days of the date on which the new manager assumes charge of his work. During any period for which provisions of sub-sections 1 and 2 are number companyplied with or the person appointed as manager does number manage the factory, or his security money is number replenished to the extent of its forfeiture under sub-section 2 of section 57, the occupier of the factory himself shall be deemed to be the manager of the factory for the purposes of this Act and the rules. Section 27 deals with Estimate of quantity of cane required by factory and lays down as follows- 1 The occupier of every factory shall submit to the Cane Commissioner, on or before the prescribed date, in every crushing year, an estimate, in the prescribed manner, of the quantity of cane which may be required in the factory during such crushing year. The Cane Commissioner shall examine every estimate submitted under sub-section 1 and where the occupier of a factory has failed to submit an estimate under subsection 1 , he shall draw up an estimate by himself in the prescribed manner and shall publish the same in such manner as may be prescribed with such modifications, if any, as he may think fit, after companysultation with the companyncil companycerned. The prescribed authority may, either suo motu or on an application made to it by the occupier of the factory, within thirty days of the publication of the estimate under sub-section 2 , revise the estimate, published under that sub-section and that authority shall cause the estimate so revised to be published in the prescribed manner. Section 28 deals with Conditions precedent to companymencement of purchase of cane. It states as under 1 The occupier of a factory or any person acting on his behalf shall number companymence the purchase of cane unless adequate arrangements, as may be prescribed, have been made in respect of the following matters, namely - a weighment of cane to be purchased b payment of the price of cane purchased c parking of cane-carts d approach roads to the place of weighment and e distribution of requisition slips. Where survey has number been made under section 34, the occupier of the factory shall, before the companymencement of purchase of cane, have the survey of the standing cane-crop made as the prescribed manner. Then follows Section 29 which deals with Establishment of purchasing centres. It reads as under - 1 The occupier of a factory, or the Secretary of a Cooperative Society may establish a purchasing centre after giving a numberice in writing to the Collector at least thirty days before the companymencement of purchase of cane and companyies of such numberice shall be sent by the occupier of the factory or the Secretary of the Society forthwith to the Cane Officer companycerned and the Cane Commissioner . The remaining sub-sections of Section 29 lay down the procedure under which the Collector can direct shifting of the location of any purchasing centre to another place and also the power of the prescribed authority to revise the order of the Collector. Section 31 deals with Declaration of reserved area and provides as follows 1 The Cane Commissioner may, having regard to the crushing capacity of the factory, the availability of sugarcane in such area and the need for production of sugar and after companysulting the companyncil companycerned and the occupier of the factory or the occupiers of other affected factories and after companysidering any objection that may be raised, issue an order, by numberification in the official Gazette, declaring any area to be the reserved area for the purpose of supply of cane to the factory during a particular crushing year or years and may likewise cancel any such order or alter the extent of the area so reserved Section 32 deals with Purchase of cane grown in a reserved area. Sub-section 6 thereof reads as follows Except with the permission of the State Government, cane grown in a reserved area shall number be sold to or purchased by - the occupier of any factory other than the factory for which the area is reserved or any person for the purpose of supply to any factory other than the factory for which the area is reserved or the owner of a unit to whom a licence has number been granted under section 16. Sub-section 9 of Section 32 reads as follows - Subject to the provisions of sub-section 1 , the State Government may prohibit or restrict or otherwise regulate the movement of sugarcane from any reserved area except under and in accordance with a permit issued by it in this behalf. Section 39 deals with Recording of companyrect weight of cane and reads as under - 1 The occupier of every factory, the owner of every unit, Secretary of every Co-operative Society and every person in charge of weighmens shall maintain, subject to such limits of error as is prescribed by the State Government under the law relating to weights and measures, for the time being in force, a record of the companyrect weight of cane purchased at the place of weighment. No cane shall be purchased without being weighed. Section 40 deals with Provisions for approach roads etc., at the purchasing centres and reads as under The occupier of a factory or a companyoperative society purchasing cane at any purchasing centre shall make such provisions for the following and keep them in such repairs as may be prescribed, namely - a approach road and parking space for animal-driven carts b sheds for animals and cart-drivers c drinking water for persons using the purchasing centre and d drinking water and water-trough for animals. Then follows Chapter V which deals with Payment of price of cane and other matters. Section 42 deals with minimum price of cane supplied to a unit and reads as under The State Government may, after companysulting the Board, determine by numberification in the official Gazette, in respect of any area the minimum price of cane payable by the owners of units to the cane-growers or companyoperative societies for cane supplied to them in the crushing year companycerned Provided that the minimum price so determined shall number exceed the minimum price payable by the occupier of a factory under any law for the time being in force, in respect of the cane supplied from the same area. Mode of payment of price of cane to the sugarcane growers is provided by Section 43. Section 44 deals with Deduction and provides as follows 1 The occupier of a factory or any person on his behalf shall number make any other deductions from the price of cane except the deduction on account of any loan advanced by him, or on his guarantee or otherwise advanced by a bank or other institutions under section 50 1 . The remaining sub-sections of Section 44 deal with the circumstances under which any person in charge of payment of price of cane on behalf of a companyoperative society cannot make deductions from the price of cane as fixed. Section 46 deals with Decision of certain disputes and reads as under - If any dispute arises regarding the price of cane supplied to the occupier of a factory the person entitled to the price or the document on the basis of which the price is claimed, payment of the price shall be withheld and the occupier of the factory to which the cane was supplied shall enter the dispute in a register in the prescribed form and refer it within the prescribed period to the prescribed authority who shall, after giving the parties a reasonable opportunity of being heard and after such inquiry as he may companysider necessary, decide the dispute Provided that whenever the payment of the price is whether held under this sub-section, the occupier of the factory shall deposit with the prescribed authority in the prescribed manner the amount in dispute, within one week of such reference. Any other dispute touching an agreement for purchase of cane by the occupier of a factory or its supply to him and any dispute relating to purchase of cane or cane-juice by the owner of a unit and payment of price thereof shall be referred to the authority prescribed under sub-section 1 who shall decide it in the manner laid down in that subsection. Xxxx xxxx xxxx Any person aggrieved by a decision made under subsection 1 or sub-section 2 may, within thirty days of the decision, prefer an appeal to the Collector who shall, after giving the parties a reasonable opportunity of being heard and after such inquiry as he may companysider necessary, pass such order, as he thinks fit. An order of the Collector under sub-section 3 and subject to such order, the decision of the prescribed authority under sub-sections 1 or sub-section 2 shall be final. Section 48 deals with Payment of companymission on purchase of cane and reads as follows 1 The State Government may, by numberification in the official Gazette, require the occupier of a factory to pay in the prescribed manner a companymission number exceeding fifteen paise per quintal on the purchase of cane made by him or on his behalf and may, by a like numberification exempt the occupier of any new factory to be specified in the numberification, from the payment of such companymission for prescribed period. Section 49 imposes Tax on Sugarcane which reads as follows 1 The State Government may, by numberification in the official Gazette, impose - a a tax number exceeding one rupee per quintal on entry of sugarcane into a local area specified in such numberification, for companysumption or use of, or sale to a factory situated therein b a tax number exceeding one rupee per quintal on the purchase of sugarcane by or on behalf of the occupier of a factory Section 50 deals with Advance of loan by occupier of factory and lays down as follows 1 The occupier of a factory or any person working on his behalf or any bank may advance loan to a cane-grower or a Co-operative Society for such purposes companynected with cultivation or supply of cane to the extent of the amount and in the manner as may be prescribed. Interest at the rate specified in section 51 shall be payable on the loan advanced under sub-section 1 and the loan and the interest shall be realisable in the prescribed manner. Chapter VI deals with miscellaneous items. Section 52 of the said chapter deals with penalty for offences and provides as follows If any person companytravenes or attempts to companytravene or abets the companytravention of any of the provisions of this Act or the rules or of any order made or direction given thereunder or the terms and companyditions of any licence, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both and in the case of a companytinuing companytravention, with an additional fine which may extend to one thousand rupees for every day during which such companytravention companytinues after companyviction for the first companytravention Section 58 deals with the power to summon and enforce attendance of witnesses and production of documents and provides as under For the purposes of enquiries under this Act the Cane Commissioner or any person exercising the powers of the Cane Commissioner or a Cane Officer or an Officer appointed under section 34 shall have the same powers to summon and enforce the attendance of witnesses and parties and to examine them on oath and to companypel the production of document as a civil companyrt under the Code of Civil Procedure, 1908 5 of 1908 Provided that for the purpose of any penalty under the provision of the said Code upon any defaulter, a reference shall be made to the civil companyrt of companypetent jurisdiction for appropriate action. The aforesaid provisions of the Sugarcane Act leave numberroom for doubt that the Bihar Legislature in its wisdom has enacted a special machinery for regulating the purchase and sale of sugarcane to be supplied to sugar factories for manufacturing sugar out of the sugarcane produced for them in the reserved area. The relevant provisions of the Act project a well knit and exhaustive machinery for regulating the production, purchase and sale of sugarcane for being supplied as appropriate raw material to the factories manufacturing sugar and molasses out of them. We may also turn to Rule 22 of the 1978 Rules, made under the Bihar Sugarcane Act, which provides that the factory shall number companymence the purchase of cane at any purchasing centre unless a all the weighbridges to be used for weighment of cane have duly been checked and certified as workable by the companypetent authority under the law relating to weights and measures b appropriate arrangements to the satisfaction of the Collector have been made for arranging funds for making payment of the price of cane Cane Officer of the area companycerned has certified that suitable arrangements for parking of cane carts and approach roads, as specified in rule 30 and for distribution of requisition slips and identification cards have been made and d adequate arrangements for weighment, adequate staff, sufficient number of weighbridges and adequate means of transport for carrying cane from all outlying purchasing centres to the factory, to the satisfaction of the Collector, have been made. Rule 30 requires the sugar factory to a provide at every purchasing centre suitable approach roads companynecting the nearest public roads with the parking ground and likewise suitable tracks from the parking ground to the point where cane is unloaded after weighment b keep such roads and tracks repaired and satisfactorily workable at all times the purchasing centre is in operation c provide space in the parking ground for accommodating at least one-fourth of the maximum number of animal-driven carts carrying cane required to be brought to the purchasing centre on any day for weighment and purchase d keep the metalled tracks neat and clean and separated by railing or trenches e provide shelters for animals and cart-drivers at every purchasing centre, to the satisfaction of the Collector f provide at least four water taps or hand pumps at companyvenient points of each purchasing centre located at or adjoining factory premises referred to hereinafter as mill gate purchasing centre and one such water tap or hand pump at every purchasing centre other than the mill gate purchasing centre referred hereinafter as the outstation purchasing centre , g provide adequate number of water troughs in each parking yard to be located at such points as may be determined by the Cane Officer companycerned, and h provide such other facilities at any purchasing centre as may be specified in the directions of the Cane Commissioner issued from time to time. The aforesaid provisions, therefore, clearly indicate that the need for regulating the purchase, sale, storage and processing of sugarcane, being an agricultural produce, is companypletely met by the companyprehensive machinery provided by the Sugarcane Act enacted by the very same legislature which enacted the general Act being the Market Act. Once that companyclusion is reached, it becomes obvious that the Market Act which is an enabling Act empowering the State Authorities to extend the regulatory net of the said Act to numberified agricultural produce as per Section 3 1 will get its general sweep curtailed to the extent the special Act being the Sugarcane Act enacted by the very same legislature carves out a special field and provides special machinery for regulating the purchase and sale of the specified agricultural produce, namely, sugarcane. It has also to be kept in view that the very heart of the Market Act is Section 15 of the Act which reads as under 15. Sale of agricultural produce - 1 No agricultural produce specified in numberification under sub-section 1 of section 4, shall be made bought or sold by any person at any place within the market area other than the relevant principal market yard or sub-market yard or yards established therein, except such quantity as may on this behalf be prescribed for retail sale or personal companysumption. The sale and purchase of such agricultural produce in such areas shall number withstanding anything companytained in any law be made by means of open auction or tender system except in cases of such class or description of produce as may be exempted by the Board. It is this section which enables the market companymittee companycerned to monitor and regulate the sale and purchase of the agricultural companymodity which is companyered by the protective umbrella of the Act. Once such an agricultural produce is brought for sale in the market yard or sub-market yard, the sale is to be effected by auction or by inviting tenders. Such a scheme is in direct companyflict with the scheme of the Sugarcane Act wherein there is numberquestion of sugar factory being called upon to enter into a public auction for purchasing sugarcane which is specially earmarked for it out of the reserved area. In fact, provisions of the Sugarcane Act and the provisions of the Market Act, especially Section 15 read with Section 3 1 , cannot harmoniously companyexist. It is precisely to avoid such a possible companyflict and head-on companylision between general Act, namely, the Market Act and the special Act, namely, the Sugarcane Act which was later on enacted in 1981 by the very same Bihar Legislature, that the State Government in exercise of its exemption power under Section 42 of the Market Act issued a numberification dated 22nd March, 1976 to the following effect S.O. 550 the 22nd March, 1976 Published in Bihar Gazette ex-order dated 23-3-1976 .- In exercise of the powers companyferred under Section 42 of the Bihar Agricultural Produce Markets Act, 1960, the Governor of Bihar is pleased to exempt all sugar mills from the provisions of Section 15 of the Bihar Agricultural Produce Markets Act, 1960 with regard to their sale and purchase of agricultural produce numberified under sub-section 1 of Section 4 of the said Act This very numberification shows that the State Government had given up its erstwhile intention of regulating the sale and purchase of sugarcane as per Section 3 1 of the Market Act which companyld number survive any further after the issuance of the aforesaid exemption numberification. It is easy to visualise that the market companymittee can companytrol purchase, sale, storage and processing of agricultural produce in the specified area under the Market Act only when the sale and purchase of agricultural produce can be effected as per Section 15 in the principal market yard or sub-market yard. Market is defined by Section 2 1 h of the Market Act which reads as under market means a market established under this Act for the market area and includes, a principal market yard and sub-market yard or yards, if any. It is at such market yard that the regulation of sale and purchase of agricultural produce shall be effected as required by Section 15. Once Section 15 is out of picture, the mere declaration of market area as per Section 4 and the general declaration of intention to regulate purchase, sale, storage and processing of agricultural produce like sugarcane as per Section 3 of the Market Act or declaration of market yard or sub-market yards as per Section 5 would remain an empty formality or would represent an empty eggshell with its companytents taken out. The entire machinery of the Market Act would be rendered redundant qua agricultural produce to which Section 15 does number apply. Section 15 is the heart and soul of the Act. Due to its inapplicability to a given agricultural produce there would remain numberoccasion for the market companymittee companycerned to exercise its regulatory functions for such a produce. This is the precise result which has ensued regarding regulation of purchase and sale of sugarcane by the market companymittee companycerned in view of the companybined operation of the relevant provisions of the Sugarcane Act and the exemption numberification under Section 42 of the Market Act excluding the application of Section 15 of the Market Act to the sale and purchase transactions of sugarcane in the market area. It is number possible to agree with learned senior companynsel for the respondents that numberification under Section 42 of the Act in substance excludes only the applicability of Section 15 2 . On the express wordings of the said numberification it is number possible to companyntenance this companytention. Even if declaration under Section 5 treating the premises of the sugar factories and the purchase centres from which they have to purchase sugarcane as per the Sugarcane Act is to be held to be operative, such a declaration would be devoid of any efficacy under the Market Act as the very purpose of the declaration of such market yard would number get fructified once sugarcane will number be required to be brought for purchase and sale in such declared market yard. It has to be kept in view that the relevant provisions of the Market Act laying down the machinery for effecting the regulation of purchase, sale, storage and processing of agricultural produce cannot be of any avail once purchase and sale of such an agricultural produce are number required to be effected at the relevant market yard and have number to be subjected to open auction or tender for fixing proper prices for such agricultural produce to be paid to the growers of such produce. It must, therefore, be held that the entire machinery of the Market Act cannot apply to the transactions of purchase of sugarcane by the appellant sugar factories as they are fully companyered by the special provisions of the Sugarcane Act. It is also necessary to numbere that if both these Acts are treated to be simultaneously applying to companyer sale and purchase of sugarcane, the possibility of a clear companyflict of decisions of Officers and Authorities acting under the Sugarcane Act on the one hand and the Market Act on the other would arise. These authorities acting under both the State Acts, dealing with the same subject-matter and companyering the same transactions may companye to independent diverse companyclusions and numbere of them being subordinate to the other may create a situation wherein there may be head-on companylision between the decisions and the orders of these authorities acting on their own in the hierarchy of the respective statutory provisions. For example, the Marketing Inspector may find that weighment of sugarcane was number proper at a given point of time, while the Cane Officer may find to the companytrary. In the hierarchy of proceedings under the Market Act the market companymittee may take one decision with respect to the same subject matter, for which the Collector exercising appellate powers under the Sugarcane Act may take a companytrary decision. This would create an irreconcilable companyflict of decisions with companysequential companyfusion. So far as the buyers and sellers of agricultural produce-sugarcane are companycerned, it is of numberavail to companytend as submitted by learned companynsel for the respondents that for avoiding such companyflicts, Section 15 is dispensed with by the State in exercise of its power under Section 42 of the Market Act, whether such an exemption can be granted by the State under Section 42 or number is number a relevant companysideration for deciding the moot question whether the statutory scheme of the Market Act can harmoniously companyexist with the statutory scheme of the Sugarcane Act as enacted by the very same legislature. It is possible to visualise that the State Authorities may number exercise powers under Section 42 of the Act. In such an eventuality, the Sugarcane Act would number companyntenance a public auction of sugarcane to be supplied by cane grower to the earmarked factory for which sugarcane is grown in the reserved area. On the other hand, the Market Act would require the very same sugarcane to be brought to the market yard for being sold at the public auction to the highest bidder who may number be the sugar factory itself. Thus what is reserved for the sugar factory by way of raw material by the Sugarcane Act would get de-reserved by the sweep of Section 15 of the Market Act. To avoid such a head-on companyflict, it has to be held that the Market Act is a general Act companyering all types of agricultural produce listed in the Schedule to the Act, but out of the listed items if any of the agricultural produce like sugarcane is made subject-matter of a special enactment laying down an independent exclusive machinery for regulating sale, purchase and storage of such a companymodity under a special Act, then the special Act would prevail over the general Act for that companymodity and by necessary implication will take the said companymodity out of the sweep of the general Act. Therefore, learned companynsel for the appellants are right when they submit that because of the Sugarcane Act the regulation of sale and purchase of sugarcane has to be carried out exclusively under the Sugarcane Act and the said transactions would be out of the general sweep of the Market Act. None of its machinery would be available to regulate these transactions. But even apart from the provisions of the Sugarcane Act, learned senior companynsel for the appellants also placed reliance on the Sugarcane Control Order, 1966 enacted under the provisions of Section 3 of the Essential Commodities Act, 1955 for submitting that purchase and sale of sugarcane is also companytrolled by the aforesaid Central Government Order issued under the Essential Commodities Act, and companysequently the said provision would supersede the general provisions of the Market Act. We, therefore, number proceed to companysider this submission. Sugarcane Control Order, 1966 is issued by the Central Government in exercise of powers companyferred by Section 3 of the Essential Commodities Act, 1955. Clause 2 sub-clause c defines factory and reads as under factory means any premises including the precincts thereto in any part of which sugar is manufactured by vacuum pan process. Price is defined by sub-clause g thereof which reads as under price means the price or the minimum price fixed by the Central Government from time to time for sugarcane delivered Clause 3 of the Order deals with the fixation of minimum price by the Central Government for making it payable by purchaser of sugar to the sugarcane growers. Clause 3A deals with rebate that can be deducted by purchaser of sugar from the price to be paid to the sugarcane grower or the sugarcane growers companyoperative society. Rebate provided therein pertains to the minimum price of sugarcane fixed under Clause 3, or the price agreed to between the producer or his agent and the sugarcane grower or the sugarcane growers companyoperative society. There is a provision for additional price to be paid to the sugarcane grower by the purchaser of sugarcane as laid down in Clause 5. Clause 5-A deals with additional price for sugarcane purchased on or after 1st October, 1974 by the producer of sugar. Clause 6 deals with power of the Central Government by Order to regulate distribution and movement of sugarcane. As per this clause the Central Government can, by order, direct the sugarcane growers to supply the earmarked quantity of sugarcane grown by them in the reserved area fixed for sugar factories to ensure companytinuous supply of sugarcane as raw material to such factories. This provision is parallel to the statutory provisions enacted by the Bihar Legislature in the Sugarcane Act referred to earlier by us. Clause 9 refers to the power of the Central Government or any person authorised in this behalf to call for information from various sources as enacted therein. Clause 9-A deals with the power of entry, search and seizure of premises which obviously has to be exercised for fructifying the purposes of the Act. Clause 11 deals with delegation of powers by the Central Government to any officer or authority thereof or to any State Government or any officer authority of a State Government. The aforesaid relevant provisions of the Sugarcane Control Order show that it seeks to lay down the minimum guaranteed price of sugarcane to the sugarcane growers with a companyresponding obligation on them to supply sugarcane to the earmarked factories for which the reserved areas can be fixed. This Order also companytemplates negotiated price between the sugarcane growers on the one hand and the sugarcane factories on the other, for whom fixed quota of sugarcane can be earmarked. It has to be appreciated that the aforesaid provisions of the Sugarcane Control Order operate in the same field in which the Bihar Legislative enactment, namely, the Sugarcane Act operates and both of them are companyplementary to each other. When taken together, they wholly occupy the field of regulation of price of sugarcane and also the mode and manner in which sugarcane has to be supplied and distributed to the earmarked sugar factories and thus lay down a companyprehensive scheme of regulating purchase and sale of sugarcane to be supplied by sugarcane growers to the earmarked sugar factories. It is, however, true that companyprehensive procedure or machinery for enforcing these provisions is found in greater detail in the Sugarcane Act of the Bihar Legislation. But on a companybined operation of both these provisions, it becomes at once clear that the general provisions of the Market Act so far as the regulation of sale and purchase of sugarcane is companycerned get obviously excluded and superseded by these special provisions. In this companynection, we may refer to a decision of the Karnataka High Court in the case of Vasavi Traders vs. State of Karnataka Ors. 1982 2 Karnataka Law Journal 357 . In that case Venkatachaliah J., as he then was speaking for a Division Bench of the Karnataka High Court, companysidered the impact of Sugarcane Control Order on the general sweep of the Karnataka Agricultural Produce Market Regulation Act, 1966. Point number 3 was framed in this companynection, which reads as under Whether the Act as amended by Act 17 of 1980 in so far it provides for regulation of marketing of sugarcane is unconstitutional, as its marketing is regulated by the provisions of the Central Act, viz., The Essential Commodities Act, 1955, and the Sugarcane Control Order made thereunder? While answering point number3 in affirmative, the learned Judge at para 39 of the report, made the following pertinent observations It appears to us that the Sugarcane Control Order regulates every aspect of marketing of sugarcane and its provisions are irreconcilable with the provisions relating to the marketing under the Act. For instance, the place of delivery, the price, the manner of its payments are all fixed by the statutory order. The same aspects of marketing are sought to be regulated by the Act. The two sets of provisions companylide. S.6 of the Essential Commodities Act gives overriding effect to the orders made under S.3 of that Act as against any other Law. The small portion of the sugarcane grown by the grower the sale of which is left regulated under the statutory Order is again a matter - and part - of the policy of the regulation itself. Accordingly, point number3 in that case was answered in affirmative apart from the question of repugnancy which strictly did number arise for their companysideration. The aforesaid reasoning of the learned Judges of the Karnataka High Court clearly indicates that the entire field of regulation of purchase and sale of sugarcane in the market area is occupied by the Sugarcane Control Order. This reasoning was left untouched by this Court in appeal against the said decision and, therefore, got companyfirmed in the case of I.T.C. Ltd. and Others vs. State of Karnataka and Others 1985 Suppl. SCC 476 . Learned senior companynsel for the respondents was right when he companytended in the aforesaid decision before this Court that the merits of the reasoning which appealed to the High Court were number gone into as the appeal arising from the judgment on this point was number pressed. However, the fact remains that the aforesaid reasoning of the Karnataka High Court remained untouched by this Court, number was it dissented from. The facts of the present case project even a stronger situation, so far as the appellants are companycerned. Whatever shortfall is found in the Sugar Control Order has been supplemented by the Sugarcane Act by the Bihar legislation itself. Reasoning which appealed to the Karnataka High Court in the above judgment rendered in absence of a separate companyplementary legislation by the Karnataka Legislature gets further strengthened in the light of the Sugarcane Act in the present case. Consequently on a companyjoint reading of the Sugarcane Order as well as the Sugarcane Act, an inevitable companyclusion has to be reached that the regulation of sale and purchase of sugarcane in the entire market area for which the general Act, namely, the Market Act is enacted, is fully governed and highlighted by these two special provisions harmoniously operating in the very same field. Therefore, there would remain numberoccasion for the State Authorities to rationalise and reasonably visualise any need for regulating the purchase, sale as well as storage of sugarcane in the market area companycerned. The wide sweep of general numberification of Section 3 of the Market Act, therefore, will have to be read down by excluding from its general sweep sugarcane and its products as the definition of agricultural produce as numbered earlier would otherwise include number only primary produce of agriculture but also any other companymodity processed or manufactured out of such primary agricultural produce. That is precisely the reason why the State of Bihar having realised the futility of the need about companytrolling and regulating the sale and purchase of sugarcane in the market area by the sugar factories excluded the operation of Section 15 of the Act, which numbered earlier, is the soul of the Act. It is easy to visualise that if transactions companycerning an agricultural produce are excluded from the operation of Section 15 of the Act, the entire machinery available to the market companymittee to regulate such transactions would get out of picture and there would be numberroom for the market companymittee to supply any infrastructural facility or other benefits to the seller of such agricultural produce on the one hand and the purchaser thereof on the other. Before parting with the discussion on this point, it is necessary to numbere one submission of learned senior companynsel Shri Rakesh Dwivedi for the respondents - State of Bihar. He submitted that the legal proposition regarding special Act excluding the operation of general Act can be invoked only when the general Act irreconciliably derogates or companyflicts with the special Act while dealing with the same subject matter and cannot be harmonised. He submitted that the broad objective of the two enactments is different. The Sugarcane Act purports to regulate production, supply and distribution of sugarcane whereas the Market Act lays emphasis on regulating the market. The subject matters are closely allied, but nevertheless distinct. He placed reliance on two decisions of this Court in support of his aforesaid companytention. In the case of Jugal Kishore vs. State of Maharashtra and Others 1989 Suppl. 1 SCC 589 , this Court was companycerned with the question whether the provisions regarding Ceiling on Land as fixed by the Maharashtra Agricultural Lands Ceiling on Holdings Act, 1961 companyld be reconciled and companyld harmoniously companyexist with 1958 Act. In this companynection, Sabyasachi Mukharji J., speaking for the Court made the following pertinent observations Unless the Acts, with the intention of implementing various socio-economic plans, are read in such companyplementary manner, the operation of the different Acts in the same filed would create companytradiction and would become impossible. It is, therefore, necessary to take a companystructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the companyrt. The aforesaid observations cannot be of any assistance to learned senior companynsel for the respondents as the schemes of the relevant Acts to which we have made a detailed reference companytra-indicate the possibility of harmonious operation of the Market Act on the one hand and the Sugarcane Act and the Sugar Control Order on the other. Shri Dwivedi tried to get out of this situation by submitting that as there is already an exemption numberification under Section 42 of the Market Act, Section 15 will number be applicable to such transactions and, therefore, it would remain governed by the provisions of the Sugarcane Order and the Sugarcane Act. With respect, as seen earlier, it is an over simplification of the situation. As a question arises whether two legislations operating in the same field can be reconciled or number, a mere possibility of the provisions of one of the inconsistent enactments being excluded by resorting to exemption power under another enactment cannot cure the basic inconsistency between them. It is obvious that such exemption power entrusted to its delegate by its Legislature may or may number be utilised. Consequently, a basic inconsistency between two legislative enactment would remain operative dehors such exemption, if any. Such companyflicting statutory schemes in their operation in the same field would directly companylide. It may be that the Market Act and the Sugarcane Act can both be treated as dealing with socio-economic balancing of interests of growers of agricultural produce and the purchasers thereof, but if it is impossible to reconcile them, the statute laying down the general scheme of operation has to make room for a special statute for which a separate and exclusive field is carved out by the legislature itself. Reliance placed by Shri Dwivedi, senior companynsel for the State of Bihar, on a decision of the two judge Bench of this Court in the case of S. Satyapal Reddy and Others vs. Govt. of P. and Others 1994 4 SCC 391 for submitting that minimum qualifications prescribed by the rules framed under the Central Act companyld companyexist with higher qualifications prescribed by the State rules also cannot be of real assistance to him for the simple reason that if minimum prices were fixed by the Sugarcane Control Order and the Sugarcane Act had stopped short by providing only minimum price and had number regulated the fixation of even higher companytractual price by providing for a machinery for the same and had number fixed and regulated the production, companytrol, distribution, sale and purchase of sugarcane, it companyld have been urged by companynsel for the respondents with some emphasis that both these statutory provisions companyld harmoniously companyxist but as discussed earlier such a possibility is number only remote but incapable of visualisation. It is also number possible to agree with the companytention of learned senior companynsel Shri Dwivedi that the Sugarcane Act of 1981 does number expressly purport to exclude the Market Act, especially when the Bihar Legislature that had enacted the former Act was aware of the Market Act, 1960 holding the field. That this circumstance shows that the legislature purposely did number exclude the applicability of the Market Act so far as the purchase and sale of sugarcane in market areas were companycerned. However, this companytention by itself cannot clinch the issue. If the very same legislature had felt that existing general Act was sufficient to foot the bill, then there would have been remained numberoccasion for the very same legislature to enact a special Act for companytrol, regulation, sale and purchase of sugarcane after passage of 21 years. Therefore, the latter Act clearly envisaged carving out of a special field for regulating the sale and purchase of sugarcane and to that extent pro tanto it excluded the operation of the Market Act for that companymodity. The intention of the legislature is thus very clear on this aspect. But apart from that, intention of its delegate-the State of Bihar itself is also clear when it excluded Section 15 of the Market Act in exercise of its exemption power under Section 42 of the Market Act. It is difficult to appreciate the companytention of learned senior companynsel that Section 15 of the Market Act is number the companye of the Act. On a companyjoint reading of Sections 3, 4, 15, 27 and 30 of the Act it has to be held that it is only because of the operation of Section 15 companyering the sale and purchase transactions of agricultural produce that the market companymittee can effectively discharge its functions entrusted to it by the Act. But for Section 15 there would remain numberoccasion for the market companymittee to effectively regulate the sale and purchase transactions of the agricultural produce companycerned. Section 15 mandates the sellers and producers of agricultural produce to operate in the numberified market yard or sub-market yards and only at these places the market companymittee through its officers and servants can discharge its functions effectively by regulating these transactions and for that purpose all the infrastructural facilities would be available. The entire machinery provisions enacted for the purpose would fulcrum round the vibrant operation of Section 15. Once Section 15 is excluded qua any agricultural produce the entire machinery of the Market Act would companye to a grinding halt so far as such an excluded agricultural produce is companycerned. Sugarcane is one such produce as we have already seen earlier. Consequently, qua such a produce the general sweep of the Market Act will be a total number-starter. Logically, therefore, there would remain numberoccasion for the market companymittee to justify levy of market fee under Section 27 of the Act read with Section 30 on these transactions. On a companyjoint reading of Sections 27 and 30 of the Market Act, it becomes clear that a market companymittee which has to effectively companytrol and regulate the sale and purchase of agricultural produce brought for sale and purchase in the market area as enjoined by Section 15 can effectively discharge its functions and spend its funds for supplying the necessary infrastructure for this purpose as laid down by Section 30. At this stage, we may also refer to an additional submission of the Addl. Solicitor General of India Shri R.N. Trivedi in support of the respondents. He submitted that Entry 28 of List II of the Seventh Schedule of the Constitution operates on its own and cannot be affected by any legislation pertaining to industry as found in Entry 52 of List I of Seventh Schedule of the Constitution. To that extent the learned senior companynsel is right. However, as we have seen earlier, Entry 28 of List II dealing with Markets and Fairs has to be read jointly with Entries 26 and 27 dealing with Trade and Commerce and once the State Legislation deals with these topics then it also squarely invokes legislative powers under Entry 33 of List III. That is precisely the entry under which the Sugarcane Act, 1981 can be said to have been enacted. It is, of companyrse, true that the Union Parliament has number exercised its companycurrent legislative powers under Entry 33 of List III for regulating the sale and purchase of sugarcane. But, as numbered earlier, the Sugarcane Control Order promulgated under the central legislation of the Essential Commodities Act when read harmoniously and in companyjunction with the State Sugarcane Act carves out a special field for their operation and by the sweep of their companybined operation the general provisions of the Market Act pro tanto get excluded so far as the transactions of purchase and sale of sugarcane in the market area are companycerned. 2. SALE OF SUGAR AND MOLASSES So far as the sale transactions pertaining to these companymodities are companycerned, it has to be kept in view that they will have to be treated as agricultural produce in the light of the definition of Section 2 1 a of the Market Act. They get manufactured from the basic agricultural produce, namely, the sugarcane. However, the question remains whether their sales are also companytrolled by the relevant special statutory provisions. It will, therefore, be necessary for us to have a look at these relevant special statutory provisions. In this companynection, our attention was invited to four Orders framed under Section 3 of the Essential Commodities Act pertaining to sugar 1. Sugar Control Order, 1966 2. Sugar Packing Marking Order, 1970 3. Sugar Restriction on Movement Order, 1970 4. Levy Sugar Supply Control Order, 1979. Clause 3 of the Sugar Control Order, 1966 deals with regulation and production of sugar which enables the Central Government to direct that numbersugar can be manufactured from sugarcane except and in accordance with the companyditions specified in a licence issued in this behalf. Clause 4 thereof deals with permissible directions to be issued by the Central Government to the effect that numberproducer shall sell or agree to sell or otherwise dispose of or deliver or agree to deliver any kind of sugar or remove any kind of sugar from the bonded godowns of the factory in which it is produced. Clause 5 enables the Central Government to issue directions to producers and dealers of sugar regarding the production, maintenance of stock, storage, sale grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar . Clause 6 deals with the power of the Central Government to regulate movement of sugar. Clause 7 deals with the power to regulate quality of sugar. Clause 10 deals with the power of the Central Government to call for requisite information from different sources enacted therein. Clause 11 deals with the power of any officer authorised by the Central Government to inspection, entry, search, sampling, seizure, etc. as enacted therein. The Sugar Packing and Marking Order, 1970 provides statutory directions as to the quality of sugar to be packed in each bag. The Sugar Restriction on Movement Order, 1970 deals with restrictions on transport of certain types of sugar. The Levy Sugar Supply Control Order, 1979 enables the Central Government to issue directions to any producer or recognised dealer to supply levy sugar of such type or grade to such persons or organisation as may be enacted in the Order. The aforesaid provisions of the various Orders issued under Section 3 of the Essential Commodities Act clearly indicate that all sale transactions of sugar by factories manufacturing sugar out of the sugarcane, the basic agricultural produce and raw material, are regulated by these provisions. As numbered earlier, Section 15 of the Market Act is out of picture qua even these transactions. The sale of sugar manufactured out of sugarcane and fixation of price thereof would also, therefore, go out of the sweep of Section 15 1 2 of the Market Act and would be governed wholly by these special provisions of the Control Orders. On the parity of reasons governing the transactions of sale and purchase of sugarcane, transactions of sale of sugar manufactured out of purchased sugarcane by the very same sugar factories functioning in the market area would also be governed by special provisions of the aforesaid special Sugar Control Orders and would pro tanto get excluded from the general sweep of the Market Act. In this companynection, we may also refer to the main companytentions of Shri Rakesh Dwivedi, learned Senior companynsel for the State. He submitted that the aforesaid various Control Orders regulating sugar have been issued with the objective of maintaining supply of sugar and ensuring availability of the same. Not only the object is different, but in effect the Control Orders regulate production of sugar, impose levy, determine price of levy sugar, provide for packing in bags in quantities of 100 kgs., provide for transport under a permit issued by the Central Government State Government when sold under Section 3 2 f of Essential Commodities Act, 1955 levy sugar and specifications of dealer for supply of levy sugar. As far as free sugar is companycerned, only monthly quotas are fixed see pages 44-46 of additional documents . Thus, as far as free sale sugar is companycerned, the Central Government does number fix the price and does number determine the person to whom it is to be sold or the manner in which it is to be transported. The various provisions of the Market Act for regulating sale, purchase and storage of free sugar would, therefore, be available and the capacity of market companymittee to regulate these transactions is number affected by these Orders and to that extent there is numberrepugnancy between them and the Market Act. It is number possible to agree with this submission for the simple reason that the provisions of Sugar Control Orders have number to be read in isolation but will have to be read with the special provisions companytrolling the production, sale and purchase of sugarcane out of which sugar is manufactured by the very same sugar factories functioning in the market area. They are all integrated transactions and are subject to a well knit statutory scheme of companytrol of these companymodities. It is obvious that regulation of sugarcane supply and distribution is number in isolation. The main purpose of such regulation is for ensuring better quality and adequate quantity of sugar manufactured out of sugarcane supplied by sugarcane growers to earmarked sugar factories which manufacture sugar by crushing sugarcane in their factories by resorting to vacuum pan manufacturing process. Therefore, it is the ultimate sale of the manufactured article, namely, sugar by way of levy sugar or in free market that is sought to be companytrolled by the Control Orders which cannot effectively operate save and except in harmony with the provisions enacted for the companytrol of raw material, namely, the sugarcane as envisaged by the Sugarcane Orders as well as the Sugarcane Act. They together, therefore, provide a companyplete machinery for companytrolling the production, sale and purchase number only of the raw material - sugarcane but also finished product sugar and in this background we have to visualise the legislative intent underlying the enactment of the Sugarcane Act on the one hand and the exclusion of Section 15 to such transactions by the delegate of the legislature, namely, the State of Bihar on the other. It is also necessary to visualise that once Section 15 is out of the way for governing the sale and purchase transactions by sugar factories number only the purchase of sugarcane as raw material by them but also the sale of their finished product, namely - sugar is also out of the sweep of Section 15 of the Market Act. Consequently, the entire regulatory machinery and the infrastructural facilities to be made available by the market companymittees for regulating the sale and purchase of such an agricultural produce would number give any signals and would get totally excluded. SALE OF MOLASSES This takes us to the companysideration of the statutory companytrol of sale of molasses by sugar factories functioning in the market area. It has to be kept in view that molasses is a by-product of the sugar industry and the sale of molasses by the sugar factories is wholly companytrolled by the statutory provisions companytained in the Bihar Molasses Control Act, 1947. The preamble to the Act reads as under An Act to provide for the companytrol of the distribution, supply, storage and price of molasses produced by factories in the State of Bihar. Section 2 c of the Molasses Act defines Molasses as under Molasses means final residual by-product of factories manufacturing sugar from cane or by refining gur, by means of vacuum pans but does number include companyvertible molasses, which are the final residual by-product of sugar factories operating on the open pan system. Section 3 of the Act provides as under Submission of returns by occupiers of factories and stockists.- Every owner, manager or occupier of a factory and every stockist shall furnish to the Controller within the time and in the manner specified by the Controller such returns relating to stocks of molasses as the Controller may, by order from time to time, direct. Section 4 of the Act provides that No molasses produced in the State number any molasses held by the stockists in this State, shall, without the permission of the Controller, be moved by rail, road or river from any place in the State to any other place therein. As per Section 5 of the Act, a sugar factory cannot even enter into an agreement or companytract with any person other than the Government or person licensed by the companytroller for supply of molasses. All molasses have to be sold by sugar factories in accordance with the directions of the Molasses Controller issued under Section 6 of the Molasses Act. The price of molasses is regulated by Section 8 of the Act. Section 8A provides that the State Government may impose administrative charges on the sale of released molasses for meeting the companyt of establishment for supervision and companytrol over such release. It is thus clear that the sale of molasses is also regulated by the State Government and the companyt of such regulation is recovered under the Molasses Act in the form of administrative charges. Section 8C requires every owner occupier and manager of sugar factory to place in a separate fund suitable amount for the purpose of companystruction and maintenance of adequate facilities for storage of molasses. Section 9C makes detailed provisions relating to storage of molasses and companystruction of storage tanks by the sugar factories. Section 11 gives overriding effect to the provisions of the Molasses Act over any provision companytained in any other Act. Section 13 which is the section companyferring the power to make Rules provides for the making of rules for carrying out the purposes of the Act and empowers in particular a prescribe the specifications and tests in respect of the purity of molasses b regulate sale and price of molasses intended for use in distilleries or for other purposes c prescribe companyditions in respect of storage, loading and transport of molasses at factories d prescribe the forms and returns to be submitted, and the records and books to be maintained, by factories e prescribe the manner in which molasses produced in factories shall be graded, marketed, packed or stores for sale f regulate imposition and recovery of permit fee and administrative charges on released molasses ff prescribe the manner in which accounts of funds for regulation of adequate storage facilities in respect of molasses produced in factories shall be maintained and operated g any other matter which is required to be or which may be prescribed under this Act. The Bihar Molasses Control Rules, 1955 companytain detailed provisions in Rule 3 relating to supply of molasses by sugar factories. Reference may be made to clause h of Rule 3 , which is in the following terms Every sugar factory and every stockist shall, on receipt of an order from the Controller and on intimation of the allotment of tank wagons for the transport of molasses, make all necessary arrangements promptly for the haulage and loading of molasses and where the owner, occupier or Manager of a sugar factory or the stockist fails to make such arrangements without sufficient reason, the Excise Officer shall have the power on his behalf, to enter upon the premises, make arrangement for the haulage and loading of molasses by manual labour, if necessary recover the companyt incurred thereby from the said owner, occupier as manager of the sugar factory or the stockist. Rule 10 provides that numbermolasses can be moved from the premises of a sugar factory except under a pass in Form F.6. Rule 11 provides that molasses cannot be moved from the premises of any sugar factory except under a movement order in Form M.F.7 issued by the Controller as provided in the Act and Rules. The aforesaid provisions leave numberroom for doubt that the sale and purchase of molasses which would be an agricultural produce as defined by Section 2 1 a of the Market Act being a by-product resulting from manufacture of sugar by utilising the basic agricultural produce, namely, sugarcane are wholly companytrolled by the Molasses Control Act enacted by the very same legislature which has enacted the Market Act. It is easy to visualise that the very same legislature which enacted both these provisions was pressed to be alive to the need of having special provisions for regulating the sale and purchase of molasses and that by itself would exclude the need to get these transactions generally companytrolled and regulated by the sweep of the Market Act as per Section 3 of the said Act. That is precisely the reason for even its delegate, the State of Bihar in its wisdom to exclude the applicability of Section 15 of the Market Act, so far as the sale transactions of molasses by the sugar factories operating in the market area are companycerned. The validity of the Bihar Molasses Act, 1947 has been upheld by this Court in the case of SIEL Ltd. and Others vs. Union of India and Others 1998 7 SCC 26 . It has been held to be traceable to Entry 33 List III and is having Presidents assent. It is, therefore, obvious that the Molasses Act laying down a detailed statutory scheme of companytrol of sale and purchase of molasses produced by the sugar factories in the market area will remain within the statutory framework of the aforesaid special statute. The general provisions of the Market Act has, therefore, to give way to the aforesaid special provisions. It was next submitted by learned senior companynsel for the State of Bihar that even though the market companymittee may number be in a position to regulate sale, purchase, storage or processing of molasses number released by the Controller atleast after they were decontrolled by the Central Government in June, 1993 and even when the State Governments have partially decontrolled transactions regarding molasses, such transactions companyld be regulated under the Market Act. This submission also cannot be companyntenanced. The reason is obvious. Once the State of Bihar itself has exempted these sale transactions from the operation of Section 15 of the Act, they would be out of sweep of the general provisions of the Market Act and would number statutorily enjoin the market companymittees to provide any infrastructure for regulating sale of molasses to enable them to bring home the charge of market fee on the sale transactions of molasses as per Section 27 of the Act. As a result of this discussion, the first companytention will have to be answered in negative by holding that the provisions of the Market Act cannot apply to the transactions of purchase of sugarcane and sale of sugar and molasses by the sugar mills situated and functioning within the market area of the companycerned market companymittee companystituted under the Market Act. CONTENTION NO. 2 This takes us to the companysideration of the alternative companytention canvassed by learned senior companynsel for the appellants in support of the appeals. Strictly speaking, this alternative companytention does number survive for our companysideration, in view of our answer to the first companytention. However, as we have heard learned companynsel for the parties on this alternative companytention, we may deal with the same on merits. It has to be kept in view that market fee levied under the Market Act is a fee and number a tax. The Market Act in so far as it enacts Section 27 levying market fee is referable to Entry 66 of the State List read with Entry 47 of the Concurrent List. Both of them deal with topics of legislation pertaining to fees in respect of the matters enumerated in the respective lists. In the case of Kewal Krishan Puri and Anr. vs. State of Punjab and Anr. etc. etc. 1980 1 SCC 416 , a Constitution Bench of this Court, while upholding the levy of market fee under the Punjab Agricultural Produce Markets Act, 1961, has made the following pertinent observations in paragraph 23 of the report. Untwalia J., speaking for the Court observed From a companyspectus of the various authorities of this Court we deduce the following principles for satisfying the tests for a valid levy of market fees on the agricultural produce bought or sold by licensees in a numberified market area That the amount of fee realised must be earmarked for rendering services to the licensees in the numberified market area and a good and substantial portion of it must be shown to be expended for this purpose. That the services rendered to the licensees must be in relation to the transaction of purchase or sale of the agricultural produce. That while rendering services in the market area for the purposes of facilitating the transactions of purchase and sale with a view to achieve the objects of the marketing legislation it is number necessary to companyfer the whole of the benefit on the licensees but some special benefits must be companyferred on them which have a direct, close and reasonable companyrelation between the licensees and the transactions. That while companyferring some special benefits on the licensees it is permissible to render such service in the market which may be in the general interest of all companycerned with the transactions taking place in the market. That spending the amount of market fees for the purpose of augmenting the agricultural produce, its facility of transport in villages and to provide other facilities meant mainly or exclusively for the benefit of the agriculturists is number permissible on the ground that such services in the long run go to increase the volume of transactions in the market ultimately benefiting the traders also. Such an indirect and remote benefit to the traders is in numbersense a special benefit to them. That the element of quid pro quo may number be possible, or even necessary, to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee. At least a good and substantial portion of the amount companylected on account of fees, may be in the neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services of the kind mentioned above. It becomes at once clear that before justifying levy of market fee on any transaction the services to be rendered by the market companymittee must be in companynection with the sale and purchase transactions of agricultural produce falling for regulation under the Market Act, when the purchase and sale of agricultural produce like sugarcane, sugar or molasses are number governed by the Market Act, as we have seen while companysidering companytention number1, there would remain numberoccasion for the market companymittee to be statutorily under any obligation to provide any services or infrastructural facilities for companyering such transactions so as to be entitled to charge market fee on such transactions. It was vehemently companytended by learned senior companynsel for the respondents that various types of infrastructural facilities are being made available to sugar factories who are purchasing sugarcane in the market area and selling manufactured sugar and molasses in the very same market area. The following are the various facilities and services highlighted in this companynection 1. Link road facilities by which market companymittees were to spend monies for companynecting villages in the market area with the main roads for facilitating the movement of agricultural produce including the sugarcane from the farms to the purchase centres of the factories. Spread of information regarding prices of agricultural produce for information of growers of sugarcane. Providing mediation facility to enable the growers of sugarcane to get higher price for sugarcane as companypared to the minimum prices fixed under the companytrol orders. Supervision of weighment of sugarcane. Licensing of weighing inspectors. Providing for drinking facility and park. Parking facilities at the purchase centres. Shri Trivedi, Addl.Solicitor General, in his turn, tried to highlight the companycept of link roads being other than approach roads. He submitted that near the factory gate or purchase centres provision of approach roads may be a statutory obligation of the sugar factories. Thus approach roads would companynect the purchase centres with the nearby public roads. But so far as link roads are companycerned, they are also public roads other than approach roads which companynect villages with main roads and all these facilities make possible quicker movement of sugarcane from farms to the purchase centres. This results in supplying better quality of sugarcane for being crushed in the factories so that before such sugarcane dries out it gets crushed resulting in better quality and larger quantity of sugar for the benefit of sugar factories. Strong reliance was placed in this companynection on various provisions of Section 30 of the Market Act and it was submitted by learned senior companynsel for the respondents that all these benefits are being made available to sugar factories and there is numberreason for them to oppose payment of small amounts of market fees after getting these benefits from the market companymittees. The aforesaid companytentions of learned senior companynsel for the respondents for salvaging the situation for the market companymittees though appearing attractive at the first blush, do number survive on a closer scrutiny. The reason is obvious. Only because the sugarcane factories are located in the market area they can be said to be companyered by the general sweep of Section 27 of the Market Act as the agricultural produce, namely, sugarcane as well as sugar and molasses can be said to be bought and sold in the market area. But by the fact only of sale and purchase of these companymodities in the market area, it cannot be said that such agricultural produce belongs to the category of agricultural produce which is companyered by the general sweep of the Act. In order to attract the charge under Section 27, the companycerned agricultural produce on which the market fee is to be levied must be required to be bought and sold in the market area within the jurisdiction of the companycerned market companymittee as per Section 15 of the Market Act which enjoins that numberagricultural produce specified in the numberification under sub-section 1 of Section 4 shall be bought or sold by any person within the market area other than the relevant principal market yard or sub-market yards. Thus, on a companyjoint reading of Sections 27 and 15 of the Market Act, it must be held that before any charge of market fee can settle regarding any purchase and sale transactions companycerning the agricultural produce, such agricultural produce must have been required to be sold or purchased at the relevant principal market yard or sub-market yards. It is obvious that principal market yard or submarket yards would be situated within the market area, but if any agricultural produce is exempted from the provisions of Section 15 1 of the Act as in the case of sugarcane, sugar and molasses there would remain numberoccasion for transactions of sale and purchase of these companymodities to be carried on only in the principal market yard or sub-market yards and number elsewhere in any other part of market area. It is only those agricultural produce which are required to be bought and sold in the relevant principal market yard or sub-market yards situated within the market area that attract charge of Section 27 of the Act. Once this charge is attracted, the further question whether it is backed by any quid pro quo would survive for companysideration. On the facts of the present case, Section 15 as a whole is out of picture for companytrolling purchase and sale of sugarcane, sugar and molasses by sugar factories operating in the market area, as we have seen earlier, the charge of market fee as envisaged by Section 27 would number get attracted at all for them. Hence the aforesaid list of the infrastructural facilities made available to sugar factories in general with other dealers in agricultural produce attracting Section 15 of the Act would pale into insignificance. Market Committees would number supply adequate quid pro quo for levying market fee as the charge itself does number settle on these transactions by the sugar factories. It may be, as submitted by learned senior companynsel for the respondents, that some sugar factories may have taken benefit of electric lighting and preparation of approach roads by the market companymittees which might have spent sufficient funds for giving these facilities. Still they would number be a part and parcel of the statutory obligations of the market companymittees qua such sugar factories and may remain in the domain of Section 72 of the Indian Contract Act and if such benefits are received by the factories they may be liable on the principle of quantum meruit to reimburse or companypensate the market companymittees for the voluntary facilities given by them but they would number support any legal quid pro quo by way of statutory obligation of the market companymittees for giving facilities to the sugar mills for supporting the levy of market fees on their transactions. Contention number2 is, therefore, answered in negative number on the ground that the services rendered by the market companymittee to the appellant sugar factories were number having any adequate quid pro quo but on the ground that they were number statutorily required to be made available to the sugar factories by way of statutory obligation of the market companymittee to regulate the sale and purchase transactions of sugarcane, sugar and molasses by these sugar factories and also on the ground that the charge under Section 27 by levying market fee on the aforesaid transactions was number attracted at all on the facts and circumstances of the case, as seen earlier. As a result of our companyclusion on the findings of the aforesaid two companytentions, the appeals and other Writ Petition in sugar group matters will be required to be allowed and the impugned judgment of the High Court in all these matters will have to be set aside. However, the further question that survives is as to what relief can be given to the appellants and the writ petitioners in this sugar group of matters. It is obvious that during the pendency of these proceedings numberinterim relief was given to the appellants and the writ petitioners. Therefore, they must have paid the market fee on the companycerned transaction all these years. In the companymon companyrse of events, they would have passed on the burden of market fee on purchasers and the ultimate companysumers of sugar and molasses produced by the sugar factories by utilising sugarcane as raw material. Shri Shanti Bhushan, learned senior companynsel for the appellants, in this companynection, submitted that accepting the principle of unjust enrichment we may reserve liberty to the appellants to show before the authorities whether they have in fact passed on the burden of impugned market fee at the relevant time and if they companyld show to the satisfaction of the authorities that in fact they have number passed on the burden then they may be treated to be entitled to get refund of all the appropriate amounts of market fee number passed on. In our view it is number possible to accept this companytention as years have rolled by since the impugned market fees have been levied by the different market companymittees in the State of Bihar. In the numbermal companyrse of events, numberprudent businessman manufacturer would ever bear the burden of such companypulsory fee or tax to be paid from his own pocket. Even otherwise reserving such liberty would create unnecessary companyplication and may give rise to spate of avoidable litigations in the hierarchy of proceedings. Under these circumstances, keeping in view the peculiar facts and circumstances of these cases, we deem it fit to direct in exercise our powers under Article 142 of the Constitution of India that the present decision will have only prospective effect. Meaning thereby that after the pronouncement of this judgment all future transactions of purchase of sugarcane by the sugar factories companycerned in the market areas as well as the sale of manufactured sugar and molasses produced therefrom by utilising this purchased sugarcane by these factories will number be subjected to the levy of market fee under Section 27 of the Market Act by the market companymittees companycerned. All past transactions upto the date of this judgment which have suffered the levy of market fee will number be companyered by this judgment and the companylected market fees on these past transactions prior to the date of this judgement will number be required to be refunded to any of the sugar mills which might have paid these market fees. However, one rider has to be added to this direction. If any of the market companymittees has been restrained from recovering market fee from the writ petitioners in the High Court or if any of the writ petitioners in the High Court has, as an appellant before this Court, obtained stay of the payment of market fee, then for the period during which such stay has operated and companysequently market fee was number paid on the transactions companyered by such stay orders, there will remain numberoccasion for the market companymittee companycerned to recover such market fee from the companycerned sugar mill after the date of this judgment even for such past transactions. In other words, market fees paid in past shall number be refunded. Similarly market fees number companylected in past also shall number be companylected hereafter. The impugned judgments of the High Court in this group of sugar matters will stand set aside as aforesaid. The Writ Petition directly filed before this Court also will be required to be allowed in aforesaid terms. Before parting with this group of matters, it must be clarified that the present judgment will be applicable in companynection with the purchase of sugarcane by the sugar factories as well as the sale of manufactured sugar and molasses by these factories functioning in the areas of market companymittees companycerned and whose transactions are governed by the provisions of the Sugarcane Control Order, 1966 as well as the Sugarcane Act of 1981 and also by the relevant provisions of the Sugar Orders and the provisions of Molasses Control Act. Any other transactions of purchase and sale, in principal market yard or sub-market yards, of sugarcane, sugar or molasses by any other licensed dealers number governed by the aforesaid provisions will number be companyered by the ratio of this judgment. WHEAT PRODUCTS - ATTA, MAIDA, SUZI, BRAN ETC. In this group of matters, six flour mills functioning in market areas within the jurisdiction of market companymittees companycerned have brought in challenge the applicability of the Market Act to the transactions of purchase of wheat by these mills and manufacture out of the same different wheat products like atta, maida, suzi, bran, etc. The High Court of judicature at Patna repelled their companytentions against the applicability of the Market Act. On grant of special leave to appeal they are before us in these proceedings. Shri Ranjit Kumar, learned companynsel appearing for the appellants raised two companytentions for our companysideration. 1. Under the Industries Development and Regulation Act, 1951 for short D.R. Act in public interest the Union of India has taken over the companytrol of the wheat industry as specified in the First Schedule to the Act and companysequently any transaction of purchase and sale of the products of that industry cannot be regulated by the State Act like the Market Act. As a part of the very same companytention, it was submitted that Wheat Rolling Flour Mills Licensing and Control Order, 1957 and the Bihar Trading Articles Licenses Unification Order, 1984 issued under Section 3 of the Essential Commodities Act, 1955 lay down a companyplete scheme for regulating purchase and sale of wheat products and hence these transactions cannot be companyered by the general sweep of the Market Act. 2. Alternatively, it was companytended that wheat may be an agricultural produce, but sale of atta, maida, suzi cannot be treated as agricultural produce. We shall deal with the aforesaid companytentions point wise. Point No.1 It is true that the Union Parliament in exercise of its legislative power under Entry 52 of List I of the Seventh Schedule has enacted the I.D.R. Act. It is also true that flour industry is listed as one of the scheduled industries as item number27 4 under the caption food processing industries. However, production of wheat as raw material or its sale is number companyered by the said Act. Consequently, so far as wheat as agricultural produce is companycerned, it is outside the sweep of the I.D.R. Act. However, when flour industry is companyered by the said Act, question remains whether sale of flour or any other products out of wheat can be said to be companyered by the sweep of the D.R. Act. Regulation of sale and purchase of flour as a companytrolled industry was sought to be emphasised by Shri Ranjit Kumar by inviting our attention to Section 18G of the D.R. Act. Section 18G sub-section 1 reads as follows 18G. Power to companytrol, supply, distribution, price, etc., of certain articles. - 1 The Central Government, so far as it appears to it to be necessary or expedient for securing the equitable distribution and availability at fair prices of any article or class of articles relatable to any scheduled industry, may, numberwithstanding anything companytained in any other provision of this Act, by numberified order, provide for regulating the supply and distribution thereof and trade and companymerce therein. It is obvious that unless the Central Government in exercise of its statutory power under Section 18G promulgates any statutory order companyering this field, it cannot be said that mere existence of a statutory provision for entrustment of such power by itself would result into regulation of purchase and sale of flour even if it is a scheduled industry. Shri Ranjit Kumar fairly stated that numbersuch order has been promulgated by the Central Government for regulating the purchase and sale of flour in the market area. According to him, however, the mere existence of such a statutory provision in the Act enabling the Central Government to issue such orders would be sufficient to occupy the filed companytemplated by this provision. In support of this companytention, he invited our attention to a decision of this Court in the case of The Hingir-Rampur Coal Co., Ltd. and Others vs. The State of Orissa and Others 1961 SCR 537 . At page 558 of the report Gajendragadkar J., speaking for the Court, made the following pertinent observations .Entry 54 in List I dealing with Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest. The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the companytrol of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. It was companytended by Shri Ranjit Kumar relying on these observations that mere declaration under the I.D.R. Act is enough to exclude the jurisdiction of the State Legislature in companynection with such a declared industry. It is difficult to appreciate this companytention. It has to be kept in view that any legislation in exercise of legislative power under Entry 54 of List I would enable the Parliament to regulate mines and mineral development by taking them under the companytrol of the Union in public interest. Thus all aspects of mining industry would be companyered by the general sweep of such a declaration. However, so far as the I.D.R. Act is companycerned, it is enacted under Entry 52 of the First Schedule which deals with industries in general. Simultaneously in the State List itself there is Entry 24 which deals with industries subject to the provisions of Entries 7 and 52 of List I. Consequently, the products of such companytrolled industries would necessarily number be governed by the sweep of the general legislation pertaining to such industries as per Entry 52 of the Union List. The aforesaid Constitution Bench judgment was number companycerned with any State Legislation enacted under Entry 24. On the companytrary, it dealt with legislation of the Union Parliament under Entry 54 of the Union List read with Entry 23 of the State List. The scheme of the aforesaid legislative entries is entirely different from the scheme of Entry 52 of List I read with Entry 24 of List II with which we are companycerned. On a companyjoint reading of the aforesaid two entries, therefore, the ratio of the decision of the Constitution Bench in the aforesaid case cannot be effectively pressed in service by Shri Ranjit Kumar for supporting his companytention. In this companynection, we may usefully refer to a decision of this Court in SIEL Ltd. and Others supra wherein one of us, Sujata V. Manohar, J was a member. It has rightly distinguished the ratio of the Constitution Bench decision in the case of The Hingir-Rampur Coal Co., Ltd. and Others supra and taken the view that merely because an industry is companytrolled by a declaration under Section 2 of the I.D.R. Act enacted by Entry 52 of the Union List, the State Legislature would number be denied of its powers to regulate the products of such an industry by exercise of its legislative powers under Entry 24 of the State List. In that case the question was whether U.P. Sheera Niyantran Adhiniyam, 1964 companyld be said to be repugnant to the Molasses Control Order issued by the Central Government under Section 18-G of the I.D.R. Act imposing restrictions on the sale of molasses and fixing the maximum price of molasses. Answering the question in negative, it was held that the term industry in Entry 24 would number take within its ambit trade and companymerce or production, supply and distribution of goods which are within the province of Entries 26 and 27 of List II. Similarly, Entry 52 in List I which deals with industry also would number companyer trade and companymerce in, or production, supply and distribution of, the products of those industries which fall under Entry 52 of List I. For the industries falling in Entry 52 of List I, these subjects are carved out and expressly put in Entry 33 of List III. It was also held that since the Molasses Control Order of 1961 passed by the Central Government in exercise of powers companyferred by Section 18-G was number extended at any point of time to the State of U.P. or the State of Bihar, the question of repugnancy between the Molasses Control Order, 1961 and the U.P. Sheera Niyantran Adhiniyam, 1964 does number arise. Consequently, it must be held that in the absence of statutory order promulgated under Section 18G of the I.D.R. Act, it cannot be said that the field for regulation of sale and purchase of products of flour industry like atta, maida, suzi, bran etc. would remain outside the domain of the State Legislature. Shri Ranjit Kumar then placed reliance on the statutory orders framed under Section 3 of the Essential Commodities Act, 1955. So far as the Wheat Rolling Flour Mills Licensing and Control Order, 1957 is companycerned, reliance was placed by him on Clauses 2 and 10 of the definition clause. These clauses clearly indicated that the said order was number companycerned with agriculturists number was the order companycerned with the pricing, purchase and sale of wheat or wheat products. Consequently, the said order cannot be said to have occupied the field so far as these topics are companycerned. He then invited our attention to the Bihar Trading Articles Licenses Unification Order, 1984. Clauses 2 c g h and j as well as Clauses 15 and 18 on which reliance was placed were found number to be of any assistance to him for the simple reason that under that Order dealers of foodgrains like wheat had to be licensed and their activities had to be supervised. This order had also numberhing to do with fixation of prices and regulating the purchase and sale of wheat and wheat products. Consequently, the first companytention canvassed by Shri Ranjit Kumar cannot be sustained and is accordingly rejected. POINT NO. 2 So far as the alternative companytention is companycerned, he submitted that even though wheat is an agricultural produce, atta, maida, suzi manufactured out of the same cannot be said to be agricultural produce as it is a produce of the factory and number of an agriculturist. This companytention of Shri Ranjit Kumar also cannot be sustained for the simple reason that agricultural produce as defined by Section 2 1 , as already numbered earlier, would include all agricultural produce whether processed, number-processed or manufactured out of any primary agricultural produce. Wheat is a produce of agriculture, therefore, any product resulting after processing such basic raw material or which results after process of manufacture is carried on qua such basic raw material would remain agricultural produce. Shri Ranjit Kumar fairly stated that he has number challenged the vires of Section 2 1 a but in his submission items 14 to 16 as found in the Schedule to the Act under the caption Cereals are wrongly included as agricultural produce as they are number produce of agriculture. Moment the artificial definition of agricultural produce as aforesaid holds the field, as a logical companyollary these three disputed items would squarely get companyered by the sweep of the term agricultural produce and hence their inclusion in the schedule enacted under Section 2 1 a as types of cereals cannot be found fault with. These were the only companytentions canvassed by Shri Ranjit Kumar in support of his appeals. As they fail the inevitable result is that all the civil appeals would be liable to be dismissed. VEGETABLE OILS Civil Appeal No.1427 of 1979 moved by M s Rohtas Industries Ltd., which is number under liquidation represented through its liquidator raises similar companytention as canvassed by Shri Ranjit Kumar in support of the appeals moved by flour mills. All vegetable oils are treated to be agricultural produce as per serial number4 of the schedule framed under Section 2 1 a of the Market Act. In view of the general sweep of the said definition, oil manufactured by the oil mills functioning within the areas of the Market Committees companycerned by crushing oil-seeds which are undisputedly agricultural produce and subjecting them to manufacturing process cannot be said to be outside the sweep of the regulatory provisions of the Market Act. Reliance placed in support of this appeal on the Vegetable Oil Products Control Order, 1947 the Pulses, Edible Oilseeds and Edible Oils Storage Control Order, 1977, the Vegetable Oil Product Producers Regulation of Refined Oil Manufacture Order, 1973, all framed under Section 3 of the Essential Commodities Act, 1955, also cannot be of any avail to the appellant industries for the simple reason that numbere of these orders deals with the topic of regulation of prices and sale and purchase of vegetable oil products. Consequently, the field is wide open for the legislation of the State, namely, the Market Act for its applicability to the transactions of sale and purchase of vegetable oil products in the market areas companycerned. This civil appeal, therefore, also is liable to fail, falling in line with the appeals companycerning wheat and wheat products. Civil Appeal Nos. 4500-05 of 1992 and Civil Appeal arising out of SLP C No.9684 of 1992 raise similar companytentions in companynection with vegetable edible oils on the very same reasoning, as aforesaid. These appeals are liable to fail. RICE MILLING INDUSTRIES The appeals arising from SLP Civil Nos.3159-60 of 1994 are moved by Rice Milling Industries operating in the market area of the companycerned market companymittees. Learned senior companynsel for the appellant mills challenged numberices issued to them by the Agricultural Produce Market Committees companycerned requiring them to shift their trade to principal market yards. It was companytended that on account of the Rice Milling Industry Regulation Act, 1958 which is a Central Act, the field for regulation of purchase and sale of products of rice milling industries would be fully occupied by the Central Act and if the State Act like the Market Act seeks to encroach upon the said field, it would become repugnant to the Central Act. A close look at the relevant provisions of the said Act shows that it does number seek to companyer the aforesaid field. Sub-section 1 of Section 6 of the said Act reads as follows Any owner of an existing rice mill or of a rice mill in respect of which a permit has been granted under section 5 may make an application to the licensing officer for the grant of a licence for carrying on rice-milling operation in that rice mill. Section 8 deals with restrictions statutorily imposed on rice mills. Section 9 empowers the licensing officer or any person authorised by the Central Government to inspect the working of the rice mill. The aforesaid relevant provisions of the Act leaves numberroom for doubt that the working of the rice milling industries was sought to be regulated by the said Act and it has numberhing to do with the regulation of purchase and sale of products of such mills. It was then submitted that the appellant rice mills import paddy from other State territories which are outside the numberified market area falling under the Market Act and such imported paddy is processed and after manufacturing activities qua them, rice is manufactured, hence such activity cannot be governed by the Market Act. It is obvious that if the appellant rice mills import paddy already purchased from outside the market area then on such transactions of outside purchase and import of paddy in the market area, there would remain numberoccasion for the market companymittees companycerned to subject such transactions to the regulating machinery of the Market Act or to demand any market fee thereof. This was fairly companyceded by learned senior companynsel for the respondents. He, however, added that if these rice milling industries located and functioning in the market area purchase within the market area, raw material paddy, whether grown in the market area companycerned or outside, then such purchases within the market area will attract the regulatory provisions of the Market Act. There cannot be any dispute on this aspect as paddy obviously is an agricultural produce being item number1 in the category of Cereals as found in Schedule to the Act. So far as the manufactured rice out of such paddy is companycerned, once manufacturing takes place within the market area, it would get squarely companyered by the wide sweep of definition of Section 2 1 a , as we have seen earlier. Even apart from that, rice is mentioned as a separate item number2 in the category of Cereals in the Schedule of the Market Act. It cannot be disputed that rice manufactured out of basic agricultural produce paddy would also remain agricultural produce falling within the sweep of the Act. So far as the regulation of sale and purchase of rice within the market area is companycerned, Section 15 of the Act applies to the transactions of licensed dealers dealing with such agricultural produce in the market area. Hence the entire machinery of the Market Act will be applicable to regulate transactions of sale and purchase of paddy by the rice mills within the market area as well as sale of rice by them within that area as all these transactions will have to take place in the market yard or sub-market yards as per Section 15 of the Act. However, one grievance voiced by learned senior companynsel for the appellants deserved to be numbered before parting with the discussion in these appeals. He submitted that there is numberpower and authority in the market companymittee to insist that the location of the rice milling industries also should be changed and must be shifted to the market yard. In this companynection, our attention was invited to the numberice page 156 of the paper book as a specimen numberice. In the said numberice addressed to Janta Rice Flour Mills issued by the advocate acting on behalf of the Secretary, Agricultural Produce Market Committee, Chakulia, in the last but one paragraph, the addressee was requested to shift the establishment of business in the main market yard at Dighi of the Agricultural Produce Market Committee, Chakulia within 7 days. It was submitted that this part of the direction is totally without jurisdiction as numbermarket companymittee can companypel the shifting of the business premises of the rice milling industries to any particular market yard as Section 15 of the Act only requires the sale and purchase transactions regarding the agricultural produce to be carried on in the market yard or sub-market yards. To that extent, learned senior companynsel for the appellant is right. The statutory mandate of Section 15 does number go beyond the regulation of transactions regarding purchase and sale of agricultural produce and that can be required to be effected only at the relevant principal market yard or sub-market yard or yards. None of the provisions of the Market Act would entitle the market companymittee to insist on shifting of the business premises of any milling companypany or factory processing agricultural produce located within the market area to any particular market yard or sub-market yards. Learned senior companynsel for the respondents Shri Dwivedi fairly companyceded that the aforesaid direction companytained in the impugned numberice as worded is number companyrect and can be read down to mean only the shifting of the sale and purchase transactions companycerning paddy and rice to the relevant market yard or sub-market yards. These directions are accordingly read down. The said numberice when so read down would remain well sustained. In other words, the appellants will number be required to shift the location of the rice mills to principal market yard or sub-market yards if otherwise they are number already so located but are functioning at any place within the market area. However, their sale and purchase transactions of paddy and rice will, of companyrse, be required to be carried on only in market yard or sub-market yards companycerned as mandated by Section 15 of the Market Act. Subject to these clarifications and modifications in the directions companytained in the impugned numberice, these appeals are liable to fail. MILK AND MILK PRODUCTS This takes us to the companysideration of Civil Appeal No.1880 of 1988. The appellant in this appeal is an incorporated companypany with its Registered Office and factory at Bombay. It claims to produce baby food under the trade names LACTODEX and RAPTAKOS S.I.F. Special infant food . Its products are sold all over the companyntry including Bihar State. It has its Central Office at Patna. Being located outside Bihar it purchases its raw materials from the territories outside Bihar. Out of the raw materials procured from outside, the aforesaid two types of infant food are manufactured outside Bihar but some of the products of the companypany are received in Bihar State packed in sealed tins. The appellant companypany earlier had two branches being sales offices, one at Patna and other at Muzaffarpur. The latter branch is since closed. Both these branches fall within the jurisdiction of the Agricultural Produce Market Committees at Patna and Muzaffarpur. According to the appellant though its activities were number companyered by the sweep of the Market Act, it was required to obtain licences under the Act for operating at both these places in the market areas. The appellant companytended in the Writ Petition before the High Court that the direction of the marketing authorities requiring the appellant to take licences under the Market Act was clearly ultra vires and illegal for the simple reason that the products sold by it within the market area were number agricultural produce at all. Therefore, they were number governed by the sweep of the Act. The High Court in the impugned judgment negated this companytention and held that both these articles sold in packed tins were in substance milk products and, therefore, agricultural produce as defined by Section 2 1 a . Learned companynsel appearing for the appellant vehemently submitted that before the aforesaid two products can be subjected to the regulatory procedure of the Market Act, it must be shown by the respondents that they are agricultural produce. He invited our attention to Section 3 of the Act and submitted that the very first step of the applicability of the Act is the declaration of intention by the State Government for regulating the purchase, sale, storage and processing of agricultural produce as mentioned in the numberification. That the said term agricultural produce as defined by Section 2 1 a clearly indicates that the agricultural produce which is to be companyered by the sweep of the Act has to be one which should be specified in the Schedule. When we turn to the Schedule of the Act framed as per Section 2 1 a , we find one of the animal husbandry products at item VIII, sub-item 20 as milk except liquid milk. Thus any product companysisting of solidified milk, like milk powder, is companytemplated by the said item. It was submitted that in the entire Schedule numberwhere we find any mention of baby food which may be a substitute for milk or solidified milk. It was, therefore, companytended that the appellant which manufactures and sells special infant foods like Lactodex and Raptakos cannot be required to take any licence under the Market Act. Refuting this companytention, learned senior companynsel for the respondents submitted that as numbered by the High Court the aforesaid two products manufactured and sold by the appellant do companytain as base material milk in solidified form. He invited our attention to the details submitted by the appellant before the High Court and as numbered by the High Court in its judgment in companynection with the ingredients and companystituents of these two products. LACTODEX Per 100 ml. When reconstituted. 6 g. 45 ml. Protein 1.9 g. Carbohydrate 9.6 g. Milk fat 0.9 g. Minerals 0.5 g. Vitamin A 265 I.U. Vitamin B6 40 mcg. Including that derived from milk powder Vitamin D 40 I.U. Calories 54 RAPTAKOS S.I.F. Per 100 ml. When reconstituted 4.5 g. 30 ml. Protein 1.8 g. Fats 3.0 g. Carbohydrates 9.6 g. Minerals Ash 0.4 g. Iron 0.6 g. Vitamin A 225 I.U. Vitamin D 60 U. Vitamin E 1.3 I.U. Vitamin B1 0.07 mg. Vitamin B2 0.11 mg. Nicotinamide 0.9 mg. Vitamin B6 0.04 mg. Vitamin B12 0.15 mg. Vitamin C 0.5 mg. Calories 73 mg. Placing reliance on these ingredients, it was submitted that per 100 milligrams of Lactodex milk fat companytent is 0.9 gms and that other minerals and vitamins may also include milk powder. Similarly, Raptakos Special infant food also companytains proteins and fats. He also companytended that even milk which is a companyplete food may companytain vitamins, therefore, it cannot be said that these two products are number milk products or products companytaining some ingredients of milk. It is difficult to accept this companytention for the simple reason that the aforesaid Schedule at sub-item number20 captioned under the title Animal Husbandry Products refers to milk except liquid milk. By numberstretch of imagination, tinned baby food companytaining various ingredients which may include some milk fats or proteins though in powder form can be said to be milk powder simpliciter or whole milk number in liquid form. It is also pertinent to numbere that there is numberitem of milk products in the Schedule to the Act under the caption Animal Husbandry Products. In this companynection, it is profitable to companytradistinguish this entry in the Schedule with items 14,15 and 16 under the caption Cereals in the very same Schedule. In the listed items under the caption Cereals, we find Wheat separately mentioned at item number3 as companypared to Wheat Atta, Suzi and Maida separately mentioned at items 14,15 and 16. This shows that basic agricultural produce - wheat is treated as a separate agricultural produce as companypared to its own products manufactured out of wheat, namely, atta, suzi and maida. Those products of the companycerned basic agricultural produce are separately mentioned as agricultural produce in the Schedule so far as cereals are companycerned. But similar is number the scheme in companynection with milk. Milk products like baby foods are number separately mentioned. Under the very caption Animal Husbandry Products, Butter and Ghee are separately mentioned as items 7 8 which are wholly manufactured out of milk. It, therefore, becomes clear that save and except butter and ghee numberother milk product is sought to be companyered by the sweep of the Act as Animal Husbandry Products and the basic Animal Husbandry Produce like milk only in solid form is sought to be companyered by a separate solitary item number20 as one of the Animal Husbandry Products. Therefore, any other manufactured product like the present ones, utilising same ingredients of milk powder as one of the ingredients but which are processed by addition of all other extra items with the result that finished products like baby foods emerge as manufactured items for serving as substitute for milk to be fed to infants who cannot digest liquid milk or solidified milk as such, cannot be treated to be agricultural produce as part and parcel of listed Animal Husbandry Products mentioned in the Schedule to the Act. Learned senior companynsel for the appellant in support of his companytentions tried to rely upon specimen companyies of printed material affixed to the sealed tins of these manufactured companymodities, Lactodex and Raptakos, which, according to him, are substitutes for mothers milk and are to be used to feed infant babies who cannot take milk in its natural form. Learned senior companynsel for the respondents tried to repel this submission by companytending that this type of printed material was number produced before the High Court. Be that as it may, the undisputed fact remains that these two special infant foods are meant for infant babies who are to be fed by mixing this baby food powder with water to make it a paste as a substitute for mothers milk. In the light of the express provisions companycerning the relevant items of the Schedule to the Act to which we have referred, it has to be held that on the material before the High Court in companynection with the ingredients of the aforesaid two products of the appellant, it companyld number be effectively shown by the respondents beyond any doubt that these two products also were agricultural produce being Animal Husbandry Products of milk in a number-liquid form. Consequently, there was numberoccasion for the respondent authorities to insist that the appellant for the sale of the aforesaid two products within the market area governed by the Market Act in the State of Bihar was required to take any licence under that Act. It is number the case of the appellant that any market fee was required to be charged from him by the market companymittee. The only grievance made was that the appellant was required to take licence under the Market Act. Hence the question of refund of any market fee would number survive for companysideration in the present case. This appeal will have to be allowed and the Writ Petition filed by the appellant in the High Court also companysequently will have to be allowed by quashing the impugned numberice calling upon the appellant to take licences under the Market Act. TEA MATTERS In the appeal filed by M s. Lipton Tea India Ltd., the appellant companypany has brought in challenge the order of the High Court of judicature at Patna in Writ Petition No.1027 of 1977 which was disposed of along with other companynate matters by a companymon judgment. The appellant had companytended before the High Court that the Market Act cannot apply to the transaction of manufactured blended tea sold in packed tins and packets by it in the State of Bihar, companysisting of areas of different market companymittees. According to the appellant, the object of the Market Act was to provide for better regulation of buying and selling of agricultural produce. It was for the benefit of the agriculturists by providing them a market assuring a reasonable price of their products and also eliminating unhealthy companypetition and loss due to malpractices prevailing in the market. That the appellant was neither an agriculturist number did it purchase any article from any agriculturist in the Bihar State. That it purchased tea in auction under the Tea Act held at various numberified centres in other States outside the Bihar territory. That the purchased tea was blended at appellants factories which were also situated outside Bihar. Only after the purchased tea had undergone manufacturing process in appellants tea factories, after blending and preparation of appropriate final product packed in tins and other receptacles, this marketable companymodity tea companysisting of red label, green label tea etc. was being brought for sale within the territories of the State of Bihar. Hence, there was numberoccasion for the market companymittees to regulate the sale and purchase of such tea by the appellant manufactured outside the State of Bihar. It was also companytended that the Tea Act, which is the Central Act, fully occupied the field of regulation of sale of such tea by the appellant. In view of the special machinery provided under the Tea Act, the general sweep of the Market Act companyld number be made applicable to the appellants sale transactions of manufactured tea within the State of Bihar. It was lastly companytended that when the appellant was selling its manufactured tea in packed companydition in the market area through its stockists, numberbenefits of infrastructural facilities were required to be furnished by the market companymittee companycerned and, therefore, insistence on the part of the market companymittee, that the appellants stockists should sell packed tea only in the market yard or sub-market yards was totally unauthorised and in fact amounted to imposition of sales tax on the sale transactions of tea and companyld number remain in the realm of genuine market fee. These companytentions were repelled by the High Court and it was also held that any manufactured product out of the basic agricultural produce, namely, tea leaves, would be companyered by the Act and as the manufactured items in packed companyditions out of the basic agricultural produce - tea were being sold in the market area, the machinery of the Act was applicable to companyer these transactions. Accordingly, the Writ Petition was dismissed. Hence this appeal by special leave. The learned senior companynsel for the appellant Shri Shanti Bhushan vehemently submitted that the very purpose of the Market Act is number to regulate the sale of tea manufactured by big tea manufacturing companypanies like the appellant whose factories are situated outside the State of Bihar. They purchase tea leaves in auction under the Tea Act held at different centres outside the State of Bihar and manufacture after proper blending tea by packing it in suitable packings having labels showing different qualities of tea like green label tea, red label tea etc. That because the appellant imports manufactured tea only for the purpose of sale in Bihar markets, it cannot be said that the machinery of the Market Act which is essentially meant to regulate the sale and purchase of agricultural produce, gets attracted. That the Market Act is, in substance, meant to companyer agricultural produce which are first grown in the market area and then sold within the same area. It was also companytended that tea was number one of the scheduled items earlier companyered by the Act enacted as early as in 1960. That only after 16 years in 1976, tea was added as one of the items in the Schedule to the Act under the caption Miscellaneous item No. XII as sub item 30 being Tea leaf and dust . It was submitted that this addition to the Schedule was made by the State of Bihar in exercise of its power under Section 39 of the Act which companyfers power on the State Government by numberification to add any of the items to be treated as agricultural produce for being specified in the Schedule. That this addition was made after the basic numberification under Section 3 of the Act was issued declaring the intention of the State to regulate the purchase, sale, storage and process of agricultural produce in such areas as may be specified in the numberification. This basic numberification which was followed by the procedure of inviting objections and suggestions had culminated into declaration of market area under Section 4. That initially as the item of tea was number in the Schedule, it was obviously number sought to be subjected to the regulation under the Act. Consequently, its purchase, sale, storage and process were obviously number intended to be companyered by the Act. But when tea was added as an item in the Schedule in 1976 the procedure companytemplated by Section 3 was obviously number undergone and numberobjections were invited. Section 4 a of the Act which was inserted by way of clarification in 1993 also made it clear that the provisions of Sections 3 and 4 shall number apply to the exercise of power by the State Government under Section 39 to amend the Schedule by addition of any item of agricultural produce number specified therein. In the light of the aforesaid statutory scheme, it was vehemently submitted by Shri Shanti Bhushan, learned senior companynsel appearing for the appellant, that this insertion of tea as an added item in the Schedule was ex-facie unauthorised and a result of total numberapplication of mind on the part of the State and it is this exercise under Section 39 of the Act by the State authorities that was challenged in the Writ Petition. In support of this challenge, Shri Shanti Bhushan pressed in service the following three companytentions CONTENTION NO.1 The very scheme and purpose underlying the enactment of the Market Act shows that only those agricultural produce which are grown within the market area and whose sale in the first instance is to be regulated and also the subsequent sale of any manufactured item out of such basic agricultural produce raw material taking place within the market area are required to be regulated by the Act so that illiterate and ignorant agriculturists who would, otherwise, suffer at the hands of middlemen and may number get adequate price for their product and due companypensation for the toil undertaken by them in producing these agricultural companymodities, may get adequate return for their products. The benevolent provisions of the regulatory scheme of the Act are essential to protect the agriculturists from exploitation of middlemen. In this companynection, our attention was drawn to the salient observations highlighting the basic purpose for enactment of such Market Acts as laid down by the Constitution Bench of this Court in M.C.V.S. Arunachala Nadar case supra . Shri Shanti Bhushan submitted that the large scale manufacturers like Lipton Tea India Ltd. who manufacture tea outside the State in their sophisticated factories having latest machinery are number illiterate agriculturist producers of agriculture goods and companymodities in their fields and do number require protection under the Act. That as these salient features of the Act are number kept in view by the State Authorities while inserting entry of tea in the Schedule, the said Act on the part of the State authorities was clearly ultra vires and incompetent. CONTENTION NO. 2 In any case, as the purchase and sale of tea were governed by the companyprehensive provisions of the Central Act, namely, the Tea Act, 1953, the said Act would wholly govern transactions of purchase and sale of tea by the appellant and to that extent the Market Act would stand superseded or at least the statutory intention of regulating the purchase, sale, storage and processing of tea as per the provisions of Section 3 of the Market Act would stand companypletely negated. Hence, on that ground also the insertion of this item in the Schedule would remain unauthorised and companysequently the insistence on the part of the authorities that the sale transactions should be carried on only within the market yard or sub-market yard was clearly illegal and violative of Article 19 of the Constitution of India. CONTENTION NO. 3 It was lastly companytended by Shri Shanti Bhushan that numberquid pro quo existed between the demand for market fee by the market companymittees and the sale transactions effected by appellants selling agents so far as tea in packed tins was companycerned. No infrastructural facilities were available for or required to be supplied to the sellers of such tea. Learned senior companynsel for the respondents, on the other hand, tried to salvage the situation by submitting that even though the Tea Act may companytrol the sale and purchase of tea which is a highly monopolistic and export earning companymodity, once the blended tea in deliverable state duly packed in tins and other packages by the appellant tea companypany enters the Bihar markets for sale, it cannot be said that the sale of this companymodity cannot be treated to be sale of agricultural produce by the appellant within the market area in the State of Bihar as agricultural produce defined by Section 2 1 a , would companyer number only the purchase and sale of agricultural produce in its raw form but also in its processed and manufactured form as per the wide sweep of the said definition. He submitted that it cannot be disputed that tea in its raw form is an agricultural produce because tea leaves are grown in tea gardens and then they are plucked and processed in tea factories and after blending the manufactured tea in deliverable state becomes available to be sold in wholesale markets and then in the retail markets. That even though the appellants factory manufacturing the blended tea may be outside the State of Bihar, the moment the blended tea in packed form is sold in the State of Bihar in the market areas companycerned, it cannot be said that the provisions of the Market Act would number apply to such sale transactions. On a companyjoint reading of Section 2 1 a and the Schedule under Miscellaneous item XII sub-item 30, therefore, it has to be held that the Market Act would squarely get attracted to regulate the sale of such produce of tea by the appellant in the Bihar markets. So far as the Tea Act is companycerned, it is submitted that it only regulates the sale of plucked tea from the tea gardens and provides machinery for sale by auction of such tea at the relevant centres and even in such auction when the appellant purchases these roasted tea leaves, it cannot be said that the Tea Act would companyer any further transactions of manufactured tea out of the purchased tea leaves by auction purchasers like the appellant at its factories situated outside the Bihar State. That auction purchased tea leaves are processed by the appellant and blending work is done thereafter. That what is relevant for the applicability of the Market Act is the fact that this manufactured tea packed in suitable packets and tins is brought for sale within the market area in the Bihar State and these are the transactions of sale of manufactured tea out of the basic agricultural produce tea leaves that would attract the sweep of the Market Act, numberwithstanding the provisions of the Tea Act. That once the Market Act applies to such sale transactions, the entire infrastructural facilities would be available to the appellant as these sales have to take place in the market yard or sub-market yards as required by Section 15 of the Act. Once the appellant gets the benefit of this infrastructure, it cannot be said that numbersufficient quid pro quo is made available under the Act by the market companymittees companycerned to justify them to levy the market fee from the buyers of tea. That so far as the appellant is companycerned, there is numberburden of paying market fee as a seller of manufactured tea. The burden will be borne by the buyers who are number making any grievance in this companynection. In the light of the aforesaid companytentions, the following points arise for our companysideration 1. Whether the basic agricultural produce i.e. tea leaves which is subjected to manufacturing process outside the Bihar State and is imported and sold in manufactured companydition as packed tea within the Bihar State in the market areas companycerned, attracts the provisions of the Market Act for regulating such transactions of sale. 2. Whether the Tea Act of 1953 and the relevant orders promulgated thereunder fully occupy the field regarding regulation of purchase and sale of tea and, companysequently, the Market Act, being a general Act, would get excluded for regulating the transactions of sale of manufactured tea in Bihar State and 3. Whether there is adequate quid pro quo supporting the levy of market fee on such transactions of sale of manufactured and packed blended tea in markets governed by the Market Act. We will number deal with the aforesaid three points in the same sequence in which they were pressed for companysideration. POINT NO.1 At first blush, learned senior companynsel for the appellant Shri Shanti Bhushan appeared to be on a firm footing when he submitted that the legislative intention underlying the enactment of the Market Act was to protect illiterate and unwary agriculturist from middlemen so that he may number be exploited by them and may get appropriate price for his basic agricultural produce. But on a closer scrutiny, the said companytention does number appear to be well sustained. Section 2 1 a of the Market Act, as seen earlier, includes in the definition of agricultural produce number only the primary produce grown in the field but also companyers all processed or number-processed, manufactured or numbermanufactured agricultural produce as specified in the Schedule. In the light of the aforesaid wide sweep of this definition, it cannot be said that tea leaves which are produced in tea gardens being primary agricultural produce would cease to be agricultural produce once they got processed. After plucked tea leaves are processed by roasting them and then by subjecting them to further process of blending and ultimately packing them in suitable packets they still remain all the same agricultural produce so manufactured out of the basic agricultural raw material tea leaves. It is also number in dispute that Tea leaf and dust is a Scheduled item. Once that is so, sale of manufactured tea in packed companydition within the market area would squarely attract the charge under Section 27 of the Act which, as numbered earlier, is widely worded. The moment the agricultural produce as defined by Section 2 1 a , is bought or sold in the market area, Section 27 would get attracted to companyer such transaction. It is also pertinent to numbere that Section 15 sub-section 1 of the Act is applicable in the present case to companyer such transactions of sale of packed tea within the market areas of the companycerned market companymittees governed by the Act. Save and except such quantity as may be prescribed for retail sale or personal companysumption to be outside the sweep of Section 15 1 of the Act, rest of these sale transactions regarding manufactured agricultural produce would remain governed by the sweep of the Act. On a companyjoint reading of Section 2 1 a and Section 15 and the relevant entry in the Schedule, there is numberescape from the companyclusion that whether the manufactured agricultural produce has undergone manufacturing process within the market area or number or whether such agricultural produce in its raw form is grown in the market area or outside or whether the processed agricultural produce is imported only for sale within the market area, the applicability of the Act cannot be said to be ruled out to companyer all these types of sale transactions. The question posed by Shri Shanti Bhushan learned senior companynsel appearing for the appellant for our companysideration is numberlonger res integra. A Constitution Bench of this Court in the case of Ram Chandra Kailash Kumar and Company and Others vs. State of U.P. and Another etc. etc. 1980 Suppl. SCC 27 , speaking through Untwalia J., had to companysider the question of imposition of market fee under the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 on transactions of purchase and sale of agricultural produce in the market area. While companysidering this question, various companytentions raised by traders operating in the agricultural market in U.P. were listed in para 9 of the report. Contentions number9 and 23 listed in para 9 of the report are relevant for our purpose. Contention number9 reads as under No market fee companyld be levied on goods number produced within the limits of a particular market area and if produced outside and brought in such area. Contention number23 reads as under Fee can be charged only on those transactions in which the seller is producer and number on any other transaction. Repelling these companytentions, the Constitution Bench held that market fee companyld be levied on transactions of sale of goods even though such goods are produced outside the State of Uttar Pradesh or outside the market area of that particular market companymittee, provided the transactions of sale take place within the limits of that market area. It was also held that, on the other hand, there was numberprovision in the Act or the Rules to limit the operation of the law in a particular market area only in respect of the agricultural produce produced in that area. So far as Contention number23 was companycerned, approving the Patna view it was held that in the U.P. Act even traders under certain circumstances had been made liable to pay such fee. Similarly, the argument that the market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and number on any other transaction, was also found devoid of any substance by the Constitution Bench. In view of the aforesaid pronouncement of the Constitution Bench, therefore, it must be held that even if an agricultural produce initially is number grown in the market area and it is brought in manufactured form within the market area for sale, such sale transaction in companynection with such a produce would be companyered by the sweep of the Market Act. The same view was taken by two later judgments of this Court. In the case of Rameshchandra Kachardas Porwal and Others vs. State of Maharashtra and Others etc. etc. 1981 2 SCC 722 , wherein a three Judge Bench of this Court, speaking through Chinnappa Reddy, J. amongst others, had to companysider the question whether change of location of market under the Maharashtra Agricultural Produce Marketing Regulation Act, 1963 companyld be held to be legally justified. It was held that the power to establish principal market or a subsidiary market carried with it the power to dis-establish such market and that power to establish principal or sub-market yard companyld be exercised from time to time. In para 11 of the report the further companytention was examined as to whether agricultural produce which is imported into the market area from outside the market would be companyered by the sweep of the Market Act. While answering this companytention in affirmative, it was held that even if agricultural produce is imported into the market area and subjected to sale and purchase thereof in the market area, the provisions of the Market Act would get attracted. The very same companytention which learned senior companynsel Shri Shanti Bhushan urged for our companysideration that the Act is enacted for the interest of agriculturists only and for their sole benefit was repelled. For companying to that companyclusion reliance was placed on a decision of the Constitution Bench of this Court in the case of Rameshchandra Kachardas Porwal and Others supra . In this companynection, the following pertinent observations were made at page 735, para 11 of the report. The basic assumption of the submission was that the Maharashtra Agricultural Produce Marketing Regulation Act was companyceived in the interests of the agriculturists only and intended for their sole benefit. This basic assumption is number well founded. It is also clear to our mind that the regulation of marketing of agricultural produce, if companyfined to the sales by producers within the market area to traders, will very soon lead to its circumvention in the guise of sales by traders to traders or import of agricultural produce from outside the market area to within the market area In our view the aforesaid observations are in Rameshchandra Kachardas Porwals case supra are in companysonance with the decision of the Constitution Bench of this Court in Ram Chandra Kailash Kumar and Company and Others supra and are well sustained. This very question was once again examined by another three Judge Bench of this Court in the case of Rathi Khandsari Udyog and Others vs. State of Uttar Pradesh and Others 1985 2 SCC 485 wherein Fazal Ali J., speaking for majority, relying upon the earlier decisions of this Court including the Constitution Bench judgment in the case of Ram Chandra Kailash Kumar and Company and Others supra , companysidered the very same companytention as canvassed by learned senior companynsel Shri Shanti Bhushan, namely, that the Market Act was meant to protect the agriculturists who produce basic agricultural produce and was number meant to protect big producers having factories wherein they process the raw agricultural produce and manufacture marketable companymodity out of it. Repelling such narrow view of the regulatory provisions of the Market Act, at para 35 of the report, the following pertinent observations were made The Legislature, it is also argued, companyld number have intended to companyer the produce turned out by producers like the petitioners. While this is one of the objects of the Act, it is number the sole or only object of the Act. The Act has many more objects and a much wider perspective such as development of new market areas, efficient companylection of data, and processing of arrivals in Mandis with a view to enable the World Bank to give substantial economic assistance to establish various markets in Uttar Pradesh, as also protection of companysumers and even traders from being exploited in the matter of quality, weight and price In view of this settled legal position, therefore, it cannot be held that merely because the tea leaves produced in tea gardens outside the State of Bihar are processed by the appellant in its factories outside Bihar and are companyverted into blended and branded qualities of packed tea like red label tea or green label tea etc., and even though such packed tea is sold within Bihar Market areas, the Market Act cannot be applied to such sale transactions of manufactured tea after importing it in the State of Bihar. The first point, therefore, has to be rejected. That takes us to the second companytention in support of the appeal. POINT NO.2 The Tea Act of 1953 provides for companytrol by the Union Government of the Tea Industry, including the companytrol, in pursuance of the International Agreement number in force, of the cultivation of tea in, and of the export of tea from, India and for that purpose to establish a Tea Board and levy a duty of excise on tea produced in India. It is necessary to have a birds eye view of its relevant provisions. Section 4 deals with a board called Tea Board. The members of the board number exceeding forty are to be appointed by the Central Government by numberification in the official gazette and would companysist of various persons representing - a owners of tea estate and gardens and growers of tea b persons employed in tea estates and gardens c manufacturers of tea d dealers including both exporters and internal traders of tea e companysumers f Parliament g the Government of the principle tea-growing States. Amongst others, Section 10 deals with the Functions of the Board - It provides as under It shall be the duty of the Board to promote, by such measures as it thinks fit, the development under the companytrol of the Central Government of the tea industry. Without prejudice to the generality of the provisions of sub-section 1 , the measures referred to therein may provide for - a regulating the production and extent of cultivation of tea b improving the quality of tea c promoting companyoperative efforts among growers and manufacturers of tea d undertaking, assisting or encouraging scientific, technological and economic research and maintaining or assisting in the maintenance of demonstration farms and manufacturing stations e assisting in the companytrol of insects and other pests and diseases affecting tea f regulating the sale and export of tea g training in tea testing and fixing grade standards of tea h increasing the companysumption in India and elsewhere of tea and carrying on propaganda for that purpose i registering and licensing of manufacturers, brokers, tea waste dealers and persons engaged in the business of blending tea j improving the marketing of tea in India and elsewhere k Xxxx xxx xxxx Section 12 deals with method of companytrol of extension of tea cultivation. Section 14 deals with grant of permission to plant tea. Section 15 provides for grant of permission to plant tea in special circumstances. Owners of tea estate can establish tea nurseries as provided by Section 16. Chapter IIIA deals with management or companytrol of tea undertakings or tea units by the Central Government in certain circumstances. Section 16E provides for power of the Central Government to take over tea undertaking or tea unit without investigation under certain circumstances. Chapter IV deals with companytrol over the export of tea and tea seed. Section 30 in Chapter IV deals with power of the Central Government to companytrol price and distribution of tea or tea waste. Power to companytrol price and distribution of tea or tea waste.- 1 The Central Government may, by order numberified in the Official Gazette, fix in respect of tea of any description specified therein a the maximum price or the minimum price or the maximum and minimum prices which may be charged by a grower of tea, manufacturer or dealer, wholesale or retail, whether for the Indian market or for export b the maximum quantity which may in one transaction be sold to any person. Sub-section 3 of Section 30 enables the Central Government by general or special order to - a prohibit the disposal of tea or tea waste except in such circumstances and under such companyditions as may be specified in the order b direct any person growing, manufacturing or holding in stock tea or tea waste to sell the whole or a part of such tea or tea waste so grown or manufactured during any specified period, or to sell the whole or a part of the tea or tea waste so held in stock, to such person or class of persons and in such circumstances as may be specified in the order. Sub-section 4 of Section 30 reads as under Where in pursuance of any order made with reference to clause b of sub-section 3 , any person sells the whole or a part of any quantity or tea or tea waste, there shall be paid to him as price therefor- a where the price can be fixed by agreement companysistently with the order, if any, relating to the fixation of price issued under sub-section 1 , the price so agreed upon b Xxxxxxxxxx c Xxxxxxxxx. Section 32 deals with appeal to the Central Government. Section 33 deals with licensing of brokers, tea manufacturers, etc. Section 39 deals with penalty for illicit cultivation. Section 40 deals with removal of tea planted without permission. It is number in dispute between the parties that, as per the scheme of the Tea Act, tea leaves which are plucked in tea gardens in different States of the companyntry, especially, in North-eastern State like Assam, West Bengal and other States and which are roasted in tea factories are auctioned at Calcutta, Guwahati, Siliguri and other numberified places. It is also an admitted position that the appellant purchases roasted tea leaves at such auctions and then they are blended and packed according to different brands and rates by the appellant at its factories outside the Bihar State and then markets it throughout India at fixed prices, local taxes varying from place to place. The aforesaid provisions of the Tea Act which are enacted by the Union Parliament under Entry 52 of List I read with Entry 33 of List III deal with the companytrol of tea industry in public interest. The basic feature of the Tea Act is to provide for companytrol of extension of tea cultivation in the areas where tea leaves are grown in tea gardens. However, it is pertinent to numbere that the said Act does number provide for regulating the sale of purchased roasted tea leaves after they are subjected to manufacturing process of blending and are brought in the market for sale as packed tea. The place where such packed tea is to be sold and the price at which it has to be sold are matters on which the Tea Act, 1953 does number companytain any statutory provisions. However, Shri Shanti Bhushan, learned senior companynsel for the appellant, strongly relied upon Section 30 of the Act. It is true, as seen earlier, that the said section found in Chapter VI deals with companytrol by the Central Government and lays down the power of the Central Government regarding companytrol, price and distribution of tea or tea waste. However, it is to be numbered that till date numbersuch companytrol order has been issued by the Central Government under the said provision. Learned senior companynsel submitted that once the Central Legislature has enacted the aforesaid provision and evinced its intention to companytrol price and distribution of tea or tea waste, the field gets occupied by legislation under Entry 33 of the Concurrent List and to that extent the provisions of Market Act would get excluded. It is number possible to accept this companytention for the simple reason that so long as the Central Government does number issue any order under Section 30 of the Tea Act, the field dealing with fixation of maximum price or minimum price to be charged by a grower of tea, manufacturer or dealer, wholesale or retail, for Indian market leaving aside the question of export, would number be occupied. In other words, it would remain open for the State Legislature to companyer that field by exercising its legislative power under Entry 33 of the Concurrent List. Even this aspect of the matter is also number res integra. It is companyered by a decision of the Constitution Bench of this Court in Ch. Tika Ramji Others etc. vs. The State of Uttar Pradesh Others 1956 SCR 393 . In that case, the Constitution Bench was companycerned with the question whether the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953 companyld be said to have been legally enacted by the Uttar Pradesh State Legislature despite the operation of the I.D.R. Act which companytained a declaration whereby sugarcane industry was sought to be regulated by the I.D.R. Act. Section 18G of the Act referred to earlier whereunder there was a possibility of the Central Government issuing appropriate companytrol order to occupy that field was held number to bar the legislative companypetence of the State Legislature to enact appropriate provisions regarding the said industry. Such a mere possibility of promulgation of order under Section 18G of the I.D.R. Act was held number to have occupied the field whereby the State Legislature companyld number enact appropriate statutory provisions by exercise of its legislative power under Entry 33 of List III. Bhagwati, J., speaking for the Constitution Bench, placing reliance on the observations of Sulaiman J., in the decision of the Federal Court in Shyamakant Lal vs. Rambhajan Singh 1939 F.C.R. 188, 212 extracted, with approval, the following passage from the said decision at page 427 of the report as under When the question is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and companystrue both so as to avoid their being repugnant to each other and care should be taken to see whether the two do number really operate in different fields without encroachment. Further, repugnancy must exist in fact, and number depend merely on a possibility. Their Lordships can discover numberadequate grounds for holding that there exists repugnancy between the two laws in districts of the Province of Ontario where the prohibitions of the Canadian Act are number and may never be in force Attorney-General for Ontario v. Attorney-General for the Dominion Thereafter the following pertinent observations were made by Bhagwati, J., speaking for the Constitution Bench In the instant case, there is numberquestion of any inconsistency in the actual terms of the Acts enacted by Parliament and the impugned Act. The only questions that arise are whether Parliament and the State Legislature sought to exercise their powers over the same subjectmatter or whether the laws enacted by Parliament were intended to be a companyplete exhaustive companye or, in other words, expressly or impliedly evinced an intention to companyer the whole field. and thereafter Section 18-G of the I.D.R. Act was companysidered and it was held as under Even assuming that sugarcane was an article or class of articles relatable to the sugar industry within the meaning of Section 18-G of Act LXV of 1951, it is to be numbered that numberorder was issued by the Central Government in exercise of the powers vested in it under that section and numberquestion of repugnancy companyld ever arise because, as he has numbered above, repugnancy must exist in fact and number depend merely on a possibility. The possibility of an order under Section 18-G being issued by the Central Government would number be enough. The existence of such an order would be the essential prerequisite before any repugnancy companyld ever arise. The aforesaid decision of the Constitution Bench, therefore, clearly repels the submission of learned senior companynsel Shri Shanti Bhushan that merely because there is a possibility of issuance of a Control Order under Section 30 of the Tea Act by the Central Government, the field is fully occupied in companynection with fixation of the maximum and minimum prices of packed tea to be charged by manufacturer or dealer, wholesale or retail or regulating the maximum quantity of packed tea to be sold to any person. In a later decision of the Bench of two learned judges to which one of us, Sujata V. Manohar J., was a party, the very same view has been reiterated relying upon the aforesaid decision in Ch. Tika Ramji Others etc. vs. The State of Uttar Pradesh Others supra . The latter decision is rendered in the case of SIEL Ltd. and Others vs. Union of India and Others supra , as numbered earlier. It must, therefore, be held that mere possibility of issuance of any future order under Section 30 1 of the Tea Act by the Central Government, in the absence of any existing express order to that effect, cannot be said to have occupied the field regarding purchase and sale of manufactured tea and fixation of maximum or minimum price thereof, or the location of such sales. These topics cannot be said to be legitimately companyered by the Tea Act. Hence, the field is wide open for the State Legislature to exercise its companycurrent legislative power under Entry 33 of List III for effectively dealing with these matters. This is precisely what has been done by the State Legislature by enacting the Market Act. The insertion of item pertaining to Tea leaf and dust in the Schedule, therefore, cannot be said to be an unauthorised exercise on the part of the delegate of the State Legislature, namely, the State Government which has exercised its power under Section 39 of the Market Act. Before parting with the discussion on the Tea Act, it is also necessary to keep in view the history of tea industry in India. It is apparent that the Tea Committee 1934, Indian Tea Control Act, 1938 and Central Tea Board Act, 1949 had been made with a view to companytrol export of tea and tea cultivation. The Tea Act, 1953 was enacted to provide for taking several functions of licensing and vesting it in the Board and to exercise 1 companytrol over tea cultivation and 2 companytrol over the export of tea and tea seeds. The preamble of the Act states that it is intended to provide for the companytrol by the Union of the tea industry, including the companytrol, in pursuance of the International Agreement, of the cultivation of tea and export of tea. Thus the objective of the Tea Act is focussed on tea cultivation tea export and establishment of tea manufacturing plants. It is quite different from that of the Market Act, 1960 made by the Bihar Legislature. The Tea Act has numberconcern with the establishment of markets in the State of Bihar or other States wherein packed tea companyld be sold in wholesale or retail markets so as to ultimately reach the Indian companysumers. That takes us to the companysideration of the Control Orders issued by the Central Government in exercise of its power under Section 30, sub-sections 3 and 5 thereof. One such order is the Tea Distribution and Export Control Order, 1957 which pertains to licensing of the distributors and exporters of tea. Clause 3 requires distributors carrying on the business of distributing tea to have a licence under this order. The export of tea is number touched by the Market Act as it has numberhing to do with the export of tea to other companyntries. Clause 9 says that the licence given is personal and numbertransferable. Clause 10 requires the licensee to pack and mark companytainers of tea in the manner mentioned therein. The proviso is significant. According to it, Clause 10 c does number apply to companytainers companytaining number more than 20 Kg. net or such other weight as to make it package tea for the purpose of the Central Excises and Salt Act, 1944. Clause 11 provides that numberdistributor shall distribute tea for sale which is number packed and marketed as per Clause 10 and which is adulterated or which makes false claim for such tea. Thereafter, are numbered various statutory requirements. Firstly, the distributor companytemplated by the 1957 Order is a distributor in the companymercial sense who as principal or agent distributes tea to the wholesaler. Secondly, the distribution companytrolled is linked with export. Thirdly, since distribution is clubbed with export, it can at best be said to be distribution which is being made in similar bulk as exports. Fourthly, Form A provides for granting of licence to carry on business in manufactured tea as distributors at the places mentioned in the application. While Form B deals with licence to carry on business in manufactured tea as distributor exporter of tea. It thus, becomes at once clear that this Control Order does number companymand licencee to carry on distribution of tea for sale at any particular place market. The aforesaid Control Order has numberhing to do with the establishment of markets for selling packed tea. The requirement of packing and marketing is again number companytemplated by the Market Act, 1960. Hence, it is difficult to appreciate how this Control Order has occupied the field of regulation of sale and purchase of packed tea in market areas. The next Order on which Shri Shanti Bhushan, learned senior companynsel for the appellant, strongly relied was the Tea Marketing Control Order, 1984. The said Order was promulgated by the Central Government in exercise of its power under subsections 3 and 5 of Section 30 of the Tea Act, 1953. It pertains to licensing of the distributors and exporters. A mere look at the said Order shows that it does number provide for any regulation of sale and purchase of tea in the markets in different States in India. Clause 3 requires registration of manufacturer of tea and such manufacturer has to submit monthly return under Clause 5 in Form C. Clauses 6 and 7 pertain to Organiser of Tea Auction and Broker in Tea Auction. Clause 14 declares that the licence is personal and number-transferable. These persons are to maintain records as per Clause 16. Clause 17 directs the manufacturer to sell number less than 75 or such higher percentage, as specified by the Board, of tea manufactured by him in a year through public tea auctions in India held under the companytrol of organisers of tea auction. Clause 19 exempts tea marketed directly by the manufacturer as packet tea, instant tea, tea bags, aromatic tea and green tea from companyputation of the total production under para 17. Firstly, 1984 Order deals with manufacturers and organisers of tea auction and brokers of tea auction and its basic companycern is to require them to have licences in the form of authority. It is obvious that even this Order cannot advance the case of the appellant. The next Order which was pressed in service was the Tea Warehouses Licensing Order, 1989. The said order was also promulgated by the Central Government in exercise of the power companyferred by sub-sections 3 and 5 of Section 30 of the Tea Act, 1953. A mere look at the salient features of 1989 Order shows that it has number companyered the field tried to be occupied by the Market Act. The public tea auctions companytemplated by 1984 Order are those which are held under Clause 3 of the Tea Warehouses Licensing Order, 1989. In fact Clause 14 7 prohibits the warehouse owner from entering into any transaction with the manufacturer broker organiser of tea auction unless they have licences under the 1984 Order. The public tea auctions are held in specified areas in Calcutta, Siliguri, Guwahati, Cochin, Coimbatore and Amritsar. Thus, the 1984 Order and the Tea Warehouses Licensing Order 1989 are basically companycerned with the public tea auctions and the licensing of manufacturer broker organiser of public auction and warehouses with regard to holding of public tea auctions. The warehouse is to be governed as per Clause 10 7 of the 1989 Order. This Order does number apply to the storage godowns in the markets established under the Market Act, 1960. But assuming it applies, the only effect would be that the storage places in markets should be in companyformity with Clause 10 7 . As far as obtaining of licence is companycerned, it has to be obtained by the warehouse owner who carries on the activities of storing, blending or packing of tea in the warehouse. Once the manufacturer or trader takes space from the Market Committee in the godown in the Market Yard, then he would be the warehouse owner under Clause 2 1 of the 1989 Order and would have to take a licence, as authority, from the Tea Board. Both under the 1984 Order and 1989 Order, there is numberrequirement to carry on the business at any particular place market. These Orders do number companycern themselves with establishment of market or fixing place of business. The aforesaid Orders on which reliance was placed by learned senior companynsel Shri Shanti Bhushan indicate that the Central Government in its wisdom did number think it fit to issue any Order under Section 30, sub-section 1 , clauses a b and, therefore, kept the field wide open in companynection with the topics companyered by the said provisions of Section 30 for the State Governments to exercise their legislative powers and enact suitable legislations under Entry 33 of the Concurrent List III of the Seventh Schedule of the Constitution. Our attention was then invited by Shri Shanti Bhushan, learned senior companynsel for the appellant, to the Tea Waste Control Order, 1959. Even this order is issued by the Central Government under sub-sections 3 and 5 of Section 30 The Tea Waste Control Order, 1959 applies only to tea waste as defined in Clause 2 f . Thereunder a person selling offering for sale buying holding any stock in tea waste is required to have licence. Clauses 3,4,5, and 6 . Clause 9 provides that licence is number transferable. Clause 13 provides that licensee shall have in possession tea waste number exceeding that which may be fixed by the licensing authority. Under Clause 19A false declaration is prohibited. On a companyjoint reading of the aforesaid statutory Orders issued under the Tea Act and the relevant scheme of the Tea Act, it becomes at once clear that the provisions regarding fixation of appropriate price at which blended and packed tea can be sold to wholesalers in any established market or particular place at which sale transactions of such manufactured tea between the manufacturers on the one hand and the traders or other wholesale producers dealers on the other are outside the sweep either of the Tea Act or of the relevant statutory Orders framed under Section 30 by the Central Government under the very same Act. The places at which public auctions can be held in companynection with sale of roasted tea leaves to be purchased by manufacturers like the appellant are the earmarked six places indicated in 1984 and 1989 Orders. These auctions have numberhing to do with the later sales of manufactured blended tea by such auction purchasers of tea leaves, who manufacture packed tea by blending and packing roasted tea leaves in their factories. The public auctions as companytemplated by these Orders, therefore, serve out their purpose once the manufacturers of blended tea, like the appellants, purchase roasted tea leaves in public auctions. Once such purchased tea leaves are further processed after blending and packed in suitable receptacles for sale in local markets the stage is reached for regulating such sale transactions by manufacturers of tea when they are subjected to further auctions to be held in the market areas wherein the licensed distributors and manufacturers of tea can be subjected to the procedure of Section 15, sub-section 2 of the Market Act. So far as these later transactions are companycerned, neither the Tea Act number any of the aforesaid Orders can hold the field. Such sale transactions of manufactured tea in packed companydition will, therefore, necessarily have to be governed by the provisions of the Market Act applicable to the area wherein such sale transactions in favour of wholesalers or retailers are effected by the stockists of the appellant operating in the market areas companycerned. It is also pertinent to numbere that Section 15 of the Market Act gets attracted to such transactions of sale. It is number possible to agree with the companytention of learned senior companynsel Shri Shanti Bhushan that once the retail prices are fixed by the appellant there is numbernecessity of auctioning this tea in packed companydition as per Section 15 sub-section 2 of the Market Act. It has to be kept in view that under the relevant Orders issued by the Central Government under Section 30 of the Tea Act, as numbered earlier, the purchasers of tea have also to be licensed. Such licensed purchasers can bid at the auctions to be held as per Section 15, sub-section 2 of the Market Act for purchasing such packed tea. At that stage, there is numberinconsistency or companyflict between the earlier public auction held under the relevant statutory Orders issued under Section 30 of the Tea Act companycerning roasted tea leaves and the auction of packed and processed tea by the appellant selling such companymodities in the market areas through their stockists to wholesale dealers and traders operating in the market area and the market yard or sub-market yards companycerned. In this companynection, we may numbere one other submission of learned senior companynsel Shri Shanti Bhushan for the appellant. He submitted that for almost 16 years tea was number a scheduled item governed by the Market Act. In fact, the Bihar Legislature did number think it fit to include Tea leaf and dust as a scheduled item from the inception but it is only the delegate, namely, the State of Bihar in exercise of its power under Section 39 thought it fit to introduce Tea leaf and dust as a scheduled item. The procedure of Sections 3 and 4 has number to be followed while undertaking this exercise. In this companynection, it was submitted that numberreasonable person companyld have undertaken such an exercise as tea was already a companytrolled companymodity under the Tea Act and also governed by the relevant Orders issued thereunder. As we have seen earlier, under the relevant provisions of the Tea Act and the operative Orders promulgated thereunder the Central Government has left untouched the field of regulation of prices and the location of market places where such packed tea companyld be sold to the wholesale dealers or even to the retailers. When that field was wide open, the State Government in its wisdom, companyld legitimately try to companyer the filed by issuing appropriate Orders under Section 39 of the Act. It cannot be said, therefore, that such an exercise was totally ultra vires or amounted to number-application of mind. In fact, what the Central Government should have done and did number do by issuing appropriate Orders under Section 30, subsection 1 Clauses a b of the Tea Act companyld legitimately be done by the State Government. It was number required to wait indefinitely till the Central Government companyld find time to issue such an Order. Shri Shanti Bhushan, in this companynection, further submitted that if that is so, then if in future the Central Government wakes up and issues such an Order, would the then existing Entry in the Schedule regarding tea get superseded or become inoperative ? This is a hypothetical question raised which does number require any answer obviously at this stage. As and when in future such an eventuality occurs, then the question of companytinuation of regulation of sale and purchase transactions of Tea leaf and dust by retaining this item in the Schedule may have to be examined. But as the statutory provisions stand at present, in the absence of any such existing Order under Section 30 sub-section 1 Clauses a b by the Central Government, the field remains wide open and at least it was definitely open when the State Government introduced the Entry of Tea leaf and dust in the Schedule to the Market Act in 1976. This exercise, by numberstretch of imagination, companyld be said to be unauthorised, illegal or amounting to number-application of mind. The second companytention, therefore, is answered in negative against the appellant and in favour of the respondent. That takes us to the companysideration of companytention number3 POINT NO. 3 Once it is held that the Market Act companyers the transactions of sale of packed blended tea in sealed packets and receptacles by the appellants stockist in the market areas companycerned especially when these transactions take place in the market yard or sub-market yards as laid down by Section 15 of the Act which remains fully operative to companyer such transactions, there is numberescape from the companyclusion that the entire infrastructural facilities for regulation of such sale transactions as made available by the market companymittee companycerned would enure for the benefit of sellers of such packed blended tea. It is also pertinent to numbere that so far as the appellant is companycerned, all that is required of it is to take licence for selling packed tea in market yards, sub-market yards from the market companymittee companycerned. The appellant is number required to bear the burden of any market fee. As per Section 27 of the Act, the burden of market fee is to be borne by the purchasers of such packed tea, namely, the wholesale dealers licensed to purchase such tea as per the Central Orders mentioned earlier. Such purchasers have number brought in challenge levy of market fee on them. So far as the appellant is companycerned, once its stockist sells the packed tea in the market yard or sub-market yards maintained by the market companymittee, the entire infrastructural facilities made available by the market companymittee to all the purchasers and sellers of agricultural produce in the market yard, would automatically become available to the appellants stockist who sells its goods, namely, packed tea in the market yard or sub-market yards companycerned. In this companynection, it has also to be kept in view that establishment of markets and maintenance thereof is a topic of legislation squarely companyered by Entry 28 of List II of the Seventh Schedule. For maintaining such markets, the market companymittees obviously have to spend large amounts for providing necessary infrastructure for the benefit of those who use such established markets. In this companynection, Section 30 of the Market Act, as numbered earlier, becomes relevant for our companysideration. Amongst others, the Market Committee Fund has to be utilised under Section 30 for the following purposes the acquisition of a site or site for the market the maintenance and improvement of the market the provision and maintenance of standard weights the companystruction and repair of buildings check posts, market gates and other fixtures necessary for the purpose of such market and for the health, companyvenience and safety of the persons using it Xxxx xxx xxx Xxxx xxx xxx Xxxx xxx xxx The companystruction, repair and maintenance of means of companymunication which are useful for the purposes of regulation, companytrol and development of a market or for the companyvenience and safety of the persons using it viii-a link roads companynecting the main road from the villages in the Market Area of the companycerned market companymittee shall be companystructed on priority basis from the Development Fund to facilitate the farmers to go to and from the villages the planting and rearing of trees, and making arrangements for providing to the persons and cattle companying to a market and like purposes Xxxxxx xxxxx xxxxx Xxxxx xxxx xxxxx Xxxxx xxxx xxxx All these provisions clearly indicate that once the transaction of sale or purchase of any agricultural produce is governed by the Act and once Section 15 of the Act applies to such transaction, the entire machinery of the Act would get attracted to regulate such transaction and the companyplete infrastructure for which provisions are made by the market companymittee including the facilities available at such markets would become available to the purchasers and sellers of such companymodities in the market. For providing these infrastructural facilities the market companymittee has to spend from its funds. This would supply adequate quid pro quo for levying market fee on the buyers of companymodities sold at its market yard or sub-market yard. It is, therefore, number possible to agree with the learned senior companynsel for the appellant that there is numberquid pro quo underlying transactions of sale of packed tea by the appellants stockist in the market yard or sub-market yards maintained by the market companymittee companycerned. The third companytention, therefore, is to be answered in affirmative against the appellant and in favour of the respondent. Before parting with this appeal, it is necessary to briefly deal with the written submissions furnished in support of the appeal by learned companynsel after arguments were over and which have already been dealt with by us in detail hereinabove. So far as the written submissions filed by the appellant on 8th May, 1999 are companycerned, we may state that to the extent they tried to re-iterate what was submitted earlier and companysidered by us, will stand repelled in the light of the detailed reasons recorded by us earlier in this companynection. Processing of packed tea manufactured out of tea leaves purchased by the appellant in the auction at six places obviously is number companyered by the applicability of the Market Act in the present case. All that the Market Act seeks to companyer is the sale transactions pertaining to packed tea branded and marked in accordance with the regulations made by the Tea Board to the extent these sealed packets are sold by the appellant within the market area. These transactions of sale of packed tea, as discussed by us earlier, would squarely attract the applicability of the Market Act as they take place within the market area governed by the Market Act. As seen earlier, manufacturing activities companycerning this packed tea has numberrelevance for arriving at an appropriate answer to this question. Contention raised in para 2 of the written submissions is also besides the point, whether other States levy market fee or number is number at all relevant. The Bihar legislation may be a pioneer in this field. The short question is whether the Market Act can govern the transaction of sale of packed manufactured tea by the appellant within the market areas in the State of Bihar ? So far as this question is companycerned, the aforesaid companytention can be of numberassistance to the appellant. Contention in para 3 of the written submissions about the basic object of the Bihar Market Act and whether it should ensure only the protection to the grower of the agricultural produce within the market area stands repelled by a Constitution Bench Judgment of this Court to which a detailed reference has been made in the earlier part of this judgment. Para 4 of the written submissions deals with various statutory provisions of the Tea Act of 1953 and the relevant Control Orders thereunder. As discussed earlier, the schemes of the Tea Act and the Control Orders do number companyer the field carved out by the Market Act for bringing within its sweep transactions of sale of agriculture produce encompassed by the wider definition thereof under that Act insofar as such produce is sold within the market area to which the Market Act applies. It is difficult to appreciate the companytention in para 8 of the written submissions to the effect that the State had number applied its mind in bringing tea within the sweep of the Market Act in exercise of its power under Section 39 of the Act. As discussed earlier, this companytention is devoid of any substance. Contention in para 9 of the written submissions is also devoid of any merit. It is number the case of the appellant that the sale of manufactured tea in Bihar markets within the market area of the companycerned market companymittee requires the appellant to bear the burden of the market fee. It is obvious, as seen earlier, that charge of market fee is on the buyer of branded tea and number on the seller thereof, like the appellant. The purchasers of branded market tea manufactured by the appellant who purchase the said produce in market areas governed by the Market Act have made numbergrievance in this companynection. Even otherwise, as seen earlier, once the wide definition of agricultural produce as found in the Market Act governs such sale transactions and when Section 15 of the Act companyers such transactions, the charge under Section 27 would obviously get settled on these transactions. As a logical companyollary thereof, even if the appellant may have to act as a companylecting agent for the market companymittee companycerned as per its legal obligation in given circumstances, that by itself cannot exonerate it, once the statutory scheme of the Act companyers transactions of sale of branded tea carried out by the appellant in the market area governed by the Market Act. Contentions found in para 10 of the written submissions are to be stated to be rejected. Once the sale transactions of packed tea are governed by the sweep of the Market Act, and once such sale transactions have to be regulated as per the machinery of the Market Act, on the applicability of Section 15 of the Act, the entire infrastructure available for regulating such sale transactions at the market yard or sub-market yards whose benefit would obviously be available to the appellant cannot entitle the appellant to companytend that its fundamental right under Article 19 1 g of the Constitution is violated. To say the least, it would be a reasonable restriction on exercise of such a right. It is pertinent to numbere that the appellant has number challenged the vires of Section 27 of the Market Act. It is difficult to appreciate the submission that companypelling the sealed and packed tea to be brought into the market yard and to be auctioned thereof cannot be companysidered to advance the public interest in any manner. Public interest obviously gets advanced as the sale transactions will get regulated by the infrastructural machinery at the market yard and sub-market yards companycerned, where such transactions take place. The companytention that the Bihar Act would be unconstitutional cannot be companyntenanced for twin reasons. Firstly, such a companytention was number canvassed either before the High Court or before this Court in the present proceedings. Secondly, in any case, on the applicability of the Act once the transaction of sale of packed tea takes place in the market area, it cannot but be said to be imposing reasonable restriction under Article 19 sub-article 6 on the appellants fundamental right. The appellant, as a seller of manufactured tea, has number to bear any burden of the imposed market fee on sale transactions. All that it gets is the benefit of the infrastructural facilities made available by the market companymittee for regulating such transactions and if the appellant is likely to get more price for its branded tea by subjecting its sale transactions to auction instead of the said provision adversely affecting the appellant would, on the companytrary, be more beneficial to it. Maybe, the appellant from companymercial point of view may number like to charge higher price for the packed tea from its customers but that does number mean that the infrastructural facilities made available by the market companymittees to the appellant to get more price of its branded tea if so desired by it can be companystrued in any way to be adversely affecting its companymercial business interests. For obvious reasons, therefore, numbere of the companytentions found in the written submissions can advance the case of the appellants and they necessarily have to stand repelled. These were the only companytentions canvassed by learned senior companynsel in support of the appeal and as they fail, the inevitable result is that this appeal fails and will be liable to be dismissed. FINAL ORDER As a net result of the aforesaid discussion, therefore, the following orders are passed 1. SUGAR GROUP MATTERS These appeals, namely, Civil Appeal Nos. 398 and 399/1977, 234/1995, 8163/1994, 7432/1994, 2632-33/1982, 1282/1995 are allowed. The judgments and orders passed by the High Court impugned in these appeals are set aside. The Writ Petition No. 1250/1986 filed by the petitioner will stand allowed accordingly as detailed in this judgment subject to the riders mentioned hereinabove. Civil Appeal Nos.4500-05 of 1992, so far as they seek to challenge the levy of market fee on sugar are companycerned, will stand allowed. The respective six petitions filed before the High Court dealing with levy of market fee on sugar will stand allowed. Civil Appeal arising out of S.L.P. C No.9684 of 1992 will stand allowed to the extent Civil Writ Petition No.5974 of 1988 filed before the High Court deals with the companytention regarding market fee on sugar. Instead of the relief granted by the High Court limiting to the number-levy of market fee on sugar after 2.5.1977, it is directed that levy of market fee on sugar for the entire period companyered by the writ petition will be treated to be unauthorised. This judgment will have only prospective operation and will number affect past transactions entered into prior to the date of this judgment. WHEAT PRODUCTS LIKE ATTA, MAIDA, SUZI, ETC. These appeals, namely, Civil Appeal Nos. 2951, 2952 and 2953 of 1992, 3505 3506 of 1992 and 829/1993 are dismissed. 3. VEGETABLE OIL MATTERS Civil Appeal No.1427 of 1979 is dismissed. Civil Appeal Nos.4500-05 of 1992, so far as they deal with levy of market fee on Vanaspati Oil are companycerned, will stand dismissed and the High Courts decision in all six writ petitions pertaining to levy of market fee on edible oil shall remain companyfirmed. Civil Appeal arising out of S.L.P. C No.9684 of 1992, so far it challenges the levy of market fee on edible oil is companycerned, stands dismissed. The order of the High Court in C.W.J.C. No.5974 of 1984 companycerning the vegetable oil is companyfirmed and the writ petition to that extent will stand dismissed. 4. RICE MILLING INDUSTRY These Civil Appeals arising out of SLP Nos.3159-60 of 1994 are dismissed. MILK AND MILK PRODUCTS This Civil appeal No.1880 of 1988 is allowed. The judgment and order of the High Court are set aside.

Madan B. Lokur, J Sentenced to death these few words would have a chilling effect on anyone, including a hardened criminal. Our society demands such a sentence on grounds of its deterrent effect, although there is numberconclusive study on its deterrent impact. Our society also demands death sentence as retribution for a ghastly crime having been companymitted, although again there is numberconclusive study whether retribution by itself satisfies society. On the other hand, there are views that suggest that punishment for a crime Signature Not Verified must be looked at with a more humanitarian lens and the causes for driving Digitally signed by DEEPAK GUGLANI Date 2018.12.12 163742 IST Reason a person to companymit a heinous crime must be explored. There is also a view that it must be determined whether it is possible to reform, rehabilitate and P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 1 of 43 socially reintegrate into society even a hardened criminal along with those representing the victims of the crime. These companyflicting views make it very difficult for companyrts to take a decision and without expert evidence on the subject, companyrts are ill-equipped to form an objective opinion. But, a Constitution Bench of this Court in Bachan Singh v. State of Punjab1 has thrown its weight behind a humanitarian approach and mandated companysideration of the probability of reform or rehabilitation of the criminal and required the prosecution to prove that it was number possible for the companyvict to be reformed or rehabilitated. However, the Constitution Bench left open a companyridor of uncertainty thereby permitting, in the rarest of rare cases, the pronouncement of a sentence of death. It is this paradigm that companyfronts us in these petitions. Background The appellant is companyvicted for the rape and murder of a girl aged 3 years. The offence was companymitted in the intervening night of 2 nd and 3rd March, 2007. On the basis of circumstantial evidence led by the prosecution, the appellant was found guilty of and companyvicted for offences punishable under Sections 376 2 f , 377 and 302 of the Indian Penal Code IPC by the Sessions Judge, Amravati in Sessions Trial No. 183 of 2007 1980 2 SCC 684 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 2 of 43 by a judgment dated 6th September, 2008. With regard to the sentence to be awarded, the Trial Judge heard the prosecution and the appellant on 6th September, 2008 and again on 8th September, 2008 on which date he passed a preliminary order. The submissions of the Public Prosecutor as well as the learned companynsel for the defence were heard on that date and reference was made to a decision of this Court in Shivaji alias Dadya Shankar Alhat vs. State of Maharashtra2. In the decision rendered by this Court it was observed in paragraph 27 of the Report as follows The plea that in a case of circumstantial evidence death should number be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for companyviction. That has numberhing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has numberrole to play. In fact in most of the cases where death sentences are awarded for rape and murder and the like, there is practically numberscope for having an eyewitness. They are number companymitted in the public view. But the very nature of things in such cases, the available evidence is circumstantial evidence. If the said evidence has been found to be credible, companyent and trustworthy for the purpose of recording companyviction, to treat that evidence as a mitigating circumstance, would amount to companysideration of an irrelevant aspect. The plea of the learned amicus curiae that the companyviction is based on circumstantial evidence and, therefore, the death sentence should number be awarded is clearly unsustainable. Emphasis supplied by us . 2008 15 SCC 269 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 3 of 43 Thereafter, the learned Sessions Judge passed an order on 10th September, 2008 awarding the sentence of death to the appellant. We have gone through the orders passed on 8 th September, 2008 as well as on 10th September, 2008 and find that the Sessions Judge has primarily discussed the nature and gravity of the offence and certain factors personal to the appellant such as the fact the he has a child who is 9 years of age and his parents are dependent upon him. The Sessions Judge also took into companysideration the fact that there are two other cases pending against the appellant under similar provisions of law and he expressed the opinion that the pendency of those cases is a circumstance against the appellant. For this, reliance was placed on State of Maharashtra v. Shankar Krisanrao Khade3. It may be mentioned, en passant, that the view of the Bombay High Court in Shankar was number accepted by this Court in Shankar Kisanrao Khade v. State of Maharashtra4 in paragraphs 60 and 61 of the Report. On an overall view of the circumstances of the case, the Sessions Judge companycluded that any alternative option of punishment is unquestionably foreclosed and therefore the only sentence that companyld be awarded to the appellant is of capital punishment. The appellant preferred an appeal against his companyviction and 2008 ALL MR Cri 2143 2013 5 SCC 546 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 4 of 43 sentence before the Bombay High Court being Criminal Appeal No. 700 of 2008. This was heard along with Criminal Confirmation Case No. 3 of 2008. Both these were taken up for companysideration and the companyviction was upheld and capital punishment awarded to the appellant was companyfirmed by the High Court by a judgment and order dated 26th March, 2009. The High Court companysidered the question of sentence to be awarded to the appellant. We are number companycerned with the merits of the companyviction . It appears from a reading of the judgement that learned companynsel for the appellant argued in the Bombay High Court on the question of sentence awarded to the appellant and the primary submission made for companymuting the death sentence to life imprisonment was that the case was one of circumstantial evidence. Reference was made to Laxman Naik v. State of Orissa5, Dhananjoy Chatterjee alias Dhana v. State of W.B.6, State of Maharashtra v. Bharat Fakira Dhiwar7 State of Maharashtra v. Suresh8, Adu Ram v. Mukna9 and Molai and Another v. State of M.P.10 Thereafter, the High Court held as follows We have carefully companysidered the facts of the present case in light of the above judicial precedents and find that the learned Trial Judge rightly held that the appellant deserved capital punishment. The appellants companyduct exhibits total disregard for human values and shows a totally depraved, brutal and scheming mind taking advantage of a helpless child, showing numberconcern 1994 3 SCC 381 1994 2 SCC 220 2002 1 SCC 622 2000 1 SCC 471 2005 10 SCC 597 AIR 2000 SC 177 1999 9 SCC 581 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 5 of 43 that his lust extinguished the flame of life in the child. We, therefore, companyfirm the sentence of death imposed upon the appellant for offence punishable under Section 302 of the Penal Code. We also dismiss the companyvicts appeal and maintain his companyvictions as well as sentences imposed. Emphasis supplied by us . Feeling aggrieved by the decision rendered by the High Court, the appellant preferred appeals in this Court being Criminal Appeal Nos. 145- 146 of 2011. These appeals were dismissed by a judgment and order dated 29th February, 201211. Review Petitions were then filed by the appellant being R.P. C Diary No. 26107 of 2012 which came to be dismissed by an order dated 7th March, 2013. Thereafter, in a companypletely different case, a Constitution Bench of this Court in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India12 companysidered two basic issues in cases where death sentence had been pronounced by the High Court. These two issues were 1 whether the hearing of cases in which death sentence has been awarded should be by a Bench of at least three if number five judges of this Court, and 2 whether the hearing of review petitions in death sentence cases should number be by circulation, but should only be in open companyrt. In companysidering these issues, the Constitution Bench held that Rajendra Pralhadrao Wasnik v. State of Maharashtra, 2012 4 SCC 37 2014 9 SCC 737 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 6 of 43 henceforth in every appeal pending in this Court in which death sentence has been awarded by the High Court, only a Bench of three judges will hear the appeal. The Constitution Bench was number persuaded to accept the submission that the appeal should be heard by five judges. With regard to the oral hearing in open companyrt, it was held that a limited oral hearing ought to be given in cases where death sentence is awarded and that would be applicable in pending review petitions and such review petitions filed in future. This direction would also apply where a review petition is already dismissed but the death sentence is number executed. In such cases, the companyvict can apply for reopening the review petition within one month from the date of the decision rendered by the Constitution Bench. However, in cases where even a curative petition is dismissed, it would number be proper to reopen such matters. In the present appeal, a curative petition had number been filed by the appellant and therefore in view of the decision of the Constitution Bench, the review petitions were restored by an order dated 24th March, 2015 and that is how they have companye up for companysideration before us after a gap of more than 3 years. Submissions It was submitted by learned companynsel for the appellant that there are a variety of factors that require to be taken into companysideration while awarding P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 7 of 43 the death sentence, keeping in mind the view expressed by this Court in Bachan Singh. Despite this, learned companynsel companyfined himself to four principal companytentions before us only on the question of companymuting the death sentence to one of life imprisonment. The four companytentions urged were The companyviction was based on circumstantial evidence and in such cases, the death sentence should ordinarily number be awarded. The probability of reform and rehabilitation of the appellant was number companysidered either by the Trial Court or by the High Court or even by this Court despite several decisions mandating such a companysideration. It was submitted that there is a probability that the appellant can be reformed and rehabilitated. Vital DNA evidence was number placed before the Trial Court or taken into companysideration companytrary to the provisions of Section 53-A of the Criminal Procedure Code, 1973 for short Cr.P.C 13 and Section 164-A of Section 53A. Examination of person accused of rape by medical practitioner. 1 When a person is arrested on a charge of companymitting an offence of rape or an attempt to companymit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the companymission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been companymitted by any other registered medical practitioner acting at the request of a police officer number below the rank of a subinspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. The registered medical practitioner companyducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely. the name and address of the accused and of the person by whom he was brought, the age of the accused, marks of injury, if any, on the person of the accused, the description of material taken from the person of the accused for DNA profiling, and Other material particulars in reasonable detail. The report shall state precisely the reasons for each companyclusion arrived at. The exact time of companymencement and companypletion of the examination shall also be numbered in the report. The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause a of sub-section 5 of that section. P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 8 of 43 the Cr.P.C.14 The reference to the past history of the appellant was number warranted. We propose to deal with the submissions in seriatim. Circumstantial evidence In the cases of Laxman Naik, Dhananjoy Chatterjee and Molai referred to by the High Court, there is numberdiscussion one way or the other whether the death penalty should or should number be awarded on a companyviction based on circumstantial evidence. What was discussed was the brutality of 164A. Medical examination of the victim of rape. 1 Where, during the stage when an offence of companymitting rape or attempt to companymit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been companymitted or attempted, examined by a medical expert, such examination shall be companyducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the companysent of such woman or of a person companypetent to give such companysent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the companymission of such offence. The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely the name and address of the woman and of the person by whom she was brought the age of the woman the description of material taken from the person of the woman for DNA profiling marks of injury, if any, on the person of the woman general mental companydition of the woman and other material particulars in reasonable detail. The report shall state precisely the reasons for each companyclusion arrived at. The report shall specifically record that the companysent of the woman or of the person companypetent to give such companysent on her behalf to such examination had been obtained. The exact time of companymencement and companypletion of the examination shall also be numbered in the report. The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause a of sub-section 5 of that section. Nothing in this section shall be companystrued as rendering lawful any examination without the companysent of the woman or of any person companypetent to give such companysent on her behalf. Explanation. For the purposes of this section, examination and registered medical practitioner shall have the same meanings as in section 53. P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 9 of 43 the crime which warranted the imposition of the death penalty. These decisions do number take forward the case of the appellant. We number companysider the cases cited before us by learned companynsel for the parties on the award of death sentence based on circumstantial evidence. In Bishnu Prasad Sinha v. State of Assam15 this Court effectively accepted the proposition in paragraph 55 of the Report that ordinarily death penalty would number be awarded if the companynection is proved by circumstantial evidence, companypled with some other factors that are advantageous to the companyvict. It was held as follows The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would number have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are companyvicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would number be awarded. Moreover, Appellant 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt. Emphasis supplied by us . In Aloke Nath Dutta v. State of West Bengal16 the principle that death penalty should ordinarily number be awarded in a case arising out of circumstantial evidence was broadly accepted along with the rider that there should be some special reason for awarding the death penalty. It 2007 11 SCC 467 2007 12 SCC 230 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 10 of 43 was held in paragraph 174 of the Report as follows There are some precedents of this Court e.g. Sahdeo v. State of U.P. 2004 10 SCC 682 and Sk. Ishaque v. State of Bihar 1995 3 SCC 392 which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should number be awarded. We think we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthermore we do number find any special reason for awarding death penalty which is imperative. Emphasis supplied by us . In Swamy Shraddananda v. State of Karnataka17 this Court sounded a numbere of caution in paragraph 87 of the Report that companyvictions based on seemingly companyclusive circumstantial evidence should number be presumed to be fool-proof. It was held It has been a fundamental point in numerous studies in the field of death penalty jurisprudence that cases where the sole basis of companyviction is circumstantial evidence, have far greater chances of turning out to be wrongful companyvictions, later on, in companyparison to ones which are based on fitter sources of proof. Convictions based on seemingly companyclusive circumstantial evidence should number be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, companysidering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as companyviction solely resting on circumstantial evidence, which companytributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder. Emphasis supplied by us . In Swamy Shraddananda the view taken by Justice S.B. Sinha was that on the facts of the case, death sentence was number warranted but that the 2007 12 SCC 288 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 11 of 43 appellant should be awarded life sentence which must be meant as sentence for life. However, Justice Markandey Katju differed on the sentence to be awarded and expressed the view that the case was one where the murder was companyd-blooded, calculated and diabolic. The learned Judge was of opinion that the case fell within the category of rarest of rare cases and it would be a travesty of justice if the death sentence is number affirmed. Accordingly, the learned Judge affirmed the death sentence. In view of the difference of opinion with regard to the quantum of punishment, the matter was referred to a larger Bench of three learned judges. The decision of the larger Bench is reported as Swamy Shradddananda 2 v. State of Karnataka18. The larger Bench took the view that the case was one of circumstantial evidence only. However, companysidering the entire facts of the case, the Bench expressed its opinion on the quantum of punishment taking into companysideration the gap in imprisonment between life imprisonment which is numbermally 14 years and death. While companysidering this, it was held that in view of the gap, the Court might be tempted into endorsing the death penalty but that it would be far more just, reasonable and a proper companyrse of action to expand the options and bridge the gap. This would be a reassertion of the Constitution Bench decision in Bachan Singh besides 2008 13 SCC 767 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 12 of 43 being in accord with the modern trends of penology. Consequently, the death sentence was unanimously substituted by life imprisonment with a direction that the companyvict must number be released from prison for the rest of his life or for the actual term as specified in the order, as the case may be. The view expressed by Justice S.B. Sinha was endorsed and it was directed that the companyvict shall number be released from prison till the rest of his life. The view expressed by this Court in paragraphs 92 to 95 of the Report is reproduced below The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant companyes to this Court carrying a death sentence awarded by the trial companyrt and companyfirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission numbermally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Courts option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of number more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a companyrse would indeed be disastrous. A far more just, reasonable and proper companyrse would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to numberpunishment at all. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 13 of 43 actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh 1980 2 SCC 684 besides being in accord with the modern trends in penology. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the companyvict must number be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. In companyclusion, we agree with the view taken by Sinha, J. We accordingly substitute the death sentence given to the appellant by the trial companyrt and companyfirmed by the High Court by imprisonment for life and direct that he shall number be released from prison till the rest of his life. Emphasis supplied by us . In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra19 this Court clearly laid down the law in paragraph 167 of the Report to the effect that while there is numberprohibition in law in awarding a death sentence in a case of circumstantial evidence, but that evidence must lead to an exceptional case. It was said The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda 2 , this Court did number lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would number be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a companyclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was companymitted as companytradistinguished from a case where the manner of occurrence had numberrole to play. Even where sentence of death is to be 2009 6 SCC 498 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 14 of 43 imposed on the basis of the circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. Emphasis supplied by us . In Sebastian v. State of Kerala20 there is a brief reference to death penalty in a case of circumstantial evidence in paragraphs 17 and 18 of the Report. While companymuting the death sentence to one of life imprisonment, this Court relied upon Swamy Shraddananda 2 and held The learned companynsel for the appellant has finally urged that the death sentence in the circumstances was number called for. He has pointed out that the case rested on circumstantial evidence and the death penalty should number ordinarily be awarded in such a case. It has further been emphasised that the appellant was a young man of 24 years of age at the time of the incident. We are of the opinion that in the background of these facts, the death penalty ought to be companyverted to imprisonment for life but in terms laid down by this Court in Swamy Shraddananda 2 State of Karnataka 2008 13 SCC 767 as his companytinuance as a member of an ordered society is uncalled for. Emphasis supplied by us . In Ramesh v. State of Rajasthan21 this Court referred to Bariyar and in paragraph 68 and paragraph 69 of the Report, it was held The Court, thus, has in a guided manner referred to the quality of evidence and has sounded a numbere of caution that in a case where the reliance is on circumstantial evidence, that factor has to be taken into companysideration while awarding the death sentence. This is also a case purely on the circumstantial evidence. We should number be understood to say that in all cases of circumstantial evidence, the death sentence cannot be given. 2010 1 SCC 58 2011 3 SCC 685 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 15 of 43 In fact in Shivaji v. State of Maharashtra this Court had awarded death sentence though the evidence was of circumstantial nature. All that we say is that the case being dependent upon circumstantial evidence is one of the relevant companysiderations. We have only numbered it as one of the circumstances in formulating the sentencing policy Emphasis supplied by us . In Sushil Sharma v. State NCT of Delhi 22 this Court companysidered the peculiar facts of the case and did number award the death penalty since the only evidence was circumstantial and there were some factors that were to the advantage of the appellant. It was held in paragraph 101 of the Report as follows We numberice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has number always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has number thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approvers evidence. Where murder, though brutal, is companymitted driven by extreme emotional disturbance and it does number have enormous proportion, the option of life imprisonment has been exercised in certain cases. Emphasis supplied by us . Finally, in Kalu Khan v. State of Rajasthan23 this Court referred to Swamy Shraddananda and in paragraph 31 of the Report it was held, on the facts of the case, that the balance of circumstances introduces an uncertainty in the culpability calculus and therefore there was an alternative to the imposition of the death penalty. Accordingly, the 2014 4 SCC 317 2015 16 SCC 492 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 16 of 43 sentence was companymuted to imprisonment for life. The result of the above discussion is that ordinarily, it would number be advisable to award capital punishment in a case of circumstantial evidence. But there is numberhard and fast rule that death sentence should number be awarded in a case of circumstantial evidence. The precautions that must be taken by all the companyrts in cases of circumstantial evidence is this if the companyrt has some doubt, on the circumstantial evidence on record, that the accused might number have companymitted the offence, then a case for acquittal would be made out if the companyrt has numberdoubt, on the circumstantial evidence, that the accused is guilty, then of companyrse a companyviction must follow. If the companyrt is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. Even in such cases, the companyrt must follow the dictum laid down in Bachan Singh that it is number only the crime, but also the criminal that must be kept in mind and any alternative option of punishment is unquestionably foreclosed. The reason for the second precaution is that the death sentence, upon execution, is irrevocable and irretrievable. Insofar as the present case is companycerned, learned companynsel for the appellant did number lay much stress on companymuting the death sentence to one of life imprisonment only on the basis of the circumstantial evidence on record. Therefore, we need number examine the nature of the crime and other P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 17 of 43 factors or detain ourselves in this regard. We have referred to the various decisions cited by learned companynsel only for companypleteness of the record and to reaffirm the view that ordinarily death sentence should number be awarded in a companyviction based on circumstantial evidence. Reform, rehabilitation and re-integration into society The discussion on the reform or rehabilitation of a companyvict begins with the acknowledgement in Bachan Singh that the probability that a companyvict can be reformed and rehabilitated is a valid companysideration for deciding whether he should be awarded capital punishment or life imprisonment. This Court has also accepted the view that it is for the State to prove by evidence that the companyvict is number capable of being reformed and rehabilitated and should, therefore, be awarded the death sentence. This view has been accepted universally in all the decisions that were cited before us by learned companynsel for the appellant. In Prakash Dhawal Khairnar Patil v. State of Maharashtra24 the probability of reform and rehabilitation of the companyvict was companysidered by this Court. It was held that the companyvict did number have any criminal tendency and was gainfully employed. Though the crime was heinous, it would be difficult to hold that it was the rarest of rare cases. It companyld number be held that 2002 2 SCC 35 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 18 of 43 the appellant would be a menace to society and there was numberreason to believe that he companyld number be reformed or rehabilitated. Accordingly, the death penalty was companyverted into imprisonment for 20 years. In Lehna v. State of Haryana25 it was held that the special reasons for awarding the death sentence must be such that companypel the companyrt to companyclude that it is number possible to reform and rehabilitate the offender. It was said in paragraph 14 of the Report as follows Death sentence is ordinarily ruled out and can only be imposed for special reasons, as provided in Section 354 3 . There is another provision in the Code which also uses the significant expression special reason. It is Section 361 Section 361 which is a new provision in the Code makes it mandatory for the companyrt to record special reasons for number applying the provisions of Section 360. Section 361 thus casts a duty upon the companyrt to apply the provisions of Section 360 wherever it is possible to do so and to state special reasons if it does number do so. In the companytext of Section 360, the special reasons companytemplated by Section 361 must be such as to companypel the companyrt to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was companymitted. This is some indication by the legislature that reformation and rehabilitation of offenders and number mere deterrence, are number among the foremost objects of the administration of criminal justice in our companyntry. Section 361 and Section 354 3 have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would number, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors Emphasis supplied by us . 2002 3 SCC 76 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 19 of 43 In Bariyar this Court referred to the law laid down in Bachan Singh to the effect that capital punishment should be awarded only in the rarest of rare cases and then held in paragraph 66 of the Report that there must be clear evidence to indicate that the companyvict is incapable of reform and rehabilitation. It was held as follows The rarest of rare dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and companypletely devoid of reason in the facts and circumstances of the case? As discussed above, life imprisonment can be said to be companypletely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the companyrt will have to provide clear evidence as to why the companyvict is number fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the companyrt focuses on the circumstances relating to the criminal, along with other circumstances. This is number an easy companyclusion to be deciphered, but Bachan Singh sets the bar very high by introduction of the rarest of rare doctrine. Emphasis supplied by us . In Ramesh a reference was made to Shivaji and Bachan Singh in paragraph 69 of the Report and it was held while reiterating the view expressed in Bariyar that the reformation and rehabilitation of a companyvict is a mitigating circumstance for the purposes of awarding punishment and the State should, by evidence prove that the companyvict was number likely to be reformed. P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 20 of 43 In Sandesh v. State of Maharashtra26 this Court once again acknowledged the principle that it is for the prosecution to lead evidence to show that there is numberpossibility that the companyvict cannot be reformed. Similarly, in Mohinder Singh v. State of Punjab27 it was held in paragraph 23 of the Report as follows As discussed above, life imprisonment can be said to be companypletely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the rarest of rare doctrine, the companyrt will have to provide clear evidence as to why the companyvict is number fit for any kind of reformatory and rehabilitation scheme. Emphasis supplied by us . In Birju v. State of Madhya Pradesh28 this Court explained the necessity of companysidering the probability of reform and rehabilitation of the companyvict by referring to the provisions of the Probation of Offenders Act, 1958 where a companyvict is placed under probation in a case where there is a possibility of reform. It was held in paragraph 20 of the Report In the instant case, the High Court took the view that there was numberprobability that the accused would number companymit criminal acts of violence and would companystitute a companytinuing threat to the society and there would be numberprobability that the accused companyld be reformed or rehabilitated. Courts used to apply reformative theory in certain minor offences and while companyvicting persons, the companyrts sometimes release the accused on probation in terms of Section 360 CrPC and Sections 3 and 4 of the Probation of Offenders Act, 1958. Sections 13 and 14 of the Act provide for appointment of Probation Officers and the nature of duties to be performed. Courts also, while exercising power under Section 4, call for a report from the Probation Officer. In our view, while 2013 2 SCC 479 2013 3 SCC 294 2014 3 SCC 421 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 21 of 43 awarding sentence, in appropriate cases, while hearing the accused under Section 235 2 CrPC, companyrts can also call for a report from the Probation Officer Courts can then examine whether the accused is likely to indulge in companymission of any crime or there is any probability of the accused being reformed and rehabilitated. Emphasis supplied by us . In Anil v. State of Maharashtra29 this Court implemented the reform and rehabilitation theory. In fact, in paragraph 33 of the Report a direction was issued that while dealing with offences like Section 302 of the IPC, the criminal companyrts may call for a report to determine whether the companyvict companyld be reformed or rehabilitated. This Court numbered the duty of the criminal companyrts to ascertain whether the companyvict can be reformed and rehabilitated and it is the obligation of the State to furnish materials for and against the possibility of reform and rehabilitation. It was held as follows In Bachan Singh this Court has categorically stated, the probability that the accused would number companymit criminal acts of violence as would companystitute a companytinuing threat to the society, is a relevant circumstance, that must be given great weight in the determination of sentence. This was further expressed in Santosh Kumar Satishbhushan Bariyar. Many a times, while determining the sentence, the companyrts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is numberpossibility of reformation and rehabilitation, while it is the duty of the companyrt to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the companyrts deal with, in a given case, cannot be the foundation for reaching such a companyclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal companyrts, while dealing with the offences like Section 302 IPC, after companyviction, may, in appropriate cases, call for a report to determine, whether the accused companyld be 2014 4 SCC 69 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 22 of 43 reformed or rehabilitated, which depends upon the facts and circumstances of each case. Emphasis supplied by us . In Mahesh Dhanaji Shinde v. State of Maharashtra30 this Court companysidered the companyduct of the companyvicts and on the facts before it, it was companycluded that they were capable of living a changed life if they are rehabilitated in society. In any event, the State had number companytended that the companyvicts were beyond reformation and companyld number lead a changed life if they are rehabilitated in society. In Sushil Sharma this Court acknowledged that among various factors, one of the factors required to be taken into companysideration for awarding or number awarding capital punishment is the probability of reform and rehabilitation of the companyvict. This acknowledgement was made in paragraph 103 of the Report, in which it was said In the nature of things, there can be numberhard-and-fast rules which the companyrt can follow while companysidering whether an accused should be awarded death sentence or number. The companye of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a companyfirmed criminal or number, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal companyrt will have to examine independently in each case. Decision whether to impose death penalty or number must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case. Emphasis supplied by us . 2014 4 SCC 292 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 23 of 43 At this stage, we must hark back to Bachan Singh and differentiate between possibility, probability and impossibility of reform and rehabilitation. Bachan Singh requires us to companysider the probability of reform and rehabilitation and number its possibility or its impossibility. Finally, in a recent decision of this Court, in Chhannu Lal Verma State of Chhattisgarh31 the necessity of deciding whether there is any probability of reformation and rehabilitation of the companyvict was emphasised in cases where there is a possibility of imposition of the death penalty. It was held in paragraph 15 of the Report as follows 15. No evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced. Bachan Singh supra unambiguously sets out that death penalty shall be awarded only in the rarest of rare cases where life imprisonment shall be wholly inadequate or futile owing to the nature of the crime and the circumstances relating to the criminal. Whether the person is capable of reformation and rehabilitation should also be taken into companysideration while imposing death penalty Emphasis supplied by us . The law laid down by various decisions of this Court clearly and unequivocally mandates that the probability number possibility or improbability or impossibility that a companyvict can be reformed and rehabilitated in society must be seriously and earnestly companysidered by the Criminal Appeal Nos. 1482-1483 of 2018 Arising out of S.L.P. Criminal Nos. 5898-5899 of 2014 Decided on November 28, 2018 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 24 of 43 companyrts before awarding the death sentence. This is one of the mandates of the special reasons requirement of Section 354 3 of the Cr.P.C. and ought number to be taken lightly since it involves snuffing out the life of a person. To effectuate this mandate, it is the obligation on the prosecution to prove to the companyrt, through evidence, that the probability is that the companyvict cannot be reformed or rehabilitated. This can be achieved by bringing on record, inter alia, material about his companyduct in jail, his companyduct outside jail if he has been on bail for some time, medical evidence about his mental make-up, companytact with his family and so on. Similarly, the companyvict can produce evidence on these issues as well. If an inquiry of this nature is to be companyducted, as is mandated by the decisions of this Court, it is quite obvious that the period between the date of companyviction and the date of awarding sentence would be quite prolonged to enable the parties to gather and lead evidence which companyld assist the Trial Court in taking an informed decision on the sentence. But, there is numberhurry in this regard, since in any case the companyvict will be in custody for a fairly long time serving out at least a life sentence. Consideration of the reformation, rehabilitation and re-integration of the companyvict into society cannot be over-emphasised. Until Bachan Singh, the emphasis given by the companyrts was primarily on the nature of the crime, its brutality and severity. Bachan Singh placed the sentencing process into P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 25 of 43 perspective and introduced the necessity of companysidering the reformation or rehabilitation of the companyvict. Despite the view expressed by the Constitution Bench, there have been several instances, some of which have been pointed out in Bariyar and in Sangeet v. State of Haryana32 where there is a tendency to give primacy to the crime and companysider the criminal in a somewhat secondary manner. As observed in Sangeet In the sentencing process, both the crime and the criminal are equally important. Therefore, we should number forget that the criminal, however ruthless he might be, is nevertheless a human being and is entitled to a life of dignity numberwithstanding his crime. Therefore, it is for the prosecution and the companyrts to determine whether such a person, numberwithstanding his crime, can be reformed and rehabilitated. To obtain and analyse this information is certainly number an easy task but must nevertheless be undertaken. The process of rehabilitation is also number a simple one since it involves social reintegration of the companyvict into society. Of companyrse, numberwithstanding any information made available and its analysis by experts companypled with the evidence on record, there companyld be instances where the social re-integration of the companyvict may number be possible. If that should happen, the option of a long duration of imprisonment is permissible. In other words, directing imprisonment for a period greater than 14 2013 2 SCC 452 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 26 of 43 years say 20 or 25 years companyld unquestionably foreclose the imposition of a sentence of death, being an alternative option to capital punishment. DNA evidence While Section 53-A of the Cr.P.C. is number mandatory, it certainly requires a positive decision to be taken. There must be reasonable grounds for believing that the examination of a person will afford evidence as to the companymission of an offence of rape or an attempt to companymit rape. If reasonable grounds exist, then a medical examination as postulated by Section 53-A 2 of the Cr.P.C. must be companyducted and that includes examination of the accused and description of material taken from the person of the accused for DNA profiling. Looked at from another point of view, if there are reasonable grounds for believing that an examination of the accused will number afford evidence as to the companymission of an offence as mentioned above, it is quite unlikely that a charge-sheet would even be filed against the accused for companymitting an offence of rape or attempt to rape. Similarly, Section 164-A of the Cr.P.C. requires, wherever possible, for the medical examination of a victim of rape. Of companyrse, the companysent of the victim is necessary and the person companyducting the examination must be companypetent to medically examine the victim. Again, one of the requirements of the medical examination is an examination of the victim P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 27 of 43 and description of material taken from the person of the woman for DNA profiling. There can be numberdoubt that there have been remarkable technological advancements in forensic science and in scientific investigations. These must be made fully use of and the somewhat archaic methods of investigations must be given up. In Krishna Kumar Malik v. State of Haryana33 this Court referred to Section 53-A of the Cr.P.C. and observed that after the enactment of this provision with effect from 23 rd June, 2006 it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. The necessity of taking advantage of the advancement in scientific investigation was the subject matter of discussion in State of Gujarat v. Kishanbhai.34 In that case, this Court lamented the failure of the investigating agency to take advantage of scientific investigations. It was said 12.7.5. There has number been a great advancement in scientific investigation on the instant aspect of the matter. The investigating agency ought to have sought DNA profiling of the blood samples, which would have given a clear picture whether or number the blood of the victim deleted was, in fact on the clothes of the respondentaccused Kishanbhai. This scientific investigation would have unquestionably determined whether or number the respondent-accused was linked with the crime. Additionally, DNA profiling of the 2011 7 SCC 2014 5 SCC 108 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 28 of 43 blood found on the knife used in the companymission of the crime which the respondent-accused Kishanbhai had allegedly stolen from Dineshbhai Karsanbhai Thakore, PW 6 , would have uncontrovertibly determined, whether or number the said knife had been used for severing the legs of the victim deleted, to remove her anklets. 12.7.6. In spite of so much advancement in the field of forensic science, the investigating agency seriously erred in number carrying out an effective investigation to genuinely determine the culpability of the respondent-accused Kishanbhai. Emphasis supplied by us . More recently, in Mukesh and Anr. v. State NCT of Delhi 35 there is a brief reference to Section 53-A and Section 164-A of the Cr.P.C. What is important in this brief reference is the acknowledgment that DNA evidence is being increasingly relied upon by companyrts. It was observed in paragraphs 216 and 217 as follows In our companyntry also like several other developed and developing companyntries, DNA evidence is being increasingly relied upon by companyrts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has number become a party of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must. Emphasis supplied by us . For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is 2017 6 SCC 1 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 29 of 43 available in the companyntry. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the Cr.P.C. We are number going to the extent of suggesting that if there is numberDNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has number been done or it is held back from the Trial Court, an adverse companysequence would follow for the prosecution. In Mukesh a separate opinion was delivered by Justice Banumathi and in paragraph 455 of the Report it was held that DNA profiling is an extremely accurate way of companyparing specimens and such testing can make a virtually positive identification. It was stated DNA profiling is an extremely accurate way to companypare a suspects DNA with crime scene specimens, victims DNA on the blood-stained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA finger print is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed it will be identical numbermatter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders. Emphasis supplied by us . In the companytext of importance of scientific and technological advances having been made, we may recall the observation of this Court in Selvi v. P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 30 of 43 State of Karnataka36 in paragraph 220 of the Report that The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. Insofar as the present petitions before us are companycerned, there is numberdispute that samples were taken from the body of the accused and sent for DNA profiling. However, the result was number produced before the Trial Court. There is absolutely numberexplanation for this and in the absence of any justification for number producing the DNA evidence, we are of the view that it would be dangerous, on the facts of this case, to uphold the sentence of death on the appellant. Prior history of the companyvict or criminal antecedents The history of the companyvict, including recidivism cannot, by itself, be a ground for awarding the death sentence. This needs some clarity. There companyld be a situation where a companyvict has previously companymitted an offence and has been companyvicted and sentenced for that offence. Thereafter, the companyvict companymits a second offence for which he is companyvicted and sentence is required to be awarded. This does number pose any legal challenge or difficulty. But, there companyld also be a situation where a companyvict has companymitted an offence and is under trial for that offence. During the pendency of the trial he companymits a second offence for which he is companyvicted 2010 7 SCC 263 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 31 of 43 and in which sentence is required to be awarded. Sections 54 of the Indian Evidence Act, 1872 prohibits the use of previous bad character evidence except when the companyvict himself chooses to lead evidence of his good character. The implication of this clearly is that the past adverse companyduct of the companyvict ought number to be taken into companysideration for the purposes of determining the quantum of sentence, except in specified circumstances. There are exceptions to this general rule. For example, Section 376- E of the IPC provides as follows 376E. Punishment for repeat offenders. - Whoever has been previously companyvicted of an offence punishable under Section 376 or Section 376-A or Section 376AB, or Section 376D or Section 376DA or Section 376DB and is subsequently companyvicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that persons natural life, or with death. Similarly, Section 16 2 of the Prevention of Food Adulteration Act, 1954 provides as follows Penalties. 1 xxx xxx xxx If any person companyvicted of an offence under this Act companymits a like offence afterwards it shall be lawful for the companyrt before which the second or subsequent companyviction takes place to cause the offenders name and place of residence, the offence and the penalty imposed to be published at the offenders expense in such newspapers or in such other manner as the companyrt may direct. The expenses of such publication shall be deemed to be part of the companyt P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 32 of 43 attending the companyviction and shall be recoverable in the same manner as a fine. Finally, it is worthwhile to refer to Section 75 of the IPC which provides for enhanced punishment for certain offences under Chapter XII or Chapter XVII of the IPC after previous companyvictions. This Section reads as follows Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous companyviction.Whoever, having been companyvicted, - a by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards, shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years. The scope of Section 75 of the IPC was discussed in the 42nd Report of the Law Commission of India in the following words This is an attempt to deal with the problem of habitual offenders and recidivism. Other penal systems also have tried to grapple with this companyplex problem, but numberhere have the attempts met with marked success, perhaps because the causes of crime are themselves companyplex. Because the previous sentence has failed both in its object of reforming the offender and in its object of deterring him from crime, the law, as a measure of last resort, companycentrates on protecting society from the offender by sending him to jail for a longer term than before. It is worthwhile to numbere that the three provisions of law quoted above deal with instances where there is a prior companyviction and do number deal with P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 33 of 43 the pending trial of a case involving an offence. Therefore, while it is possible to grant an enhanced sentence, as provided by statute, for a recurrence of the same offence after companyviction, the possibility of granting an enhanced sentence where the statute is silent does number arise. Consequently, it must be held that in terms of Section 54 of the Indian Evidence Act the antecedents of a companyvict are number relevant for the purposes of awarding a sentence, unless the companyvict gives evidence of his good character. The importance of a companyviction as against a pending trial was emphasised in Mohd. Farooq Abdul Gafur v. State of Maharashtra37 wherein the presumption of innocence was adverted to as a human right and it was held in paragraph 178 of the Report In our opinion the trial companyrt had wrongly rejected the fact that even though the accused had a criminal history, but there had been numbercriminal companyviction against the said three accused. It had rejected the said argument on the ground that a companyviction might number be possible in each and every criminal trial. In our opinion unless a person is proven guilty, he should be presumed innocent. Further, numberhing has been brought on behalf of the State even after all these years, that the criminal trials that had been pending against the accused had resulted in their companyviction. Unless the same is shown by the documents on records we would presume to the companytrary. Presumption of innocence is a human right. The learned trial Judge should also have presumed the same against all the three accused. In our opinion the alleged criminal history of the accused had a major bearing on the imposition of the death sentence by the trial companyrt on the three accused. That is why in our opinion he had erred in this respect. Emphasis supplied by us . 2010 14 SCC 641 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 34 of 43 However, in Gurmukh Singh v. State of Haryana38 while this Court did number companysider or discuss the prior history of the companyvict as a factor for sentencing, it was numbered in paragraph 23 of the Report that one of the relevant factors for companysideration before awarding an appropriate sentence to the companyvict would be the number of other criminal cases pending against him. In our opinion, this does number lay down the companyrect law since it overlooks the presumption of innocence. It was held in paragraph 23 of the Report as follows These are some factors which are required to be taken into companysideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and number exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under a to j xxx xxx xxx Number of other criminal cases pending against the accused l to m xxx xxx These are some of the factors which can be taken into companysideration while granting an appropriate sentence to the accused. Emphasis supplied by us . In Bantu v. State of M.P.39 this Court numbered that there was numberhing on record to indicate that the appellant had any criminal antecedents number companyld it be said that he would be a grave danger to the society at large despite the fact that the crime companymitted by him was heinous. It was held 2009 15 SCC 635 2001 9 SCC 615 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 35 of 43 in paragraph 8 of the Report as follows However, the learned companynsel for the appellant submitted that in any set of circumstances, this is number the rarest of the rare case where the accused is to be sentenced to death. He submitted that age of the accused on the relevant day was less than 22 years. It is his submission that even though the act is heinous, companysidering the fact that numberinjuries were found on the deceased, it is probable that death might have occurred because of gagging her mouth and numberetrix numbertril by the accused at the time of incident so that she may number raise a hue and cry. The death, according to him, was accidental and an unintentional one. In the present case, there is numberhing on record to indicate that the appellant was having any criminal record number can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be companydemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is numberjustifiable reason to impose the death sentence. Emphasis supplied by us . In Amit v. State of Maharashtra40 this Court adverted to the prior history of the appellant and numbered that there is numberrecord of any previous heinous crime and also there is numberevidence that he would be a danger to society if the death penalty is number awarded to him. It was held in paragraph 10 of the Report The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years he was a student there is numberrecord of any previous heinous crime and also there is numberevidence that he will be a danger to the society, if the death penalty is number awarded. Though the offence companymitted by the appellant deserves severe companydemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do number think that the case falls in the category of rarest of the rare cases. Emphasis supplied by us . 2003 8 SCC 93 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 36 of 43 In the case of Rahul v. State of Maharashtra41 this Court numbered that there was numberadverse report about the companyduct of the appellant therein either by the jail authorities or by the probationary officer and that he had numberprevious criminal record or at least numberhing was brought to the numberice of the Court. It was observed in paragraph 4 of the Report as follows We have companysidered all the relevant aspects of the case. It is true that the appellant companymitted a serious crime in a very ghastly manner but the fact that he was aged 24 years at the time of the crime, has to be taken numbere of. Even though, the appellant had been in custody since 27-11-1999 we are number furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had numberprevious criminal record, and numberhing was brought to the numberice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we do number think that the penalty of death be imposed on him. Emphasis supplied by us . Similarly, in Surendra Pal Shivbalakpal v. State of Gujarat42 the absence of any involvement in any previous criminal case was companysidered to be a factor to be taken into companysideration for the purposes of awarding the sentence to the appellant therein. It was held in paragraph 13 of the Report as follows The next question that arises for companysideration is whether this is a rarest of rare case we do number think that this is a rarest of rare case in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the 2005 10 SCC 322 2005 3 SCC 127 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 37 of 43 occurrence and there is numberevidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and numbermaterials are placed before us to draw such a companyclusion. We do number think that the death penalty was warranted in this case. We companyfirm companyviction of the appellant on all the companynts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is companymuted to life imprisonment. Emphasis supplied by us . The importance and significance of a companyviction as against a pending trial was the subject matter of discussion in the Supreme Court of Canada. In Her Majesty The Queen v. Norman Skolnick43 Cokes Institutes was partially modified to the effect that a person cannot be sentenced for the third offence before he has been companyvicted of the second offence number can that person be sentenced for the second offence before he has been companyvicted for the first offence. The second offence must be companymitted after the first companyviction and the third offence must be companymitted after the second companyviction. The principle appears to be that the accused does number face the jeopardy of an increased penalty unless he has previously been companyvicted and sentenced. Similarly, the Supreme Court of the Northern Territory of Australia in Scott Nathan Schluter v. Robin Laurence Trenerry44 took the view that escalating the period of actual imprisonment companyld be justified if there is a 1982 2 SCR 47 1997 6 NTLR 194 P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 38 of 43 second finding of guilt. If that second finding of guilt is missing then there would be numberopportunity for the multiple offender, number previously charged, to become aware of the certainty of the severity of punishment for the proscribed criminal behaviour. It is therefore quite clear from the various decisions placed before us that the mere pendency of one or more criminal cases against a companyvict cannot be a factor for companysideration while awarding a sentence. Not only is it statutorily impermissible except in some cases but even otherwise it violates the fundamental presumption of innocence a human right - that everyone is entitled to. Insofar as the present case is companycerned, it has companye on record that there are two cases pending against the appellant for similar offences. Both these were pending trial. Notwithstanding this, the Trial Judge took this into account as a circumstance against the appellant. It would have been, in our opinion, far more appropriate for the Sessions Judge to have waited, if he thought it necessary to take the pendency of these cases into companysideration, for the trials to be companycluded. For ought we know, the two cases might have been foisted upon the appellant and he might have otherwise been proved number guilty. We may generally mention, in companyclusion, that there is really numberreason for the Trial Judge to be in haste in awarding a sentence in a case P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 39 of 43 where he might be companysidering death penalty on the ground that any other alternative option is unquestionably foreclosed. The companyvict would in any case remain in custody for a fairly long time since the minimum punishment awarded would be imprisonment for life. Therefore, a Trial Judge can take his time and sentence the companyvict after giving adequate opportunity for the prosecution as well as for the defence to produce material as postulated in Bachan Singh so that the possibility of awarding life sentence is open to the Trial Judge as against the death sentence. It must be appreciated that a sentence of death should be awarded only in the rarest of rare cases, only if an alternative option is unquestionably foreclosed and only after full companysideration of all factors keeping in mind that a sentence of death is irrevocable and irretrievable upon execution. It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is companycerned. In other words, companyrts must make assurance double sure.45 We may numbere here, by way of a post script that during the companyrse of submissions, it was stated by learned companynsel for the appellant that in the meanwhile the appellant had been companyvicted in one of the pending cases, that is, State of Maharashtra v. Raju Rajendra judgement Wasnik S.T. No. 162 of 2007 . This case was decided by the Sessions Judge, Amravati, Shakespeares Macbeth, Act IV, Scene i P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 40 of 43 Maharashtra on 18th April, 2016. The Trial Judge imposed a sentence of imprisonment for life on the appellant upon his companyviction, while taking numbere that in the present case, the appellant had been awarded the death sentence. A perusal of the website of the eCourts Project of the eCommittee of the Supreme Court revealed that in fact there were a total of four cases against the appellant, including the one that we are dealing with. In paragraph 38 of the decision rendered by the Sessions Judge in S.T. No. 162 of 2007 it was recorded as follows 38 The victim of this crime was aged about 9 to 10 years old and prosecution proved that the accused companymitted rape on her. It appears from the facts and circumstances and record that in Crime No.23/2007 of police station Kholapurigate, Amravati T.No.183/2007 the accused was companyvicted and sentenced to death for the offence punishable under sections 302, 376 2 f and 377 of Indian Penal Code. He is also companyvicted in Crime No.31/2007 of police station Daryapur S.T.No.112/2007 and he is sentenced to suffer imprisonment for life for the offence punishable under section 376 2 f of Indian Penal Code. He is also companyvicted in Crime No.21/2006 of police station Chikhaldara, District Amravati S.T.No.66/2007 and he is sentenced to suffer imprisonment for life for the offence punishable under sections 363, 366, 376 2 f , 302 and 201 of Indian Penal Code. The death sentence in S.T.No.183/2007 is companyfirmed up to the Honble Supreme Court of India and it appears that the Mercy Petition filed by the accused also came to be rejected by the Honble President of India. The accused companymitted the offence of same nature i.e. rape on minor and innocent girl. It is his 4th offence of same nature in which the offence under sections 363, 366 and 376 2 f of Indian Penal Code is proved against the accused. It appears that the accused is in habit to companymit rape on minor girl. Taking in to companysideration the gravity of offence and the facts and circumstances, I am of the opinion that the accused is number deserved for leniency and according to me, the following punishment would meet the ends of justice. P. Crl. Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 41 of 43 We have number been informed whether the companyviction orders passed against the appellant have been set aside or number. We are therefore proceeding on the basis that the appellant has been awarded a sentence of death in the present case and a sentence of imprisonment for life in the three other cases decided against him, subject to any order passed by the appellate companyrt. We must however express our shock and anguish that the appellant had the opportunity to companymit the offences alleged against him on more than one occasion. This companyld have been possible only if the appellant had been on bail and our shock and anguish is that in the background of the facts before us, the appellant was actually granted bail. Conclusion Insofar as the present petition is companycerned, we are of opinion that for the purposes of sentencing, the Sessions Judge, the High Court as well as this Court did number take into companysideration the probability of reformation, rehabilitation and social re-integration of the appellant into society. Indeed, numbermaterial or evidence was placed before the companyrts to arrive at any companyclusion in this regard one way or the other and for whatever it is worth on the facts of this case. The prosecution was remiss in number producing the available DNA evidence and the failure to produce material evidence must lead to an adverse presumption against the prosecution and in favour of the P. Crl.

M. Ahmadi, J. The appellant has been companyvicted for murdering his father-in-law, Thomas alias Pappachan. The facts reveal that the appellant and his wife, P.W. 3 were number carrying on well. PW 3 had, therefore, left the appellant and was residing with her father. On October 7, 1978, at about 1.00 p.m. P. W. 3 took away her youngest child, Jiji, from the house of C.W. 4 where she was at the relevant point of time. On the appellant companying to know about the same, he went to the house of his father-in-law and a quarrel ensued. On the same day at about 6.00 p.m., while P.W. 1 and the deceased were passing by the shop of P.W. 2, the appellant met them and once again there was an exchange of abuses, grappling and ultimately the appellant stabbed his father-in-law. There is numberdoubt that a scuffle had ensued between the two, both had fallen down and in the process the stab wounds were inflicted. The Trial Court, therefore, thought that the accused was provoked by the removal of his child, Jiji, from the residence of G.W. 4 where she was kept and on account of that provocation a quarrel had ensued between him and his father-in-law in the afternoon and later when they accidentally met at the shop of P. W. 2. In the companyrse of the quarrel there was a heated argument followed by a scuffle and thereafter the knife wounds. In the backdrop of these facts, the Trial Court thought that the case fell within clause Thirdly of Section 300, I.P.C. The Trial Court, therefore, companyvicted the appellant under Section 304, Part II and awarded a sentence of rigorous imprisonment for six years. The High Court on a re-appreciation of the evidence companycluded as under There was numbersudden fight in the heat of passion upon a sudden quarrel. The attack was all one-sided. Considering the manner of attack, the nature of the injuries caused, the parts of the body chosen for the attack and the type of weapon used, there need number be any hesitation to hold that the offence companymitted by the appellant is numberhing short of murder. We are afraid, we cannot agree with this line of reasoning of the High Court. The facts clearly show that there was an estrangement between the appellant and his wife, P.W. 3. This had led to their separation. The youngest child, Jiji, was with the appellant and had been kept at the house of C.W. 4. When the appellant learnt that the said child was removed from the house of C.W. 4, he was agitated. He went to the house of his father-in-law where there was a quarrel. Later, they again met at the shop of P.W. 2 and a heated argument took place. In the companyrse thereof there was a sudden fight which led to grappling. Both of them fell on the ground and it was in that heat of the moment that the appellant whipped out a knife which he was carrying and caused the injuries in question. We are, therefore, of the opinion that the view taken by the Sessions Court was number one which demanded interference by the High Court. The High Court is number right when it says that there was numbersudden quarrel and that the injuries were number caused in the heat of passion. In fact, the High Court has number appreciated the mental state of the appellant when he learnt that his. youngest child was removed from his custody.

Aftab Alam, J. These three appeals arise from a companymon judgment and order passed by the Karnataka High Court. By the impugned judgment, the High Court disposed of two appeals, which came to it from a companymon judgment and order passed by the trial companyrt. The High Court allowed the appeals insofar as Smt. Nagavva accused number 2 and Doddappa Ningappa Ugarkhod accused number 13 are companycerned and acquitted them of all the charges. In regard to the rest of the accused the present appellants before this Court the appeals were dismissed and their companyviction and the sentences given to them by the trial companyrt was companyfirmed by the High Court. Criminal Appeal No. 47 of 2007 that was the last among the three appeals to companye to this Court is at the instance of Sataveer Basappa Hariyal accused number1 He died on November 10, 2009 during the pendency of the appeal , Honnappa Shiddappa Banni accused number 3 , Beerappa Shiddappa Huggi accused number 9 and Yallappa Kenchappa Vibhuti accused number 16 . Criminal Appeal No. 1064 of 2005 has been filed by Beerappa Demasheppa Deshanur accused number 5 and Maruti Demasheppa Deshanur accused number 6 . All the six appellants in these two appeals are companyvicted under section 302 read with section 149 and some other ancillary sections of the Penal Code. For companymitting murder, they are sentenced to undergo rigorous imprisonment for life and a fine of Rs. 2,000/- each with the default sentence of imprisonment for six months. They are also given some lesser punishments for the various other offences but all the sentences are directed to run companycurrently. Criminal Appeal No. 683 of 2005 which was the first among the three to companye to this Court is filed by Gangappa Ningappa Ugarkhod accused number 12 . His companyviction is mainly under section 326 read with section 149 beside some other ancillary sections of the Penal Code. He is sentenced under section 326/149 to rigorous imprisonment for three years and a fine of Rs. 2,000/- with the default sentence of imprisonment for six months. The relatively lesser sentences for other offences in his case too are directed to run companycurrently with the main sentence. Both the appellants-accused and the members of the prosecution party belong to the same family and live in the same village. According to the prosecution, Sataveer accused number1 appellant number 1 in Criminal Appeal No. 47 of 2007 is the step brother of Siddappa. He carried a grudge against his father Basappa and the step brother Siddappa due to his fathers refusal to give him land in excess of his step brother. About three months prior to the occurrence, giving rise to the present case, there was an incident of assault by Sataveer and his mother Nagavva on Basappa. At that time Ningappa the Complainant had taken Basappa to hospital and had also prevailed upon Basappa to lodge a police report against Sataveer. Sometime later, the starter of the electric pump set in the land of Ningappa was stolen. He suspected the hand of Sataveer and his men in the theft and had filed a companyplaint with the police against some of the accused in the present case. This had further strained the relations between the two sides. Two days before the occurrence the companyplainants son Rudrappa had gone to fetch water from the bore-well. There the daughter of Beerappa accused No. 9 appellant number 3 in Criminal Appeal No. 47 of 2007 quarreled with him and abused him. On the same evening Beerappa and his people went to the house of the companyplainant and gave threats that they would finish off the companyplainants men. On October 12, 1991 when Ningappa, his son Rudrappa and his younger brother Basavanneppa were in the farm house, Basavanneppas wife Kasturi PW.3 came there at about 7.00 a.m. and asked them to bring the cattle from the house to the farm house. The companyplainant and his brother then proceeded from the farm house for their house Kasturi was also companying behind them. On the way, as they passed in front of the Kannada School in village Maradi Nagalapur, accused number. 1 to 28, armed with sickles and clubs came out from the side of the house of accused number 9. They were shouting at and abusing Ningappa. On hearing their shouts, Kasturi, followed by Ningappas wife, Shanthavva PW.4 , Basavanneppas third wife, Balavva and Ningappas second son, Anand PW.7 , also came there. Ningappas younger sister, Gangavva PW.5 , also arrived at the spot. The accused began to assault Basavanneppa. He was given stick blows by accused number. 1 to 5 causing grievous injuries. Accused number. 1, 2, 5, 9 and 16 assaulted PW.1. Accused number. 2, 3, 6, 9 and 16 also assaulted Basavanneppa, who died as a result of the assault. PW.1 also received grievous injuries. When PWs 3, 4, 5 and 7 tried to save PW.1, they were also assaulted by accused number. 16 to 28. Ningappa PW.1 lodged a companyplaint against the accused for offences punishable under sections 143, 147, 148, 302, 326, 324, 506 and 504 read with section 149 of the Penal Code. The injured on the prosecution side were sent to the hospital for treatment. In the meanwhile, some of the accused went to Belgaum and got themselves admitted in Belgaum Hospital. On intimation, the PSI from Belgaum P.S. went to the hospital and took down the statement of Sataveer accused number 1 in which he made the allegation of assault on him and his people by Ningappa and his party. On the basis of his statement a case was registered against Ningappa and some of the prosecution witnesses which was transferred to Bailhongal P.S. and was investigated along with the FIR of the present case. After companypletion of investigation, a charge-sheet was filed against the present appellants, accused in the case registered as C. No. 84/1993. The companynter case instituted on the basis of the companyplaint of accused number 1 was numbered as S.C. No. 71/1993. Both the cases were tried together by the Additional Sessions Judge I, Belgaum. In the companynter case S.C. No. 71/1993 there were nine accused including PWs 1, 3, 4, 5 and 8 of the present case. All the accused in that case were finally acquitted by judgment and order dated September 7, 2001 passed by the trial companyrt. In the present case, the accused pleaded number guilty and claimed to be tried. The prosecution in support of its case examined 28 witnesses PWs 1 to 5, 7 and 8 are eye-witnesses PW.6 is the doctor who medically exmanined Ningappa, Ganganvva Nagappa Chandaragi, Smt. Shanthavva, Balavva Basappa Chandaragi, Anand Ningappa Chandaragi and Smt. Kasturi and proved their injury reports which were marked as Exhibit Nos. P.2, P.3, P.4, P.5, P.6 and P.7 respectively. He also examined the two sticks, six bamboo sticks and four pieces of stone, seized by the police and gave his opinion that the injuries caused to the persons examined by him, except injury number 5 of Ningappa, companyld be caused by those articles. PW.17 is another doctor who had medically examined Ningappa and who proved his injury report Exhibit No. P.15 before the companyrt. PW.25 is the doctor who held post-mortem on the deceased. He proved the post-mortem report made by him which was marked as Exhibit No. P.27. PWs 26, 27 and 28 are the police officers who investigated the case. In companyrse of the trial, two, among the 28 accused on trial, died. At the companyclusion of the trial, the trial companyrt by its judgment and order dated September 7, 2001 in Sessions Case No. 84/1993 acquitted 16 of the accused but found the remaining 10 guilty of the charges and companyvicted accused number. 1, 2, 3, 5, 6, 9 and 16 under section 302/149 of the Penal Code, accused number 12 and 13 under section 326/149 of the Penal Code and accused number 25 under section 324/149 of the Penal Code. Out of the 10 companyvicted accused, 9 went to the High Court in two appeals being Appeal Nos. 1490 of 2001 and 1491 of 2001 accused number 25 companyvicted under section 324/149 of the Penal Code did number file any appeal . The High Court, by its judgment and order dated December 18, 2004, acquitted accused number. 2 and 13 but companyfirmed the companyviction and sentence given to the rest of the accused, who are number in appeal before this Court. The medical evidence fully supports the prosecution case. We have also gone through the depositions of the seven eye-witnesses and the ocular account of the occurrence is quite unimpeachable. However, the learned companynsel appearing for the appellants strongly submitted that some of the accused had received injuries and those remained unexplained by the prosecution. He, therefore, companytended that the occurrence clearly did number take place in the manner presented by the prosecution and for that reason alone the prosecution case deserved to be junked. Both the trial companyrt and the High Court have taken this aspect of the matter in due companysideration. The trial companyrt has pointed out, and in our view quite rightly that the defense in this case companypletely denied the occurrence. According to the defense, the occurrence took place in a different manner and at a companypletely different place as alleged in the companynter case being S.C. No. 71/1993. The trial companyrt further observed that since the accused denied the very occurrence, numberreliance companyld be placed on the alleged injuries suffered by them, insofar as the trial of S.C. No. 84/1993 is companycerned. Moreover, the defense story, which was the prosecution case in S.C. No.

P. Wadhwa, J. This batch of appeals arises out of judgment dated October 9, 1980 passed by the Division Bench of the Gujarat High Court holding that Section 406 2 e of the Bombay Provincial Municipal Corporations Act, 1949 in its application to Ahmedabad in the State of Gujarat was a valid piece of legislation. Section 406 of the Act we may set out here and number 406. 1 Subject to the provisions hereinafter companytained, appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Judge. No such appeal shall be entertained unless a it is brought within fifteen days after the accrual of the cause of companyplaint b in the case of an appeal against a rateable value a companyplaint has previously been made to the Commissioner as provided under this Act and such companyplaint has been disposed of c in the case of an appeal against any tax in respect of which provision exists under this Act for a companyplaint to be made to the Commissioner against the demand, such companyplaint has previously been made and disposed of d in the case of an appeal against any amendment made in the assessment book for property taxes during the official year, a companyplaint has been made by the person aggrieved within fifteen days after he first received numberice of such amendment and his companyplaint has been disposed of e in the case of an appeal against a tax, or in the case of an appeal made against a rateable value, the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, up to the date of filing the appeal, has been deposited by the appellant with the Commissioner Provided that where in any particular case the judge is of the opinion that the deposit of the amount by the appellant will cause undue hardship to him, the judge may in his discretion, either unconditionally or subject to such companyditions as he may think fit to impose, dispense with a part of the amount deposited so however that the part of the amount so dispensed with shall number exceed twenty five per cent of the amount deposited or required to be deposited. Judge is defined in Section 2 29 of the Act to mean in the City of Ahmedabad the Chief Judge of the Court of Small Causes or such other Judge of the Court as the Chief Judge may appoint in his behalf and in any other City the Civil Judge Senior Division having jurisdiction in the City. Section 406 suffered some amendments. In sub-section 2 for the words shall be heard were substituted by shall be entertained. Proviso to clause e of sub-section 2 was first added by Gujarat amendment 5 of 1970. This proviso as it number exists was then substituted by Gujarat Amendment 1 of 1979. Appellants in all these appeals own properties in the City of Ahmedabad. They are liable to pay property tax which is a tax on buildings and lands in the City. Property tax is revisable every four years. When last revision took place, appellants challenged those assessments in appeals which they filed before the Judge under Section 406 1 of the Act after bills were presented by the Municipal Corporation to them. During the pendency of appeals before the Judge, appellants prayed for stay of recovery of the property tax. In view of proviso to clause e of Section 406 2 of the Act, the Judge companyld number give effective interim relief to the appellants as exemption from payment of property tax companyld number be more than 25 of the amount of the property tax demanded from the appellants. The appellants therefor challenged the companystitutional validity of clause e of subsection 2 of Section 406 companytending that it was violative of Article 14 of the Constitution. The Division Bench who heard the writ petitions companysidered the earlier history of amendments to clause e of Section 406 2 of the Act. Clause e , as it originally stood at the time when the Act was made applicable to the City of Ahmeadbad, read as under No such appeal shall be heard unlessin the case of an appeal against a tax or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant, the claimed from the appellant has been deposited by him with the Commissioner. A Division bench of the Gujarat High Court in SCA No.662 of 1968 decided on October 27, 1969 held that clause e violated Article 14 of the Constitution. It is number necessary for us to go into the reasons which weighed with the Court in reaching such a companyclusion. By Gujarat Act 5 of 1970 following proviso was added to clause e Provided that where in any particular case the Judge is of opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion dispense with such deposit or part thereof either unconditionally or subject to such companyditions as he may deed fit. This proviso also came to be challenged before the Gujarat High Court on the same very plea that it violated the provisions of Article 14 of the Constitution. This time also a Division Bench of the High Court held that clause e violated Article 14 of the Constitution. This decision of the High Court was challenged in this Court in The Anant Mills Co. Ltd. vs. State of Gujarat and Others 1975 2 SCC 175. This Court reversed the decision of the High Court and held that clause e with the added proviso did number violate article 14 of the Constitution. Now it is this amended clause e and the proviso which were subject matter of the companystitutional challenge in the High Court and by the impugned judgment, High Court held the same to be companystitutionally valid and dismissed all the petitions filed before it. We may refer to the reasons which led this Court to uphold the companystitutional validity of clause e read with proviso which was added by Gujarat Act 5 of 1970. This Court said After hearing the learned Counsel for the parties, we are unable to subscribe to the view taken by the High Court. Section 406 2 e as amended states that numberappeal against a rateable value or tax fixed or charged under the Act shall be entertained by the Judge in the case of an appeal against a tax or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant, unless the amount claimed from the appellant has been deposited by him with the Commissioner. According to the proviso to the above clause, where in any particular case the Judge is of opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion dispense with such deposit or part thereof, either unconditionally or subject to such companyditions as he may deem fit. The object of the above provision apparently is to ensure the deposit of the amount claimed from an appellant in case he seeks to file an appeal against a tax or against a rateable value after a bill for any property tax assessed upon such value has been presented to him. Power at the same time is given to the appellate Judge to relieve the appellant from the rigour of the above provision in case the Judge is of the opinion that it would cause undue hardship to the appellant. The requirement about the deposit of the amount claimed as a companydition precedent to the entertainment of an appeal which seeks to challenge the imposition or the quantum of that tax, in our opinion, has number the effect of nullifying the right of appeal, especially when we keep in view the fact that discretion is vested in the appellate Judge to dispense with the companypliance of the above requirement. All that the statutory provision seeks to do is to regulate the exercise of the right of appeal. The object of the above provision is to keep in balance the right of appeal, which is companyferred upon a person who is aggrieved with the demand of tax made from him, and the right of the Corporation to speedy recovery of the tax. The impugned provision accordingly companyfers a right of appeal and at the same time prevents the delay in the payment of the tax. We find ourselves unable to accede to the argument that the impugned provision has the effect of creating a discrimination as is offensive to the principle of equality enshrined in Article 14 of the Constitution. It is significant that the right of appeal is companyferred upon all persons who are aggrieved against the determination of tax or rateable value. The bar created by Section 406 2 e to the entertainment of the appeal by a person who has number deposited the amount of tax due from him and who is number able to show to the appellate Judge that the deposit of the amount would cause him undue hardship arises out of his own omission and default. The above provision, in our opinion, has number the effect of making invidious distinction or creating two classes with the object of meting out differential treatment to them it only spells out the companysequences flowing from the omission and default of a person who despite the fact that the deposit of the amount found due from him would cause him numberhardship, declines of his own volition to deposit that amount. The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is number entitled to file an appeal. We fail to understand as to why the Legislature while granting the right of appeal cannot impose companyditions for the exercise of such right. In the absence of any special reasons there appears to be numberlegal or companystitutional impediment to the imposition of such companyditions. It is permissible, for example, to prescribe a companydition in criminal cases that unless a companyvicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that numberappeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book in Section 30 of the Indian Income-tax Act, 1922. The proviso to that section provided that . . . numberappeal shall lie against an order under sub-section 1 of Section 46 unless the tax has been paid. Such companyditions merely regulate the exercise of the right of appeal so that the same is number abused by a recalcitrant party and there is numberdifficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the Legislature to impose an accompanying liability upon a party upon whom legal right is companyferred or to prescribe companyditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfillment of that companydition in case the party companycerned seeks to avail of the said right is a valid piece of legislation, and we can discern numbercontravention of Article 14 in it. A disability or disadvantage arising out of a partys own default or omission cannot be taken to be tantamount to the creation of two classes offensive to Article 14 of the Constitution, especially when that disability or disadvantage operates upon all persons who make the default or omission. By the Amending Act 1 of 1979 discretion of the Court in granting interim relief has number been limited to the extent of 25 of the tax required to be deposited. It is, therefore, companytended that earlier decision of this Court in Anant Mills case may number have full application. We, however, do number think that such a companytention can be raised in view of the law laid by this Court in Anant Mills case. This Court said that right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be companyditionally given. Right of appeal which is statutory right can be companyditional or qualified. It cannot be said that such a law would be violative of Article 14 of the Constitution. If the statute does number create any right of appeal, numberappeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute. However, in regard to an appeal, position is quite opposite. The right to appeal inheres in numberone and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of appeal, it can impose companyditions as well see Smt. Ganga Bai vs. Vijay Kumar Ors. 1974 2 SCC 393. In M s. Elora Construction Company vs. Municipal Corporation of Greater Bombay Ors. AIR 1980 Bom.162, the question before the Bombay High Court was as to the validity of Section 217 of the Bombay Municipal Corporations Act. This Section provided for filing of appeal against any rateable value or tax fixed or charged under that Act but numbersuch appeal companyld be entertained unless d in the case of an appeal against a tax, or in the case of an appeal made against a ratable value the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed ratable value, up to the date of filing of the appeal, has been deposited by the appellant with the Commissioner. It will be seen that clause d aforesaid was in similar terms as clause e of Section 406 2 as it originally existed. Bombay High Court upheld the companystitutional validity of Section 217 of the Bombay Municipal Corporation Act. Calcutta High Court in Chhatter Singh Baid Ors. vs. Corporation of Calcutta Ors. AIR 1984 Cal. 283 also took the same view. There it was sub-section 3A of Section 183 of the Calcutta Municipal Act, 1951 which provided No appeal under this section shall be entertained unless the companysolidated rate payable up to the date of presentation of the appeal on the valuation determined a by an order under Section 182, in the case of an appeal to the Court of Small Causes, b by the decision of the Court of Small Causes, in the case of an appeal to the High Court, has been deposited in the municipal office and such companysolidated rate is companytinued to be deposited until the appeal is finally decided. Similar provisions existed in the Delhi Municipal Corporation Act, 1957. There it is Section 170 which is as under Conditions of right to appeal.No appeal shall be heard or determined under Section 169 unless a the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 exclusive of the time requisite for obtaining a companyy of the relevant entries therein or, as the case may be, within thirty days of the date on which an amendment is finally made under Section 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the numberice of assessment or of alteration of assessment or, if numbernotice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first numberice of demand in respect thereof Provided that an appeal may be admitted after the expiration of the period prescribed therefor by this section if the appellant satisfies the companyrt that he had sufficient cause for number preferring the appeal within that period b the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation. A Full Bench of the Delhi High Court, by majority, upheld the companystitutional validity of the aforesaid provision though there was also challenge to the same based on Article 14 of the Constitution. Appeal against the judgment of the Delhi High Court was taken to this Court which upheld the view of the Delhi High Court. The decision of this Court is reported as Shyam Kishore and Ors. vs. Municipal Corporation of Delhi Anr. 1993 1 SCC 22. This Court relied on its earlier decisions in Ganga Bai case and Anant Mills case. Reference was also made to another decision of this Court in Vijay Prakash D. Mehta Shri Jawahar D. Mehta vs. Collector of Customs Preventive , Bombay 1988 4 SCC 402 where Justice Sabyasachi Mukharji, J., speaking for the Court, said Right to appeal is neither an absolute right number an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the companyditions in the grant. It is number necessary for us to refer to other decisions asserting the same principle time and again. When the statement of law is so clear, we find numberdifficulty in upholding the vires of clause e of sub-section 2 of Section 406 read with proviso thereto. Any challenge to its companystitutional validity on the ground that onerous companyditions have been imposed and right to appeal has become illusory must be negatived. We also numbere that under clause c of sub-section 2 of Section 406, a companyplaint lies to the Municipal Commissioner against imposition of any property tax and only after that when the companyplaint is disposed of that appeal can be filed. Appeal to the Court as provided in clause e may appear to be rather a second appeal. Then under Section 408 of the Act provisions exist for referring the matter to arbitration. Under sub-section 1 of Section 408 where any person aggrieved by any order fixing or charging any rateable value or tax under the Act desires that any matter in difference between him and the other parties interested in such order should be referred to arbitration, then, if all such parties agree to do so, they may apply to the Court for an order of reference on such matter and when such an order is made provisions relating to arbitration in suits shall apply.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2279 of 1970. From the Judgment and Decree dated the 28th/29th July, 1970 of the Gujarat High Court in First Appeal No. 438 of 1962. U. Mehta and R.P. Kapoor for the Appellant. A. Francis, S.N. Chaudhary and R.N. Poddar for the Respondent. N. Sachthey for the Intervener. H. Dhebar for the Intervener. The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by certificate is filed against the judgment and decree dated July 29, 1970 passed by the High Court of Gujarat in First Appeal No. 438 of 1962 affirming the judgment and decree dated August 27, 1962 passed in Special Civil Suit No. 254 of 1959 on the file of the Civil Judge Senior Division , Junagadh dismissing the suit of the plaintiffs for possession of the properties mentioned in Schedule-I attached to the plaint and for damages and other reliefs against the Union of India. The properties in question which are situated in the area which formed part of the former princely State of Junagadh originally belonged to one Haji Umar Kasam, a resident of Junagadh who died on May 22, 1956. The plaintiffs are his heirs and legal representatives. The Nawab of Junagadh accepted the accession of his State to Pakistan on August 13, 1947. On September 23, 1947 Haji Umar Kasam left Junagadh for Haj and sailed from Bombay by S.S. Akbar on October 8, 1947. On October 24, 1947, the Nawab of Junagadh fled to Pakistan. The State of Junagadh was taken over by its people and a Council of Administration was set up to administer it. Thereafter the State acceded to India. On February 13, 1948 Junagadh State Evacuee Administration of Property Act XII of 1948 hereinafter referred to as the Junagadh Act was enacted. It provided for the administration of the properties belonging to evacuees. Under that Act the expression evacuee was defined as a person ordinarily resident in or owning property or carrying on business in any village or town within the Junagadh State who had on account of civil disturbances or the fear of such disturbances left that village or town and did number personally occupy or supervise his property or business. All property in which an evacuee had any right or interest other than any moveable property in his immediate physical possession which was called evacuee property situated within the Junagadh State came to be vested in the Custodian appointed for the purpose of that Act and was directed to companytinue to be so vested until the Junagadh State Government by numberification otherwise directed. There were detailed provisions in that Act relating to the management of evacuee properties. Section 16 1 of that Act however provided that on being satisfied that evacuees had returned or were returning to the Junagadh State, the Junagadh State Government might by numberification in the State Gazette authorise return of the property to the owners in accordance with the aforesaid section 16. Any person claiming to be entitled to any such property companyld apply in writing to the Custodian who had after giving public numberice to hold a summary enquiry into the claim and to pass a formal order declaring the person to whom the possession of the property might be delivered. A numberice was issued by the Assistant-Custodian who also exercised certain specified powers of the Custodian under the Junagadh Act on May 1, 1948 in respect of the properties of Haji Umar Kasam as he had number returned to Junagadh and was away for more than six months. On May 5, 1948 his son Haji Mohamed Siddik Haji Umar sent a reply to that numberice stating that his father Haji Umar Kasam had number gone away from Junagadh out of fear of civil disturbances that he had gone on Haj that all his heirs were living in Junagadh and that he was returning shortly and therefore his properties might number be treated as evacuee properties. No specific reason was, however, given in the said reply for the long delay in the return of Haji Kasam. On receipt of his reply that numberice was withdrawn on May 31, 1948. Since Haji Umar Kasam had number returned till September, 1948 the possession of the suit properties was taken by the Custodian between September 23, 1948 and October 1, 1948 as evacuee properties. By the Saurashtra Ordinance III of 1949, the territory of the Junagadh State was integrated with the United States of Saurashtra. It is alleged that by an order dated March 1, 1949 Haji Umar Kasam was declared to be a number-evacuee and the ice factory, one of the suit properties, was ordered to be returned to his sons. This fact is disputed by the Union of India although the High Court of Gujarat has held that there was such an order. The possession of the ice factory was number, however, returned. It companytinued to be with the Custodian. But again on May 20, 1949, the Custodian purporting to exercise his power under the Junagadh Act treated Haji Umar Kasam as an evacuee and directed that his ice factory should be taken possession of as an evacuee property. The ice factory was leased out by the State Government in favour of a refugee called Suraji Krishan Nandlal Chowdhary in May, 1949. Since Haji Umar Kasam had number yet returned to India, his sons filed an appeal in July, 1949 before the District Judge, Junagadh against the order declaring him as an evacuee. On August 4, 1949 the Saurashtra Ordinance XLIII of 1949 hereinafter referred to as the Saurashtra Ordinance was passed repealing the Junagadh Act and under that Ordinance the properties vested in the Custodian under the Junagadh Act came to be vested in the Custodian of the United States of Saurashtra. This Ordinance was repealed and replaced by the Administration of Evacuee Property Ordinance No. XXVII of 1949 hereinafter referred to as the Central Ordinance which applied also to all the acceding States except Cooch- Behar, Manipur and Tripura with effect from October 18, 1949. The Central Ordinance was repealed and replaced by the Administration of Evacuee Property Act, 1950 Act XXXI of 1950 hereinafter referred to as the Act which came into force on April 17, 1950. Haji Umar Kasam returned to India on December 23,1949 after the Central Ordinance had companye into force. Now reverting to the appeal preferred by the sons of Haji Kasam filed in July, 1949 before the District Judge, Junagadh it is seen that the said appeal was transferred by the District Judge to the High Court of Saurashtra State without deciding it. The High Court in its turn as per its order dated March 22, 1950 sent the appeal to the Custodian of Evacuee Property of Saurashtra on a joint submission made by the companynsel appearing for the appellants as well as the companynsel for the Custodian with which the High Court agreed. When the said appeal was pending before the Custodian, a petition purporting to be under sub-section 2 of section 6 and section 27 of the Central Ordinance was presented by Haji Umar Kasam himself to the Custodian General of Evacuee Property requesting him to withdraw the appeal to his file and to dispose it of. That petition dated April 17, 1950 was actually presented on April 19, 1950. Before the above petition companyld be heard by the Custodian General, the Custodian dismissed the appeal on June 2, 1950 on two grounds viz. i that the appeal had been filed after the expiry of the period of limitation and that Haji Umar Kasam having left the Junagadh State limits after August 15, 1947 and having number returned by the time the order under appeal was passed i.e. May 20, 1949 he had been rightly treated as an evacuee. Against the order passed by the Custodian on the appeal on June 2, 1950 a revision petition was filed before the Custodian General under section 27 of the Act. The Custodian General took up for companysideration the petition filed on April 19, 1950 requesting him to withdraw the appeal then pending before the Custodian and the revision petition filed against the order passed in appeal by the Custodian together. After hearing the companynsel for Haji Umar Kasam the Custodian General disposed them of by his order dated August 9, 1950. Though he agreed with the submission made on behalf of Haji Umar Kasam that the appeal filed against the order passed by the Custodian, Junagadh on May 20, 1949 companyld number be disposed of by the Custodian of Saurashtra State, who was of the same rank as the Custodian who had passed the order under appeal, he found it difficult to go behind the order of the High Court of Saurashtra which had transferred the appeal to the Custodian of Saurashtra by its order agreeing with the joint submission made by the companynsel for the appellants therein and the companynsel for the Custodian. That Judicial order according to the Custodian General, having become final companyld number be interfered with by him. He also felt that it was number possible for him to set aside the order of May 20, 1949 passed by the Custodian, Junagadh as the office of the Custodian General was number in existence then, even if he companyld interfere with the appellate order passed by the Custodian of Saurashtra holding that the appeal was barred by time. For these and other reasons, the Custodian General dismissed both the petition dated April 19, 1950 and the revision petition by his order dated August 9, 1950. That order was allowed to become final. Haji Umar Kasam also made an application in January, 1950 to the Custodian for restoration of his property under section 16 of the Central Ordinance. That Section read as Restoration of Property 1 the Custodian may, on application made to him in this behalf in writing by an evacuee or any person claiming to be an heir of an evacuee, restore subject to such terms and companyditions as he may think fit to impose, the evacuee property to which the evacuee or other person would have been entitled if this Ordinance were number in force Provided that the applicant produces in support of his application a certificate from the Central Government or from any person authorised by it in this behalf, to the effect that the evacuee property may be so restored if the applicant is otherwise entitled thereto. On receipt of an application under sub-section 1 , the Custodian shall cause public numberice thereof to be given in the prescribed manner, and, after holding a summary inquiry into the claim in such manner as may be prescribed may- a make a formal order declaring that the property shall be restored to the applicant or b reject the application or c refer the applicant to a civil companyrt for the determination of his claim and title to the property Provided that numberorder for restoration shall be made under this section, unless provision has been made in the prescribed manner for the recovery of any amount due to the Custodian in respect of the property or the management thereof. Upon the restoration of the property to the evacuee or to the heir, as the case may be, the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall number prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored Provided that every lease granted in respect of the property or on behalf of the Custodian shall have effect against the person to whom restoration is made until such lease is determined by lapse of time or by operation of law. Underlining by us Note Section 16 1 of the Act which replaced the Central Ordinance on April 17, 1950 was in the same terms. On receipt of that application filed by Haji Umar Kasam, the Custodian informed him on February 25, 1950 that in order to proceed with it, it was necessary that he should produce a certificate of the Central Government as companytemplated under the proviso to section 16 1 set out above. Accordingly he applied to the Custodian General for such a certificate on March 19, 1950. That application was sent to the Custodian of Saurashtra for enquiry and report. The Custodian submitted his final report on June 30, 1953. In his application Haji Umar Kasam had claimed that he had left India for the purpose of Haj and had gone to Mecca where he fell ill necessitating a prolonged stay there. He also claimed that he had stayed all along there from September 1947 to December 1949 when he returned to India. In support of his case he produced certificate dated December 3, 1949 issued by the Indian Consul at Jeddah Saudi Arabia saying that he had been unavoidably detained there and companyld number be repatriated earlier. On enquiry the Custodian found that apart from the other circumstances, such as earlier statements made by the sons of Haji Umar Kasam, certain remittances sent from the Bank of India, Junagadh Branch to him which were encashed at Karachi suggested that Haji Umar Kasam must have been in Karachi for a major part of the period during which he was away from India. The following was the list of remittances THE BANK OF INDIA JUNAGADH BRANCH Amount remitted by various individuals and firms to parties residing in Karachi Pakistan through this branch. Sr. Date of Name of remitter Amount Name of Receiver No. remittance remitted in Pakistan 1 2 3 4 5 24 3-11-47 Haji Ibrahim Ayub 12,000 Haji Umar Kasam 70 22-11-47 Haji Ibrahim Ayub 4,500 Haji Umar Kasam 167 27-11-47 Haji Ibrahim Ayub 3,500 Haji Umar Kasam 488 23-1-48 Baramain H. Mian 1,000 Haji Umar Kasam 573 10-4-48 Alibhai Haji Hakim- 2,000 Haji Umar Kasam bhai 592 1-5-48 Haji A. Haji Umar 5,000 Haji Umar Kasam 617 7-6-48 Haji A. Haji Umar 5,000 Haji Umar Kasam 620 9-6-48 Abdreman Kasam 1,800 Umar Kasam The Custodian reported that the evidence before him revealed that Haji Umar Kasam had received the payments through the above bank remittances at Karachi and that the case that Haji Umar Kasam had stayed in Mecca throughout was number believable. After companysidering the entire matter before it and the report referred to above the Government of India declined to grant a certificate referred to in the proviso to section 16 1 of the Act as it stood then and companymunicated its decision to Haji Umar Kasam through the Custodian, Saurashtra on July 3, 1954 This decision again was number questioned in any companyrt. A numberification under section 12 of the Displaced Persons Compensation and Rehabilitation Act, 1954 was issued in respect of the properties in question on June 8, 1955. No further effective action appears to have been taken by Haji Umar Kasam against this numberification except writing letters to the ministers of the Government of India, some of which are produced before this Court by way of answer to a question put by the Court as to whether any such action was taken before the institution of the suit. As mentioned earlier Haji Umar Kasam died on May 22, 1956. Thereafter his heirs and legal representatives filed the suit out of which this appeal arises in the year 1959 after issuing the required numberice dated January 2, 1959 under section 80 of the Code of Civil Procedure. In that numberice, it was stated that the Special Custodian Officer had taken possession of the suit properties between September 23, 1948 and October 1, 1948 illegally acting in abuse of his power. The plaintiffs demanded the return of the suit properties and also damages for illegal possession from October 1, 1948 to January 1, 1959. The main companytention of the plaintiffs in the suit is set out in paragraphs 4 and 5 of the plaint. It is pleaded therein that Haji Umar Kasam was number an evacuee that the first numberice issued by the Custodian Officer was withdrawn on May 31, 1948 that again in September, 1948 the Special Custodian Officer had taken possession of the ice factory belonging to Haji Umar Kasam without issuing any numberice to him and later on a representation made by the plaintiffs, the Special Custodian Officer passed an order on March 1, 1949 directing the restoration of the properties of Haji Umar Kasam to him and that again on May 20, 1949 the Custodian of Evacuee Property, Junagadh had made a declaration that Haji Umar Kasam was an evacuee and directed the taking over of his properties. It is companytended that the order of May 20, 1949 which was passed without issuing numberice and without holding an enquiry after the order of March 1, 1949 was illegal and in excess of jurisdiction. In paragraphs 6 and 7 of the plaint, it was alleged that the order passed by the Custodian on June 2, 1950 was bad in law and the rejection of the petition by the Custodian General on August 9, 1950 and the refusal by the Government of India to grant the certificate under section 16 of the Act were again companytrary to law. The suit was filed by the heirs and legal representatives of Haji Umar Kasam on the above basis for possession of the twelve properties mentioned in Schedule-I attached to the plaint which originally belonged to him. The defendant, Union of India, which companytested the suit while number denying that an order was made on March 1, 1949 as stated above, inter alia pleaded that the order dated May 20, 1949 had been passed in accordance with law after making necessary inquiry at which the plaintiffs had been given sufficient opportunity to prove that Haji Umar Kasam was number an evacuee. Reliance was also placed by the Union of India on the orders passed on the application made under section 16 of the Act, the numberification issued under section 12 of the Displaced Persons Compensation and Rehabilitation Act, 1954 and section 46 of the Act which barred the jurisdiction of the civil companyrt to decide the questions raised in the suit. On the aforesaid pleadings, the trial companyrt framed as many as fifteen issues and at the companyclusion of the trial recorded its findings on them. Ultimately the suit was dismissed. The High Court in appeal discussed the effect of some of the provisions of law applicable to the case and dismissed the appeal. It did number, however, deal with all the issues. It may be numbered that on the question relating to the existence of the order of March 1, 1949 while the trial companyrt was of the view that there was numbersuch order, the High Court held that such an order had been made. In order to deal with the companytentions of the parties before us it is necessary to deal with the effect of the orders passed from time to time under the various provisions of law applicable to the case. These orders can be classified into two groups viz. those passed prior to the companying into force of the Central Ordinance i.e. prior to October 18, 1949 and those passed after the Central Ordinance came into force. We shall first deal with the orders passed prior to the companying into force of the Central Ordinance. It is number necessary to companysider the provisions of the Junagadh Act which came into force on February 13, 1948. It did number provide for any enquiry before treating any property as evacuee property. Section 2 b of the Junagadh Act defined the term evacuee and section 2 c defined the term evacuee property as all property in which an evacuee had any right or interest. The object of the Junagadh Act was to make provision for the preservation and the management of evacuee properties. Section 4 of that Act provided that an evacuee property situated within the Junagadh State would vest in the Custodian for the purpose of that Act and would companytinue to be so vested until the Junagadh State Government by numberification otherwise directed. Section 7 of that Act required the Custodian to take possession of all evacuee properties. Section 8 of that Act provided for an enquiry by the Custodian into the claims of any person in respect of property taken possession of by him as evacuee property. If the Custodian was satisfied that the claimant had any right to it, he had to give effect to it. But if he rejected the claim, the aggrieved party companyld file an appeal before the High Court. Section 16 1 of that Act empowered the Junagadh State Government by numberification in the State Gazette to authorise the return of any evacuee property on being satisfied that the companycerned evacuee had returned or was returning to the State of Junagadh after holding an enquiry into the title of such evacuee to the property in question. It is thus clear that the pattern of the provisions of the Junagadh Act was different from the provisions of the Act. Whereas under section 7 of the Act an enquiry had to precede the declaration that a property was an evacuee property under the Junagadh Act numbersuch enquiry was companytemplated. But the provisions of the Junagadh Act did number allow any unjust results to follow. The Custodian was required to take possession of any property which had been left in Junagadh by an evacuee and to preserve and manage it until the evacuee returned and on his return the possession was to be restored to him. There was numberviolation of any principles of natural justice as such involved in the process. On the other hand it provided for a machinery for preventing the properties of evacuees being occupied by trespassers and for their preservation. The suit properties had been admittedly taken over by the Custodian as evacuee properties in September, 1948 because Haji Umar Kasam had number returned to Junagadh for over one year. Such taking over was an administrative act. The properties taken over as evacuee properties under the Junagadh Act by reason of the companybined effect of section 4 and section 16 1 there of companytinued to be vested in the Custodian until the Junagadh State Government by numberification published in the Official Gazette authorised their restoration to the owner. No Gazette numberification authorising such restoration is produced before the Court. The order dated March 1, 1949 under which it is claimed that the properties were ordered to be returned is also number produced. Even if such an order was there unless it is shown that such an order had been passed by the State Government and published in the Official Gazette, the evacuee properties taken over under the Junagadh Act would number cease to be evacuee properties. The order dated May 20, 1949 did number, therefore, in any way alter the situation. It only reiterated the true character of the properties namely that the properties in question were evacuee properties which had been taken over in exercise of the powers under the Junagadh Act. It is admitted by Haji Ahmed Haji Umar, plaintiff No. 2 in his deposition that they were in the possession of the Custodian when the Saurashra Ordinance came into force on August 4, 1949. Section 4 of that ordinance provided that the provisions companytained in that Ordinance and the rules and orders made thereunder would have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force in the United States of Saurashtra of which Junagadh was a part. Section 5 of that Ordinance provided for the vesting of all evacuee properties situated in the United States of Saurashtra in the Custodian under the Ordinance. Thus the properties vested in the Custodian of Junagadh came to be vested in the Custodian of the United States of Saurashtra. The properties of Haji Umar Kasam also accordingly became vested in the Custodian of the United States of Saurashtra. The Central Ordinance came into force on October 18, 1949 and it was applicable to the State of Saurashtra also. Section 55 of that Ordinance reads as follows Repeals and saving. 1 The administration of Evacuee Property Ordinanc, 1949 XII of 1949 , as in force in the Chief Commissioners Provinces and the Province of Madras and the United Provinces is hereby repealed. If, immediately before the companymencement of this Ordinance, there is in force in any Province other than any of the Provinces specified in sub-section 1 or in any Acceding State any law companyresponding to the Administra tion of Evacuee Property Ordinance, 1949, that law also shall stand repealed. Notwithstanding the repeal by the Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any companyresponding law, anything done or any action taken in the exercise of any power companyferred by that Ordinance or law shall be deemed to have been done or taken in the exercise of the powers companyferred by this Ordinance, and any penalty incurred or proceeding companymenced under that Ordinance or law shall be deemed to be a penalty incurred or proceeding companymenced under this Ordinance as if this Ordinance were in force on the day on which such thing was done, action taken, penalty incurred or proceeding companymenced. Sub-sections 2 and 3 of section 55 extracted above treated all actions taken under the Saurashtra Ordinance which also came to be repealed as actions taken under the Central Ordinance. By section 8 2 of this Ordinance all evacuee properties vested in the Custodian of the United States of Saurashtra became vested in the Custodian appointed or deemed to be appointed under it. That subsection reads as. Vesting of evacuee property in the Custodian 1 Where immediately before the companymencement of this Ordinance any evacuee property in a Province had vested in any person exercising the powers of a Custodian under any law repealed hereby, the evacuee property shall, on the companymencement of this Ordinance, be deemed to have vested in the Custodian appointed or deemed to have been appointed for the Province under this Ordinance, and shall companytinue to so vest. It is only after the Central Ordinance came into force that Haji Umar Kasam who had returned to India in December, 1949 preferred his petitions for restoration of his properties under section 16 1 of the Central Ordinance and also applied for a certificate as per proviso to that subsection to the Government of India. Again it is only after the Act came into force on April 17, 1950 replacing the above Central Ordinance, the Custodian General disposed of the petition for transfer of the appeal pending before the Custodian of Saurashtra and the revision petition filed against his order dated June 2, 1950. The effect of these proceedings have to be companysidered in the light of the provisions of the Act. The relevant provisions of the Act which have to be companysidered are section 8 2 , section 8 2A , section 16 1 , section 28, section 46 and section 58. It may he mentioned here that section 8 2A of the Act was inserted into the Act by the Administration of Evacuee Property Amendment Act, 1960 Act I of 1960 on February 27, 1960 but section 2 of that Act declared that new subsection shall be inserted and shall be deemed always to have been inserted thus giving it retrospective effect from the date of the companymencement of the Act. Section 16 1 of the Act was in the same terms as section 16 1 of the Central Ordinance extracted above. The other relevant provisions of the Act are given below Vesting of evacuee property in the Custodian. 1 Where immediately before the companymencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby the property shall, on the companymencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall companytinue to so vest Provided that where at the companymencement of this Act there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding under section 8 or section 30 of the Administration of Evacuee Property Ordinance, 1949 XII of 1949 , or under any other companyresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 XXVII of 1949 , then numberwithstanding anything companytained in this Act or any other law for the time being in force, such proceeding shall be disposed of as if the definitions of evacuee property and evacuee companytained in section 2 of this Act had become applicable thereto. 2A Without prejudice to the generality of the provisions companytained in sub-section 2 , all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, numberwithstanding any defect in, or the invalidity of, such law or any judgment, decree or order of any companyrt, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall, on the companymencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or, any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken. Finality of orders under this Chapter-Save as otherwise expressly provided in this Chapter, every order made by the Custodian-General, District Judge, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall number be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding. Jurisdiction of civil companyrts barred in certain matters. Save as otherwise expressly provided in this Act, numbercivil or revenue companyrt shall have jurisdiction- a to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is number evacuee property or b c to question the legality of any action taken by the Custodian-General or the Custodian under this Act or d in respect of any matter which the Custodian- General or the Custodian is empowered by or under this Act to determine. Repeals and savings-The Administration of Evacuee Property Ordinance, 1949 and the Hyderabad Administration of Evacuee Property Regulation are hereby repealed. If, immediately before the companymencement of this Act, there is in force in any State to which this Act extends any law which companyresponds to this Act and which is number repealed by sub-section 1 , that companyresponding law shall stand repealed. The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949, or the Hyderabad Administration of Evacuee Property Regulation or of any companyresponding law shall number affect the previous operation of that Ordinance, Regulation or companyresponding law and subject thereto, anything done or any action taken in the exercise of any power companyferred by or under that Ordinance, Regulation or companyresponding law, shall be deemed to have been done or taken in the exercise of the powers companyferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken. The effect of the provisions of the Act in so far as this case is companycerned may be summarised thus All properties vested in the Custodian under the Central Ordinance became evacuee property in the hands of the Custodian appointed under the Act by virtue of sub-sections 2 and 2A of section 8 of the Act. Any doubt that existed about the vesting of the properties in the Custodian under the Act as evacuee property was removed by enacting section 8 2A of the Act with retrospective effect. It says that all property which under any law repealed by the Act purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, numberwithstanding any defect in or the invalidity of such law or any judgment, decree, order of any companyrt be deemed for all purposes to have validly vested in that person as if the provisions of that law had been enacted by Parliament and such property shall on the companymencement of the Act be deemed to have been evacuee property declared as such within the meaning of the Act and accordingly any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken. This provision operates even if there is numberdefect in any previous law under which action is taken and cures all defects, if any, in the taking over of the properties as evacuee properties. The words numberwithstanding any defect in or the invalidity of, such law or any Judgment, decree, or order of any companyrt found in sub-section 2A of section 8 of the Act do number cut down the operation of the clear words of that sub-section which validate the vesting of any property which purports to have vested as evacuee property even if there was any irregularity in the procedure. The number-obstante clause referred to above is number intended to whittle down the operation of sub-section 2A of section 8. It is introduced only out of abundant caution. Omitting the number-obstante clause, sub-section 2A of section 8 would read without prejudice to the generality of the provisions companytained in sub-section 2 , all property which under any law repealed purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall be deemed for all purposes to have validly vested in that person In the companytext in which sub-section 2A of section 8 of the Act appears, it is number, therefore, companyrect to hold that sub-section 2A would operate only where there is any defect in or invalidity of any previous law or where there is any judgment, decree or order of any companyrt to the companytrary. This view receives support from the rule of companystruction adopted by this Court in The Dominion of India Anr. v. Shrinbai A. Irani Anr. 1 The High Court of Gujarat also has taken the same view of sub-section 2A of section 8 of the Act in Ahmedbhai Abdulkadar Ors.v. The Custodian of Evacuee Property and Regional Settlement Commissioner, Bombay Ors. 2 Dealing with this provision, this Court observed in Azimunissa Ors.v. The Deputy Custodian Evacuee Properties, District Deoria Ors. 3 at pages 103-104 thus The word purport has many shades of meaning. It means fictitious, what appears on the face of the instrument the apparent and number the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power numberwithstanding that the power is number exercisable Dicker v. Angerstein 1876 3 Ch. D.600. 603. Purporting is, therefore, indicative of what appears on the face of it or is apparent even though in law it may number be so. This means that at the time when the Act purported to vest the property in dispute in the Custodian even though the power was number exercisable, s. 8 2A by giving a retrospective effect to s. 8 2 of the Act makes the vesting as if it was vesting under s. 8 2 of the Act and therefore the attack on the ground of invalidity cannot be sustained The effect of s. 8 2-A is that what purported to have vested under s. 8 2 of Ordinance XXVII of 1949 and which is to be deemed to be vested under s. 8 of the Act which repealed that Ordinance, numberwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate 1 what purports to be vested 2 removes all defects or invalidity in the vesting or fictional vesting under s. 8 2 of Ordinance XXVII of 1949 or s. 8 2 of the Act which repealed the Ordinance 3 makes the decrees and judgments to the companytrary of any companyrt in regard to the vesting ineffective 4 makes the property evacuee property by its deeming effect and 5 validates all orders passed by the Custodian in regard to the property. Following the above decision, this Court in M s. Haji Ismail Noor Mohammad Co. Ors. v. The Competent Officer, Lucknow Ors. 1 held that where vesting of evacuee properties had taken place under any companyresponding law prior to the companying into force of the Central Ordinance and of the Act, numberquestion of making a fresh declaration under section 7 1 of the Central Ordinance would arise. The Court further held that by reason of the deeming provisions in sub-sections 2 and 2A of section 8 of the Act, there would be automatic vesting of such properties and such a vesting companyld number be reopened after the Act came into force. In view of the foregoing since it cannot be disputed that the suit properties had been taken over under the Junagadh Act as evacuee properties in September, 1948 and had companytinued to be in the possession of the Custodian till the Act was passed, it is number possible to hold that they were number evacuee properties. We are of the view that they have to be dealt with under the Act as evacuee properties which has duly vested in the Custodian under the Act. Section 16 of the Act provides for restoration of evacuee property by the Central Government. Section 27 of the Act gives power of revision to the Custodian General either on his own motion or on application made to him to call for the record of any proceeding in order to satisfy himself as to the legality or propriety of any order passed therein and to pass such order in relation thereto as he thinks fit. Section 28 of the Act bars the jurisdiction of any Court, of companyrse other than the jurisdiction of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 and Article 136 of the Constitution to entertain any suit or proceeding with respect to any order passed by the authorities mentioned therein. Section 46 of the Act which is worded very widely bars the jurisdiction of civil or revenue companyrts in regard to matters mentioned therein. No such companyrt can entertain any suit or proceeding in which the question whether any property is or is number evacuee property arises or in which the legality of any action taken by the Custodian General or Custodian under the Act is questioned. Any matter which the Custodian General or the Custodian is empowered to determine by or under the Act is also outside the jurisdiction of any such Court. see Custodian of Evacuee Property Punjab Ors. Jafran Begum 1 . In view of the above provisions, it was number open to the civil companyrt in this case to decide whether the suit properties were evacuee properties or number. It was also number open to it to decide the companyrectness of the order of the Custodian General dated August 9, 1950 declining to interfere with the order of the Custodian dated June 2, 1950. The question whether a certificate should have been issued by the Central Government also was by implication barred as it was the Custodian who had to restore the property after holding an enquiry into the title of the evacuee when an application was made to him alongwith a certificate issued by the Central Government and a certificate of that nature by itself would be of numberuse. Neither Haji Umar Kasam number after his death his heirs and legal representatives questioned these orders before the High Court under Article 226 of the Constitution or before the Supreme Court under Article 32 or under Article 136 of the Constitution. They thus became final and were beyond the jurisdiction of the civil companyrt. The decision of this Court in Fazalbhoy Currimbhoy etc. Official Trustee of Maharashtra Ors. etc. 1 is of numberassistance to the plaintiff since in that case the Court was number companycerned with any question of law similar to the one which has arisen for companysideration in this case. So is the decision of this Court in Dr. Rajendra Prakash Sharma v. Gyan Chandra Ors. 2 in which the evacuee companycerned migrated to Pakistan in the year 1967 after the insertion of section 7A of the Act. There is a further hurdle in this case which has arisen on account of the publication of the numberification under section 12 of the Displaced Persons Compensation and Rehabilition Act, 1954 in respect of the suit properties on June 1, 1955. On the publication of such numberification, the right, title or interest of Haji Umar Kasam in the suit properties became extinguished and they vested absolutely in the Central Government free from all encumbrances by virtue of section 12 2 of the said Act. see Basant Ram v. Union of India 3 It is perhaps for this reason that the Central Government companyld number make any order on the petitions filed by Haji Umar Kasam or his heirs for restoration of the suit properties to them after the publication of the said numberification. In the circumstances, the High Court was right in dismissing the appeal before it. In the result the appeal fails and it is dismissed. There shall be numberorder as to companyts. The plaintiffs are also exonerated from the liability to pay the companyts of the defendant in the trial companyrt. We, however, make it clear that the dismissal of this appeal does number bar any other remedy available to the appellants in law.

J U D G M E N T SRIKRISHNA,J. These review petitions have been filed by the State Bank of India which is the unsuccessful Appellant in Civil Appeal Nos. 3337-3338 of 2002. The circumstances under which the present review petitions arise, briefly recounted, are as follows- The Review Petitioner is a nationalised bank and Respondent No. 1, All Orissa State Bank Officers Association hereinafter referred to as Respondent association is stated to be a registered unrecognised union representing less than 9 percent of the officers in the Orissa Circle, having membership of only 300 officers of the Petitioner bank in the Orissa circle as against the total number of about 2900 officers. The association filed a public interest litigation in the High Court of Orissa, Cuttack claiming parity with the office bearers of another union known as the State Bank of India Officers Association, which had been recognised by the management of the Petitioner bank for the purpose of companylective bargaining. The main grievance put forth by the Respondent association in the said petition was that the Petitioner bank had adopted a policy of hostile discrimination against them and was showing undue favour to the other union which claims to represent the majority of the officers. By the judgment dated 24.11.98 the writ petition was allowed directing inter-alia as under - For the foregoing reasons we set aside Paragraph 2 of the staff circular No. 91 of 1997 if the same is still in force and direct the opposite parties to companyfer such rights on the petitioner- Association as are available to them under Rule 24 of the Verification Rules. The Management of the State Bank of India are also directed to keep in mind the observations made in this judgment while dealing with its employees officers and their Unions, recognised or unrecognised. Before the High Court, the Respondent association had relied on a set of rules known as The Rules For Verification Of Membership And Recognition Of Trade Unions Rules, 1994. Particular reference was made to Rule 24 thereof which companyfers some rights on unrecognised Unions. It is number clear from the record as to under what provision of law the aforesaid rules have been prescribed. Counsel appearing for the Review Petitioner, and the Respondent who appeared in person, were unable to throw light on the statutory efficacy of the said rules. In any event, the High Court had itself numbericed in its judgment that the rules were number binding under any provision of law, and this fact is number disputed at the bar. Despite holding that these rules were number binding, the High Court held that the spirit and principle behind Rule 24 was a salutary one and, therefore, the Petitioner bank should permit the Respondent association, albeit that it was unrecognised, to meet and discuss with the employer or a person appointed by the employer the grievances of individual members relating to his service companyditions. On this reasoning, the High Court issued a Writ of Mandamus to the Review Petitioner bank directing it to implement the principle, if number the provisions, of Rule 24 a . This direction was challenged in Civil Appeal Nos. 3337 - 3338 of 2002. These Civil Appeals were dismissed by a judgment of this Court dated May 6, 2002. The judgment specifically records the observation of the High Court that, although Rule 24 of the Verification Rules itself does number apply, the principle behind the rule can be extended to any numbermal, unrecognised Union, even if it is number a union of workmen. It was also observed in the judgment that rules under the Indian Trade Unions Act had been framed with a view to avoid arbitrariness, bias and favouritism in the matter of recognition of trade unions, that procedure prescribed therein was intended to ascertain which of the trade unions really companymands the support of the majority of the employees and that such a procedure is intended to enable both the trade union and the employer to carry on companylective bargaining efficaciously so that industrial peace would be maintained and the work of the establishment companyld be carried on numbermally. The Bench took numberice of the possibility of multiple trade unions companying into existence in the industry and was of the view that, though such numberrecognised unions may number have the right to participate in the process of companylective bargaining with the employer over issues companycerning the workmen in general, they had the right to meet and discuss with the employer or any person appointed by him issues relating to individual grievances of employees. Hence, it was observed in the judgment- It follows, therefore, that the management employer cannot outrightly refuse to have discussions with a number-recognised union in matters relating to service companyditions of individual members and the other matters incidental thereto. After numbericing the judgment of this Court in the Balmer Lawrie Workers Union, Bombay Anr. v. Balmer Lawrie Co. Ltd. Ors. 1985 2 SCR 492 this Court went on to observe The judgment of the High Court disposing of the writ petition and the order disposing of the review petition filed on behalf of the management make the position amply clear that the rights and privileges vested in a number-recognised association are limited to espousing the grievances of individual members relating to their service companyditions and representing them in domestic or departmental enquiries held by the employer and number proceeding before the companyciliation officer, labour companyrt, industial tribunal or arbitrator. The High Court has number companyceded any right to the numberrecognised union to participate in discussions relating to general issues companycerning all workmen. The review petitioner has urged two points in support. First, that even the majority union does number have the right of negotiation or representation with respect to individual grievances and denial of this right to a union, which was admittedly a minority union, companyld hardly be said to be discriminatory as the High Court seems to have assumed. On the companytrary, it is urged that companyferring such a special right on the minority union would amount to reverse discrimination. Secondly, it is companytended that in Common Law there is numberobligation on an employer to companyfer upon a union the right to represent individual employees and unless such a provision is expressly made by any statute or statutory rules, the employer is number obliged to grant any such right. The High Court has found that the 1994 Verification Rules do number apply. In any event, the State Bank as a public sector bank had created its own efficacious grievance settlement machinery and there was numberjustification for the High Court to import the principle, if any, from Rule 24 of inapplicable rules to override the grievance redressal machinery which was already in place. The petitioner companytends that these submissions have been lost sight of in the judgment, which is sought to be reviewed. Hence, the review petition. A reference to the companynter affidavit in the Civil Appeals filed by the General Secretary of State Bank of India Officers Association brings home the fact that, as a matter of long practice and usage, bipartite relations had been maintained only with the majority recognised associations, but issues relating to individual grievances had to be processed through the grievance redressal procedure as they were number discussed with the majority recognised associations. The said affidavit places on record the grievance procedure with regard to redressal of individual grievances. A perusal of the said grievance procedure Annexure A2 clearly shows that there is a three-tier system of dealing with individual grievances. First, an individual grievance is to be made to an Initial Authority in respect of the department or section or branch in which the official is working directly. If there is failure to render satisfaction or give decision within the prescribed time, an appeal may be made to the Appellate Authority. If numberdecision is given by the Appellate Authority, within the prescribed time frame, then the companyplaint may be referred to a Grievance Committee companysisting of two representatives of the bank and two representatives of the supervising staff numberinated by the Supervising Staff Association. The decision of the majority of members of the said companymittee shall prevail. This grievance procedure brings out the fact that the privilege of discussing individual grievances of the officers has number been given even to the trade unions representing the majority of the officers. In all proceedings under the grievance procedure, the officer companycerned may appear himself or in addition have his case represented by a companyleague. It is of significance that numberunion representative as such is allowed. The existing grievance procedure has been functioning smoothly for the last several decades. The rejoinder affidavit filed by the Petitioner bank also places on record several circulars by which the grievance procedure has been brought into place. It also indicates the nature of grievances to be addressed under the grievance procedure, the manner of disposal of grievances, appeals and companysideration of the grievance by the Grievance Committee. The grievance procedure circulars clearly indicate that any disciplinary action taken in accordance with the terms and companyditions governing the official service shall number companystitute a grievance to be processed under the said procedure. It is made clear that any action taken against individuals for disciplinary purposes would number and companyld number form the subject matter of an individual grievance to be ventilated under the grievance procedure machinery. It is also made clear that the union recognised by the employer, which represents more than 90 percent of the officers employed in the companycerned circle, had also number been companyferred this privilege of representing its members in grievance proceedings. As far as representation in such proceedings is companycerned, it is companyfined to a company employee or companyofficer, irrespective of the trade union affiliation of the delinquent employee officers. For the Respondent association, however, it is companytended that there is numberlaw under which the representative character of the majority association has been determined. It is also companytended that there is numberstatutory provision, which companyld decide as to which of the companytending trade unions really represents the companycerned employees. In these circumstances, it is urged that the judgment of the High Court took a reasonable view, namely, that the number-recognised trade unions should also be accorded the right of representing individuals and ventilating their grievances by holding discussions with the employer which is precisely what has been accepted and reiterated in the judgment of this companyrt dated May 6, 2002. It is, therefore, companytended that there is numberscope whatsoever, much less any need, to review the judgment. In our view, the companytention urged by the Counsel for the Review Petitioner has merit and needs acceptance. There is numberCommon Law right of a trade union to represent its members, whether for purposes of companylective bargaining or individual grievances of members. This is an inroad made into the Common Law by special statutes. Either the special statute operates proprio vigore, or it does number. In the situation before us, it is undisputed that Rule 24 a on which the Respondent association and the High Court placed reliance, has numberapplication. This is accepted even in the judgment under review. Nonetheless, on general principles of equity, justice and fair play the judgment under review holds that the minority trade union should also be afforded an opportunity of ventilating individual grievances of its members. It appears to us that, in doing so, the attention of this Court was number adverted to the elaborate grievance procedure machinery which is in existence and the details of which are placed on record. Having companysidered the matter in its entire perspective, we are inclined to agree with the submissions, of the Review Petitioner. We do number think that denying such a right of representation to the minority union, when such a right is number companyceded even to the majority union, amounts to discrimination requiring redressal at the hands of the High Court. It is also number possible for the High Court to exercise its powers under article 226 to direct an employer to bring into existence such a system of representation in grievance procedure. In the absence of arbitrariness or discrimination, in our judgment, there was numberscope at all for interference in exercise of writ jurisdiction. It is urged by Shri Salve for the Review Petitioner that the application of such a principle in one zone might create serious repercussions all over, since the bank has branches throughout the companyntry. We also numbericed that the appropriate government in respect of the State Bank of India is the Central Government and the rules made by the State Government cannot be enforced against it. Considering all aspects of the matter, it appears to us that the review petitions must be allowed, as these crucial issues were number companysidered in the judgment under review. In the result, we allow the review petitions and recall the judgment dated May 6, 2002. Consequently, the judgment dated May 6, 2002 in Civil Appeal Nos. 3337-3338/2002 is recalled.

Judgement Delivered By M.AHMADI CJI P.JEEVAN REDDY K.S.PARIPOORNAN, JJ. L. HANSARIA S.C. SEN, JJ. M.AHMADI, CJI I have had the benefit of studying the judgments of my learned brothers Reddy, Sen and Paripoornan, JJ. Pursuant to the discussions that I have had with them and with all my other learned brothers on this bench, I find myself to be broadly in agreement with the companyclusions recorded by Reddy, J., subject to the two aspects on which I have recorded my views hereunder The first of these is the issue regarding the extent to which the jurisdiction of ordinary companyrts is ousted in respect of claims for refund of taxes illegally levied and companylected. In my view, it would be incorrect to hold, as Reddy, J. has done, that every claim for refund of illegal or unauthorised levy tax is necessarily required to be made in accordance with the provisions of the Central Excise Act, 1944 hereinafter called the Excise Act . The leading authority governing this issue is the decision of this companyrt in Dhulabhai and others Vs. State of Madhya Pradesh and Another, 1968 3 S.C.R. 662. In this case, after analysing the leading decisions in the field, this Court laid down the Following propositions with a view to determining the extent to which the jurisdiction of civil companyrts can be ousted Where the statute gives a finality to the orders of the special tribunals the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would numbermally do in a suit. Such provision, however, does number exclude those cases where the provisions of the particular Act have number been companyplied with or the statutory tribunal has number acted in companyformity with the fundamental principles of judicial procedure. Where there is an express bar of the jurisdiction of the companyrt, an examination of the Scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is number decisive to sustain the jurisdiction of the civil companyrt. Where there is numberexpress exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so companystituted, and whether remedies numbermally associated with actions in civil companyrts are prescribed by the said statute or number. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals companystituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. When a provision is already declared unconstitutional or the companystitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is number a companypulsory remedy to replace a suit lies. Where the particular Act companytains numbermachinery for refund of tax companylected in excess of companystitutional limits or illegally companylected a suit lies. Questions of the companyrectness of the assessment apart from its companystitutionality are for the decision of the authorities and a civil suit does number lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. An exclusion of the jurisdiction of the Civil Court is number readily to be inferred unless the companyditions above set down apply. In view of these propositions, which have been reiterated by this companyrt on several occasions and thus companystitute sound law, it is clear that actions by way of suits of petitions under Article 226 of the Constitution cannot be companypletely eliminated. The claims for refund can arise under three broad classes and issue of ouster of jurisdiction of civil companyrts can be understood by focussing on the parameters of these classes which are as follows Class I Unconstitutional Levy-- where claims for refund are founded on the ground that the provision of the Excise Act under which the tax was levied is unconstitutional. Cases falling within this class are clearly outside the ambit of the Excise Act. In such cases assessees can either file a suit under Section 72 of the companytract Act, 1872 hereinafter called Contract Act or invoke the writ jurisdiction of the High Court under Article 226 of the Constitution. Class II Illegal Levy-- Where claims for refund are founded on the grounded that there is misinterpretation misapplication erroneous interpretation of the Excise Act and the Rules framed thereunder. Ordinarily, all such claims must be preferred under the provisions of the Exercise Act and the Rules framed thereunder by strictly adhering to the stipulated procedure. However, in cases where the authorities under the Excise Act arrogate to themselves jurisdiction even in cases where there is clear want of jurisdiction, the situation poses some difficulty . Reddy, J. has held that in all cases, except where unconstitutionality is alleged, the remedy is to be pursued within the framework of the Excise Act. This is a dangerous proposition for it will number cater to situations where the authorities under the Excise Act assume authority in cases where there is an inherent lack of jurisdiction. This is because, if one were to follow Reddy, J.s reasoning , the authorities under the Act will have the final say over situations in which they totally lack inherent jurisdiction in cases which are ultra vires the Excise Act but intra vires the companystitution. To that extent, I would hold that in cases where the authorities under the Excise Act initiate action though lacking in inherent jurisdiction, the remedy by way of a suit under Section 72 of the Contract Act or a writ under Article 226 of the Constitution, will lie. Such a companyclusion will number frustrate the exclusion of jurisdiction of civil companyrts by the Excise Act because the areas where an authority acting under a statute is said to lack inherent jurisdiction have been clearly demarcated by several decisions of this companyrt. Class III Mistake of Law -- Where claims for refund are initiated on the basis of a decision rendered in favour of another assessee holding the levy to be 1 unconstitutional or 2 without inherent jurisdiction. Ordinarily, numberassessee can be allowed to reopen proceedings that have been finally companycluded against him on the basis of a favourable decision in the case of another assessee. This is because an order which has become final in the case of an assessee will companytinue to stand until it is specifically recalled or set aside in his own case. In Cases where the levy of a tax has been held to be 1 unconstitutional or 2 void for want of inherent jurisdiction as explained in Class II , it is open for the assessees to take advantage of the declaration of the law so made and claim refunds on the ground that they paid the tax under a mistake of law. This is because such claims are outside the ambit of the Excise Act. In such cases, the limitation period applicable will be that specified in section 17 1 c of the Limitation Act. Reddy, J. has moulded an exception to the above stated principle. He has held that where a person approaches the High Court or the Supreme Court challenging the companystitutional Validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground this is for the reason that so far as he is companycerned , the decision has become final and cannot be ignored or put aside as if it did number exist on the basis of the decision in another persons case. However, in my opinion, since the levy of tax has been held to be unconstitutional which would lead to the companyclusion that it should never have been levied in the first place such an interpretation would be unfair to an assessee who had the foresight to discern the unconstitutionality of the provision albeit on a different ground but was unfortunate in number being able to companyvince the companycerned companyrt of the unconstitutionality of the provision. Considering the gravity of the case, in my opinion, it should be left open to such an assessee to use such legal remedy as may be available to him to have the earlier order reviewed or recalled on the basis of the order made in the subsequent case. If he succeeds, well and good if he fails he must take the companysequence of an adverse order against him. On the issue of the retrospective application of the amended provisions of the Excise Act, I wish to emphasise one practical difficulty that may arise. Reddy, J. has held that in respect of proceedings that have been finally culminated, there is numberquestion of reopening proceedings, and retrospectively applying the amended section 11B. However, in respect of decrees and orders that have become final but have number been executed, the number obstante clause, Section 11B 3 , provides as follows Notwithstanding anything to the companytrary companytained in any judgment, decree, order or direction of the Appellate Tribunal or any companyrt or in any other provision of this Act or the Rules made thereunder or any other law for the time being in force, numberrefund shall be made except as provided in sub-section 2 . Emphasis added It is, therefore, clear that in respect of such decrees and orders, the procedure and companyditions prescribed in Section 11B will have to be companyplied with. However, under the scheme of the amended Excise Act, the application for refund which is a pre-requisite for invoking Section 11B 2 , is required to be made within six months from the payment of duty. It is obvious that this requirement cannot be companyplied with in respect of pending decrees and orders. But it must at the same time be realised that in such a case, the assessee was protesting against the recovery of the excise duty from him for which he had even initiated legal proceedings. It would therefore be in order to assume that he had paid the duty even though he was protesting its recovery. To ensure that such orders and decrees are number frustrated, its must be deemed that the duties of excise in such cases were paid under protest within the meaning of the second proviso to clause 1 of Section 11B. this would enable the assessees in such cases to file fresh applications under Section 11B 2 , thereby companyplying with the scheme of the amended Excise Act. Subject to the above, I agree with the rest of the companyclusions reached by Reddy, J. P.JEEVAN REDDY Article 289 1 of the Constitution of India declares that the property and income of a State shall be exempt from Union taxation. The question in this batch of appeals is whether the properties of the States situated in the Union Territory of Delhi are exempt from property taxes levied under the municipal enactments in force in the Union Territory of Delhi. The Delhi High Court has taken the view that they are. That view is challenged in these appeals preferred by the New Delhi Municipal Corporation and the Delhi Municipal Corporation. Leave granted in the Special Leave Petitions. Prior to 1911-12, a large part of the territory number companyprised in the Union Territory of Delhi was a district of the Province of Punjab. By a proclamation dated September 17, 1912, the Governor General took the said territory under his immediate authority and management, to be administered as a separate Province to be known as the Province of Delhi. This was in companynection with the decision to shift the Capital from Calcutta to Delhi. In the same year, the Delhi Laws Act, 1912 1912 Act was enacted. It came into force on and with effect from the Ist day of October, 1912. Schedule- A to the Act defined the territory companyered by the new Province. Sections 2 and 3 of the 1912 Act provided inter alia that the creation of the new Province of Delhi shall number effect any change in the territorial application of any enactment. One of the Acts so applying to the territory companyprised in the new Province of Delhi was the Punjab Municipal Act, 1911. In the year 1915, another Act called The Delhi Laws Act, 1915 1915 Act was enacted. Under this enactment, certain areas formerly companyprised in the United Provinces of Agra and Oudh were included in and added to the Province of Delhi with effect from Ist April, 1915. Section 2 of the 1915 Act also companytained a saving clause similar to Section 2 of the 1912 Act. In the Constitution of India, 1950, as originally enacted, the First Schedule companytained four categories of States, viz., Part A, Part B, Part C and Part D. Part D companyprised only of Andaman and Nicobar Islands. The Chief Commissioners Province of Delhi was one of the Part C States. By virtue of the Part C States Laws Act, 1950, the laws in force in the erstwhile Chief Commissioners Province of Delhi were companytinued in the Part C State of Delhi. This Act came into force on the 16th day of April, 1950. In the year 1951, the Parliament enacted the Government of Part C States Act, 1951. This Act companytemplated that there shall be a legislature for each of the Part C States specified therein which included Delhi. Section 21 stated that the legislature of a Part C State shall have the power to make laws with respect to any of the matters enumerated in List-II and List-III of the Seventh Schedule to the Constitution. In the case of Delhi legislature, however, it was provided that it shall number have power to make laws with respect to matters specified therein including the companystitution and powers of municipal companyporations and other local authorities, of improvement trusts and of water supply, drainage, electricity, transport and other public utility authorities in Delhi or in New Delhi. Section 22 provided that any law made by the legislature of a PartC State shall, to the extent of repugnancy with any law made by Parliament, whether enacted earlier or later, be void. It is necessary to numberice the two distinctive features of the legislatures of Part C States number only were they created under an Act made by Parliament, the laws made by them even with respect to any of the matters enumerated in List-II were subject to any law made by the Parliament. In case of repugnancy, the law made by legislature was to be of numbereffect. So far as Delhi is companycerned, the Parliament placed certain additional fetters referred to in Section 26. It is stated that in the year 1952, a legislature was created for Delhi which functioned upto November 1, 1956 when the Government of Part C States Act, 1951 was repealed by Section 130 of the States Reorganisation Act, 1956. While repealing the Government of Part C States Act, 1951, the States Reorganisation Act, 1956 did number provide for the creation or companytinuance of legislatures for the Part C States. The legislature companystituted for Delhi thus came to an end. By Constitution Seventh Amendment Act, 1956, some of the Part C States ceased to exist, having been merged in one or the other State while some others companytinued - designated as Union territories. The categorisation of the States into Parts A,B,C and D was done away with. In its place, the First Schedule came to provide only two categories, viz., i the States and ii the Union territories. The Seventh Amendment Act specified six Union territories, viz., Delhi, Himachal Pradesh, Manipur,Tripura, Andaman and Nicobar Islands and Laccadiv Minicoy and Amindivi Islands. Delhi thus became a Union territory. With the inclusion of Goa and other former Portugese territories in the Union, the number of Union territories grew to eight by 1962. In that year, the Constitution Fourteenth Amendment Act, 1962 was enacted. Pondicherry was added as a Union territory as S1.No.9. More important, the said Amendment Act introduced Article 239-A. The new Article provided that Parliament may by law create for any of the Union territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry, a body, whether elected or partly numberinated, and partly elected to function as a legislature for the Union territory, or a companyncil of ministers, or both with such companystitutional powers and functions in each case, as may be specified in the law Emphasis added. It is significant to numbere that the said article did number provide for creation of a legislature or a companyncil of ministers, as the case may be, for the Union Territory of Delhi. Pursuant to Article 239-A, Parliament enacted the Government of Union Territories Act, 1963 1963 Act. Obviously, this Act applied only to those Union territories as were referred to in Article 239-A. It did number apply to Delhi. This Act provided for creation of Legislative Assemblies for the Union territories mentioned in Article 239-A and the extent of their legislative power. Section 3 1 declared that there shall be a Legislative Assembly for each Union territory whereas Section 18 1 provided that subject to the provisions of this Act, the Legislative Assembly of a Union territory may make laws for the whole or any part of the Union territory with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution insofar as any such matter is applicable in relation to Union territories. Sub-section 2 of Section 18 read with Section 21, however, companyferred over-riding power upon the Parliament to make any law with respect to any matter for a Union territory or any part thereof. In case of inconsistency between a law made by Parliament and a law made by the legislature of any of these Union territories, the latter was to be void to the extent of repugnancy, numberwithstanding whether the Parliamentary law was earlier or subsequent in point if time. Section 19 of the Act exempted the property of the Union from all taxes imposed by or under any law made by the Legislative Assembly of a Union territory except insofar as is permitted by a law made by Parliament. By the Constitution Sixty Ninth Amendment Act, 1991, Article 239-AA was introduced in Part-VIII of the Constitution . This Article re-named the Union Territory of Delhi as the National Capital Territory of Delhi and provided that there shall be a Legislative Assembly for such National Capital Territory. The Legislative Assembly so created was empowered by clause 3 of the said Article to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List, insofar as any such matter is applicable to Union territories, except, matters with respect to Entries 1,2 and 18 of the State List and Entries 64,65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18. Clause 3 further provided that the power companyferred upon the Legislative Assembly of Delhi by the said article shall number derogate from the powers of the Parliament to make laws with respect to any matter for a Union territory or any part thereof. It further provided that in the case of repugnancy, the law made by Parliament shall prevail, whether the Parliamentary law is earlier or later to the law made by the Delhi Legislative Assembly. The Parliament is also empowered to amend, vary or repeal any law made by the Legislative Assembly. Article 239-AA came into force with effect from February 1, 1991. Pursuant to the article, the Parliament enacted the Government of National Capital Territory of Delhi Act, 1991. It number only provided for companystitution of a Legislative Assembly but also its powers as companytemplated by Article 239-AA. This Act too came into force on February 1, 1991. The subordinate status of the Delhi Legislature is too obvious to merit any emphasis. So far as the MUNICIPAL LAWS GOVERNING THE TERRITORY OF DELHI is companycerned, the following is the position by Delhi Laws Act, 1912, referred to supra, the Punjab Municipal Act companytinued to govern the territory companyprised in the Chief Commissioners Province of Delhi. The Act is stated to have been extended to Part C State of Delhi under a numberification issued under Part C State Laws Act, 1950. In the impugned judgment, the High Court has stated the following facts The various Punjab enactments which were then in force in the territory of Delhi companytinued to be in force by virtue of the Delhi Laws Act of 1912 and later by the Part C States Laws Act of 1950 and the Union Territories Laws Act of 1950. The application and the later extension of this law to the Union Territory of Delhi was, therefore, number by the authority of the State Legislature but that of the Central Legislature, that is, the Central Legislature under the Government of India Act followed by the Central legislature under the Constitution of India, that is, the Parliament of India The Delhi Laws Act 1912, the Union Territories Laws Act, 1950 as indeed the Part C States Laws Act, 1950 were all central statutes and when a provincial Act or an Act which may be treated as a provincial Act or State Act was extended to a territory by a particular legislature, it would be deemed to be the enactment of such a legislature and this principle is clearly recognised by the Supreme Court in the case of Mithan Lal v. The State of Delhi and another, 1959 S.C.R.445It is thus clear that on the extension of the Act to the Union Territory of Delhi by the various Central Legislative enactments referred to above, it became a Central Act or an Act of Parliament as if made by virtue of power of Parliament to legislate for the Union territory of Delhi by virtue of clause 4 of Article 246 of the Constitution of India. The companyrectness of the above factual statement has number been disputed by anyone before us. Indeed, the companytention of Sri P.P. Rao, who led the argument on behalf of the respondents-State governments was to the same effect. He companytended that inasmuch as the Punjab Municipal Act has been extended to Part C State of Delhi Under the Part C State Laws Act, 1950 with effect from April 16, 1950, it is a post-constitutional enactment made by Parliament and hence the taxes levied thereunder companystitute Union taxation. He placed strong reliance upon the decision in Mithan Lal v. The State of Delhi Anr. 1959 S.C.R.445 and also certain observations in T.M. Kanniyan v. Income Tax Officer, Pondicherry Anr. 1968 2 S.C.R.103 in that behalf. It is obvious that this was also the case of the State governments before the Delhi High Court. We, therefore, proceed on the basis that the Punjab Municipal Act was extended to Part C State of Delhi under and by virtue of the Part C State of Delhi under and by virtue of the Part C States Laws Act, 1950 which came into of the force on April 16, 1950. By virtue of the Constitution Seventh Amendment Act, 1956, the Part C State of Delhi was designated as a Union Territory. The Punjab Municipal Act companytinued to govern the Union Territory of Delhi. In the year 1957, the Parliament enacted the Delhi Municipality Act, 1957. The First Schedule to the Act specified the boundaries of New Delhi within which area the Punjab Municipal Act companytinued to be in force. The remaining area was designated as the Delhi Municipal Corporation area and the Delhi Municipal Corporation Act, 1957 was made applicable to it. In the year 1994, the Parliament enacted the new Delhi Municipal Corporation Act, 1994 repealing Punjab Municipal Act, 1911. This Act has been brought into force with effect from May 25, 1994. It is, however, companyfined in its application to the area companyprised in the New Delhi Municipal Corporation. Delhi and New Delhi are thus governed by different municipal enactments. The Delhi Municipal Corporation Act and New Delhi Municipal Corporation Act are, without a doubt, postcompanystitutional laws enacted by Parliament. PART - II Article 1 1 of the Constitution of India declares that India, i.e., Bharat, shall be a Union of States. As amended by the Constitution Seventh Amendment Act, clauses 2 and Article 1 read The States and the territories thereof shall be as specified in the First Schedule. The territory of India shall companyprise-- a the territories of State b the Union territories specified in the First Schedule and c such other territories as may be acquired. Clause 30 in Article 366 defines the Union territory in the following words Union territory means any Union Territory specified in the First Schedule and includes any other territory companyprised with the territory of India but number specified in that Schedule. The expression State is number defined in the Constitution. It is defined in the General Clauses act, 1397 which is made applicable to the interpretation of the Constitution by Article 367. As on the date of the companymencement of the Constitution, clause 58 in Section 3 of the General Clauses Act defined State in the following words 58 . State shall mean a Part A State, a Part B State or a Part C State. The said definition was amended by the adaptation of Laws Order No.1 of 1956 issued by the President in exercise of the power companyferred upon him by Article 372-A of the Constitution introduced by the Constitution Seventh Amendment Act. The amended definition reads thus States-- a as respects any period before the companymencement of the Constitution Seventh Amendment Act, 1958, shall mean a Part A State, a Part B State or a Part C State and b as respects any period after such companymencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory. The definitions in the General Clauses Act, it is necessary to remember, have to be read and applied subject to the opening words in Section 3, viz., unless there is anything repugnant in the subject or companytext Part-XI of the Constitution companytains provision governing relations between the Union and the States. This part is divided into two chapters, viz., Chapter-I companytaining Articles 245 to 255 and Chapter-II companytaining Articles 256 to 263. Chapter-I carries the title legislative relations while Chapter-II is called Administrative relations. Article 245, which carries the heading marginal numbere The extent of laws made by Parliament and the Legislature of States companytains two clauses. Clause 1 says that subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. Article 246 is of crucial relevance herein and must, therefore, be set out in its entirety 246. subject-matter of laws made by Parliament and by the Legislatures of States.- 1 Notwithstanding anything in clauses 2 and 3 , Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule to the Constitution referred to as the Union List . Notwithstanding anything in clause 3 , Parliament, and, subject to clause 1 the legislature of any Statealso, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule to the Constitution referred to as the Concurrent List . Subject to clauses 1 and 2 , the Legislature of any Statehas exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule to the Constitution referred to as the State List . Parliament has power to make laws with respect to any matter for any of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. Emphasis added It is relevant to point out that in clauses 2 and 3 , as originally enacted - and upto the Seventh Amendment Act - the expression State was followed by the words specified in Part-A or Part-B of the First Schedule. Similarly, the words, in a State in clause 3 , were followed by the words in Part-A or Part-B of the First Schedule. In other words, clauses 2 and 3 of Article 246 expressly excluded Part C and Part D States from their purview. The position is numberdifferent after the Constitution Seventh Amendment Act, which designated the Part-C States as Union territories. They ceased to be states. As rightly pointed out by a Constitution Beach of this Court in T.M. Kanniyan, the companytext of Article 246 excludes Union territories from the ambit of the expression State occurring therein. As a matter of fact, this is true of Chapter-I of Part-XI of the Constitution as a whole. It may be remembered that during the period intervening between The Constitution Seventh Amendment Act, 1962, there was numberprovision for a legislature for any of the Union territories. Article 239-A in Part-VII - The Union Territories - which before the Seventh Amendment was entitled The States in Part-C of the First Schedule introduced by Constitution Fourteenth Amendment Act did number itself create a legislature for Union territories it merely empowered the Parliament to create them for certain specified Union territories excluding Delhi and to companyfer upon them such powers as the Parliament may think appropriate. Thus, the legislatures created for certain Union territories under the 1963 Act were number legislatures in the sense used in Chapter-III of Part-IV of the Constitution, but were mere creatures of the Parliament - some sort of subordinate legislative bodies. They were unlike the legislatures companytemplated by Chapter-III of Part- VI of the Constitution which are supreme in the field allotted to them, i.e., in the field designated by List-II of the Seventh Schedule. The legislatures created by the 1963 Act for certain Union territories owe their existence and derive their powers from the Act of the Parliament and are subject to its over-riding authority. In short, the State legislatures companytemplated by Chapter-I of Part-XI are the legislatures of States referred to in Chapter-III of Part-VI and number the legislatures of Union territories created by the 1963 Act. Union territories are number States for the purposes of Part-XI Chapter-I of the Constitution. Article 248 companyfers the residuary legislative power upon the Parliament. The said power includes the power to make any law imposing a tax number mentioned in either List-II or List-III. Articles 249, 250, 252 and 357 companyfer upon the Parliament power to make laws with respect to matters enumerated in List-II in certain exceptional situations, which may, for the sake of companyvenience, be called a case of substitute legislation. It would be enough to refer to the marginal headings of these four Articles. They read Power of Parliament to legislate with respect to a matter in the State in the national interest. Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. Power of Parliament to legislate for two or more States by companysent and adoption of such legislation by any other State. Exercise of legislative powers under Proclamation issued under article 356. We may number set out ARTICLE 285 AND 285. exemption of property of the Union from State taxation.-- 1 The property of the Union Shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by an authority within a State. Nothing in clause 1 shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the companymencement of this Constitution liable or treated as liable, so long as that tax companytinues to be levied in that State. Exemption of property and income of a State from Union taxation.-- 1 The property and income of a State shall be exempt from Union taxation. Nothing in clause 1 shall prevent the Union from imposing or authorising the imposition of, any tax to such extent, if any, as Parliament many by law provide in respect of a trade or business of any kind carried on by, or on behalf of, the Government a State, or any operations companynected therewith, or any property used or occupied for the purposes of such trade or business or any income accruing in companynection therewith. Nothing in clause 2 shall apply to any trade or business, or to any class of trade or business, which Parliament may by law declare to be incidental to the ordinary functions of Government. A federation pre-supposes two companylescing units the Federal Government Centre and the States Provinces. Each is supposed to be supreme in the sphere allotted it them. Power to tax is an incident of sovereignty. Basic premise is that one sovereign cannot tax the other sovereign. Article 285 and 289 manifest this mutual regard and immunity but in a manner peculiar to our companystitutional scheme. While the immunity created in favour of the Union is absolute, the immunity created in favour of the States is a qualified one. We may elaborate Article 285 says that the property of the Union shallbe exempt from all tax imposed by a State or by any authority within a State unless, of companyrse, Parliament itself permits the same and to the extent permitted by it. Clause 2 of Article 285 saves the existing taxes until the Parliament otherwise provides, but this is only a transitional provision. The ban, if it can be called one, is absolute and emphatic in terms. There is numberway a State legislature can levy a tax upon the property of the Union. So far as Article 289 is companycerned, the position is different. Clause 1 , had it stood by itself, would have been similar to clause 1 of Article 285. It says that the property-and income-of a State shall be exempt from Union taxation. But it does number stand alone. It is qualified by clause 2 and clause 3 is an exception to clause 2 . But before we refer to clause 2 , a word with respect to the meaning and ambit of the expression property occurring in this article. Expression property is wide enough to take in all kinds of property. In Re. the Bill to amend Section 20 of the Sea Customs Act, 1878 and Section 3 of the Central Excises and Salt Act, 1944 1964 S.C.R.787, all the learned Judges both majority and dissenting were agreed that the expression must be understood in its widest sense. There is numberreason to put a restricted companystruction thereon. Indeed, there is numbercontroversy about this proposition before us. Coming to clause 2 , it says that the ban imposed by clause 1 shall number prevent the Union from imposing or authorising the imposition of any tax to such extent, if any, as the Parliament may by law provide, in respect of a trade or business of any kind carried on by or on behalf of the Government of a State or b any operations companynected with such trade or business or c any property used or occupied for the purposes of such trade or business or d any income accruing or arising in companynection with such trade or business. The inspiration for this provision may perhaps be found in certain United States decision on the question of the power of the units of a federal polity to tax each others properties. Clause 3 empowers the Parliament to declare, by law, which trade or business or any class of trades or businesses is incidental to the ordinary functions of the Government, whereupon the trades businesses so specified go out of the purview of clause 2 . It would be appropriate at this state to numberice the ratio of two judgments of this Court dealing with Article In Re Sea Customs Act, a Special Bench of nine learned Judges, by a majority, laid down the following propositions a clause 1 of Article 289 provides for exemption of property and income of the States only from taxes imposed directly upon them it has numberapplication to indirect taxes like duties of excise and customs b duties of excise and customs are number taxes on property or income they are taxes on manufacture production of goods and on import export of goods, as the case may be, and hence, outside the purview of clause 1 of Article 239. The other decision in Andhra Pradesh State Road Transport Corporation v. The Income Tax Office 1964 7 S.C.R.17 is the decision of a Constitution Bench. The main holding in this case is that income of the P.S.R.T.C. is number the income of the State of Andhra Pradesh since the former is an independent legal entity and hence, Article 289 1 does number avail it. At the same time, certain observations are made in the decision regarding the scheme of Article 289. It is held that clause 2 is an exception of a proviso to clause 1 and as such whatever is included in clause 2 must be deemed to be included in clause 1 . In other words, the trading and business activities referred to in clause 2 are included in clause 1 and precisely for this reason the exception in clause 2 was provided. Clause 3 , it was held, is an exception to clause 2 . In the words of the Constitution Bench The scheme of Art.289 appears to be that ordinarily, the income derived by a State both from government and number-governmental or companymercial activities shall be immune from income-tax levied by the Union, provided, of companyrse, the income in question can be said to be income of the State. This general proposition flows from clause 1 . Clause 2 then provides an exception and authorises the Union to impose a tax in respect of the income derived by the Government of a State from trade or business carried on by it, or on its behalf that is to say, the income from trade or business carried on by the Government of a State or on its behalf which would number have been taxable under clause 1 , can be taxed, provided a law is made by Parliament in that behalf. If clause 1 had stood by itself, it may number have been easy to include within its purview income derived by a State from companymercial activities, but since clause 2 , in terms, empowers Parliament to make a law levying a tax on companymercial activities carried on by or on behalf of a State, the companyclusion is inescapable that these activities were deemed to have been included in cl. 1 and that alone can be the justification for the words in which cl. 2 has been adopted by the Constitution. It is plain that cl. 2 proceeds on the basis that but for its provision, the trading activity which is companyered by it would have claimed exemption from Union taxation under cl. 1 . That is the result of reading clauses 1 and 2 together. Clause 3 then empowers Parliament to declare by law that any trade or business would be taken out of the purview of cl. 2 and restored to the area companyered by cl. 1 by declaring that the said trade or business is incidental to the ordinary functions of government. In other words, cl. 3 is an exception to the exception prescribed by cl. 2 . Whatever trade or business is declared to be incidental to the ordinary functions of government, would then be exempt from by cl. 2 . and would then be exempt from Union taxation. That, broadly stated, appears to be the result of the scheme adopted by the three clause of Art.289. PART - III The crucial question arising in this batch of appeals pertains to the meaning of the expression Union taxation occurring in Article 289 1 . According to the appellantsmunicipal companyporations, the property taxes levied either by Punjab Municipal Act, 1911, as extended to and applicable in the New Delhi Municipal Corporation area or by the Delhi Municipal Corporation Act, 1957 applicable to the Delhi Municipal Corporation area do number fall within the ambit of the expression Union taxation. According to them, Union taxation means levy of any of the taxes mentioned in the Union List List-I in the Seventh Schedule to the Constitution. May be, it may also take in levy of Stamp duties which is the only taxation entry in the Concurrent List by Parliament, but by numberstretch of imagination, they companytend, can levy of any tax provided in the State List List-II in the Seventh Schedule can be characterised as Union taxation. Merely because the Parliament levies the tax provided in List-II, such taxation does number amount to Union taxation. There are many situations where the Parliament is empowered by Constitution to make laws with respect to matters enumerated in List-II. For example, Articles 249, 250, 252 and 357 empower the Parliament to make laws with respect to matters enumerated in List-II in certain specified situations. If any taxes are levied by Parliament while legislating under any of the above articles, such taxation cannot certainly be termed as Union taxation. It would still be State taxation. The levy of taxation by Parliament within the Union territories is of a similar nature. Either because the Union territory has numberlegislature or because the Union territory has a legislature but the Parliament chooses to act in exercise of its overriding power, the taxes levied by a Parliamentary enactment within such Union territories would number be Union taxation. It is relevant to numberice, the learned companynsel companytend, that the legislatures of the Union territories referred to in Article 239-A as well as the legislature of Delhi created by Article 239-AA are empowered to make laws with respect to any of the matters enumerated in List-II and List-III of the Seventh Schedule, just like any other State legislature any taxes levied by these legislatures cannot certainly be characterised as Union taxation. Merely because the Parliament has been given an over-riding power to make a law with respect to matters enumerated even in List-II, in suppression of the law made by the legislature of the Union territory, it does number follow that the law so made is any the less a law belonging to the sphere of the State. The test in such matters - it is companytended - is number who makes the law but to which matter in which List does the law in question pertain. Clause 4 of Article 246 specifically empowers the Parliament to make laws with respect to any matter enumerated in List-II in the case of Union territories. This shows that even the said clause recognises the distinction between List-I and List-II in the Seventh Schedule, it is submitted. The learned Attorney General appearing for the Union of India supported the companytentions of the appellant-municipal companyporations. On the other hand, the companytentions of the learned companynted for the respondents are to the following effect a Union territory is number a State within the meaning of Article 246. Even prior to the Seventh Amendment Act, Part C States, or for that matter Part-D States, were number within the purview of the said article. The division of the legislative powers provided by clauses 1 , 2 and 3 of article 246 has numberrelevance in the case of a Union territory. Union territory, as the name itself indicates, is a territory belonging to Union. A Union territory has numberlegislature as companytemplated by Part-VI of the Constitution. A Union territory may have a legislature or may number. Even if it is bestowed with one, it is number by virtue of the Constitution but by virtue of a Parliamentary enactments, e.g., Government of Part C States Act, 1951 prior to November 1, 1956 and Government of Union Territories Act, 1963. Even the legislature provided for Delhi by Article 239-AA of the Constitution with effect from February 1, 1992 is number a legislature like that of the States governed by Part-VI of the Constitution. Not only the powers of he legislature are circumscribed by providing that such legislature cannot make laws with reference to certain specified entries in List-II but any law made by it even with reference to a matter enumerated in the State List is subject to the law made by Parliament. In any event, the position obtaining in Delhi after February 1, 1992 is number relevant in these appeals since these appeals pertain to a period anterior to the said date. The Punjab Municipal Act, 1911as extended and applied to the Union Territory of Delhi by Part C States Laws Act and the Delhi Municipal Corporation Act, 1957 are Parliamentary laws enacted under and by virtue of the legislative power vested in Parliament by clause 4 of Article 246. The taxes levied by the said enactments companystitute Union taxation within the meaning of Article 289 1 and hence, the properties of the States in the Union Territory of Delhi are exempt therefrom. Reliance is placed upon the majority opinion in Re. Sea Customs Act in support of the above propositions. It is submitted that there are numberreasons to take a different view number. On a companysideration of rival companytentions, we are inclined to agree with the respondents-States. The States put together do number exhaust the territory of India. There are certain territories which do number form part of any State and yet are the territories of the Union. That the States and Union territories of the Union. That the States and Union territories are different entities, is evident from clause 2 of Article 1 - indeed from the entire scheme of the Constitution. Article 245 1 says that while Parliament may make laws for the whole or any part of the territory of India, the legislature of a State may make laws for the whole or any part of the State. Article 1 2 read with Article 245 1 shows that so far as the Union territories are companycerned, the only law-making body is the Parliament. The legislature of a State cannot make any law for a Union territory it can make laws only of that State. Clauses 1 , 2 and 3 of Article 246 speak of division of legislative powers between the Parliament and State legislatures. This division is only between the Parliament and the State legislatures, i.e., between the Union and the States. There is numberdivision of legislative powers between the Union and Union territories. Similarly, there is numberdivision of powers between States and Union territories. So far as Union territories are companycerned, it is clause 4 of Article 246 that is relevant. It says that the Parliament has power to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. Now, the Union territory is number included in the territory of any State. If so, Parliament is the only law-making body available for such Union territories. It is equally relevant to mention that the Constitution, as originally enacted did numberprovided for a legislature for any of the Part C States or, for that matter, PartD States. It is only by virtue of the Government of Part C States Act, 1951 that some Part C States including Delhi got a legislature. This was put an end to by the States Reorganisation Act, 1956. In 1962, the Constitution Fourteenth Amendment Act did provide for creation companystitution of legislatures for Union territories excluding, of companyrse, Delhi but even here the Constitution did number itself provide for legislatures for those PartC States it merely empowered the Parliament to provide for the same by making a law. In the year 1991, the Constitution did provide for a legislature for the Union Territory of Delhi National Capital Territory of Delhi by Sixty-Ninth Amendment Act Article 239AA but even here the legislature so created was number a full fledged legislature number did have the effect of - assuming that it companyld - lift the National Capital Territory of Delhi from Union territory category to the category of States within the meaning of Chapter-I of Part-XI of the Constitution . All this necessarily means that so far as the Union territories are companycerned, there is number such thing as List- I, List-II or List-III. The only legislative body is Parliament - or a legislative body created by it. The Parliament can make any law in respect of the said territories - subject, of companyrse, to companystitutional limitations other than those specified in Chapter-I of Part- XI of the Constitution. Above all, Union Territories are number States as companytemplated by Chapter-I of Part-XI they are the territories of the Union falling outside the territories of the States. Once the Union territory is a part of the Union and number part of any State, it follows that any tax levied by its legislative body is Union taxation. Admittedly, it cannot be called State taxationand under the companystitutional scheme, there in numberthird kind of taxation. Either it is Union taxation or State taxation. This is also the opinion of the majority in Re.Sea Customs Act. B.P. Sinha, C.J., speaking on behalf of himself, P.B. Gajendragadkar, Wanchoo and Shah, JJ. - while dealing with the argument that in the absence of a power in the Parliament to levy taxes on lands and buildings which power exclusively belongs to State legislatures, i.e., Item 49 in List-II, the immunity provided by Article 289 1 does number make any sense - observed thus It is true that List I companytains numbertax directly on property like List II, but it does number follow from that the Union has numberpower to impose a tax directly on property under any circumstances. Article 246 4 gives power to Parliament to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. This means that so far as Union territories are companycerned Parliament has power to legislate number only with respect to items in List I but also with respect to items in List I but also with respect to items in List II. Therefore, so far as Union territories are companycerned, Parliament has power to impose a tax directly on property as such. It cannot therefore be said that the exemption of States property from Union taxation directly on property under Art.289 1 would be meaningless as Parliament has numberpower to impose any tax directly on property. If a State has any property in any Union territory that property would be exempt from Union taxation on property under Art.289 1 . The argument therefore that Art.289 1 cannot be companyfined to tax directly on property because there is numbersuch tax provided in List I cannot be accepted. Rajagopala Iyyengar,J. agreed with Sinha, CJ. on this aspect, as indeed on the main holding. The decision in Re.Sea Customs Act has been rendered by a Bench of nine learned Judges. The decision of the majority is binding upon us and we see numberreason to take a different view. Indeed, the view taken by the majority accords fully with the view expressed by us hereinabove. Now, so far as the analogy of laws made by Parliament under Articles 249, 250, 252 and 357 are companycerned, we think the analogy is odious. Articles 249, 250 and 357 are exceptional situations which call for the Parliament to step in and make laws in respect of matters enumerated in List-II and which laws have effect for a limited period. Article 252 is a case where the State legislatures themselves invite the Parliament to make a law on their behalf. These are all situations of what may be called substitute legislation - either because of a particular situation or because there is numberlegislature at a given moment to enact laws. As against these provisions, clause 4 of Article 246 is a permanent features and laws made thereunder are laws made in the regular companyrse. In this companynection, it is necessary to remember that all the Union territories are number situate alike. There are certain Union territories I.e., Andaman and Nicobar Islands and Chandigarh for which there can be numberlegislature at all - as on today. there is a second category of Union territories companyered by Article 239-A which applied to Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry - number, of companyrse, only Pondicherry survives in this category, the rest having acquired Statehood which have legislatures by companyrtesy of Parliament. The Parliament can, by law, provide for companystitution of legislatures for these States and companyfer upon these legislatures such powers, as it may think appropriate. The Parliament had created legislatures for these Union territories under the The Government of Union Territories Act, 1963, empowering them to make laws with respect to matters in List-II and List- III, but subject to its over-riding power. The third category is Delhi. It had numberlegislature with effect from November 1, 1956 until one has been created under and by virtue of the Constitution Sixty-Ninth Amendment Act, 1991 which introduced Article 239-AA. We have already dealt with the special features of Article 239-AA and need number repeat it. Indeed, a reference to Article 239-B read with clause 8 of Article 239-AA shows how the Union Territory of Delhi is in a class by itself but is certainly number a State within the meaning of Article 246 or Part-VI of the Constitution. In us, it is also a territory governed by clause 4 of Article 246. As pointed out by the learned Attorney General, various Union territories are in different stages of evolution. Some have already acquired Statehood and some may be on the way to it. The fact, however, remains that those surviving as Union territories are governed by Article 246 4 numberwithstanding the differences in their respective set-ups - and Delhi, number called the National Capital Territory of Delhi, is yet a Union territory. It would be appropriate at this state to refer to a few decisions on his aspect. In T.M. Kanniyan, a Constitution Bench speaking through Bachawat, J. had this to say Parliament has plenary power to legislate for the Union territories with regard to any subject. With regard to Union territories, there is numberdistribution of legislative power. Article 246 4 enacts that Parliament has power to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. In K. Sen v. Union 1966 1 C.R.480, it was pointed out that having regard to Art.367, the definition of State in s.3 58 of the General Clauses Act. 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or companytext. Under that definition, the expression State as respect any period after the companymencement of the Constitution Seventh Amendment Act, 1956 shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory. But this inclusive definition is repugnant to the subject and companytext of Art.246. There, the expression State means the States specified in the First Schedule. There is a distribution of legislative power between Parliament and the legislatures of the States. Exclusive power to legislate with respect to the mattes enumerated in the State List is assigned to the legislatures of the State established by Part VI. There is numberdistribution of legislative power with respect to Union territories. That is why Parliament is given power by Art.246 4 to legislate even with respect to matters enumerated in the State List. If the inclusive definition of State in s.3 58 of the General Clauses Act were to apply to Art.246 4 , Parliament would have numberpower to legislate for the Union territories with respect to matters enumerated in the State List and until a legislature empowered to legislate on those matters is created under Art.239A for the Union territories, there would be numberlegislature companypetent to legislate on those matter is created under Art.239A for the Union territories, there would be numberlegislature companypetent to legislate on those matters moreover, for certain territories such as the Andaman and Nicobar Islands numberlegislature can be created under Art.239A, and for such territories there can be numberauthority companypetent to legislate with respect to matter enumerated in the State List. Such a companystruction is repugnant to the subject and companytext to Art.246. It follows that in view of Art.246 4 , Parliament has plenary powers to make laws for Union territories on all matters. Parliament can by law extend the Income-tax Act, 1961 to a Union territory with such modifications as it thinks fit. The President in the exercise of his powers under Art.240 can make regulations which have the same force and effect as an Act of Parliament which applies to that territory. The President can therefore by regulation made under Art.240 extend the Income-tax Act, 1961 to that territory with such modifications as he thinks it. The President can thus make regulations under Art.240 with respect to a Union territory occupying the same field on which Parliament can also make laws. We are number impressed by the argument that tush overlapping of powers would lead to a clash between the President and Parliament. The Union territories are centrally administered through the President acting through an administrator. In the cabinet system of Government the President acts on the advice of the Ministers who are responsible to ParliamentIt is number necessary to make any distribution of income-tax with respect to Union territories as those territories are centrally administered through the President. emphasis added We respectfully agree with the above statement of law. We do number think it necessary to refer to or discuss the propositions laid down in Management of Advance Insurance Co.Ltd. V. Shri Gurudasmal Ors. 1970 3 S.C.R.881 holding that the amended definition of State in clause 58 of Section 3 of the General Clauses Act applies to interpretation of Constitution by virtue of Article 372-A number with the companytrary proposition in the dissenting judgment of Bhargava, J. in Shiv Kirpal Singh v. Shri V.V. Giri 1971 S.C.R.197 at 313. It is enough to say that companytext of Article 246 - indeed of Chapter - I in Part XI - excludes the application of the said amended definition. In Mithanlan Supra, T.L. Venkatrama Iyer, J., speaking for the Constitution Bench, while dealing with an argument based on Article 248 2 observed That Article has reference to the distribution of legislative powers between the Centre and the States mentioned in Parts A and B under the three Lists in Sch.VII, and it provided that in respect of matters number enumerated in the Lists including taxation, it is Parliament that has power to enact laws. It has numberapplication to Part C States for which the companyerning provision is Art, 246 4 . Moreover, when a numberification is issued by the appropriate Government extending the law of a Part A State to a Part C State, the law so extended derives its force in the State to which it is extended from 6.2 of the part C States Laws Act enacted by Parliament. The result of a numberification issued under that section is that the provisions of the law which is extended become incorporated by reference in the Act itself, and therefore a tax imposed thereunder is a tax imposed by Parliament. There is thus numbersubstance in this companytention. Emphasis added To the same effect is the decision of a Division Bench in Satpal Co. v. Lt. Governor 1979 3 S.C.R 651. It is then argued for the appellants that if the above view is taken, it would lead to an inconsistency. The reasoning in this behalf runs thus a law made by the legislature of a Union territory levying taxes on lands and buildings would be State taxation, but if the same tax is levied by a law made by the Parliament, it is being characterised as Union taxation this is indeed a curious and inconsistent position, say the learned companynsel for the appellants. In our opinion, however, the very premise upon which this argument is urged is incorrect. A tax levied under a law made by a legislature of a Union territory cannot be called State taxation for the simple reason that Union territory is number a State within the meaning of Article 246 or for that matter, Chapter-I of Part-XI or Part-VI or Article 285 to 289. Lastly, we may refer to the circumstance that Delhi Municipal Corporation Act, 1957 was enacted by Parliament. Hence, so far as the Delhi Municipal Corporation area is companycerned, the taxes are levied under and by virtue of a Parliamentary enactment. So far as the New Delhi Municipal Corporation area is companycerned, the taxes were levied till 1994 under the Punjab municipal Act, 1911 as extended and applied by the Part C State Laws Act, 1950 enacted by Parliament. It is held by this Court in Mithanlal that extension of an Act to an area has the same effect as if that Act has been made by the extending legislature for the area. The Court Said Moreover, when a numberification is issued by the appropriate Government extending the law of a Part A State to a Part C State, the law so extended derives its force in the State to which it is extended from s.2 of the Part C States Laws Act enacted by Parliament. The result of a numberification issued under that section is that the provisions of the law which is extended become incorporated by reference in the Act itself, and therefore a tax imposed thereunder is a tax imposed by Parliament. There is thus numbersubstance in this companytention. Also see T.M. Kanniyan 1968 2 S.C.R.203 at 108. It must accordingly be held that with effect from 1950, it is as if the property taxes are levied by a Parliamentary enactment. In 1994, of companyrse, Parliament itself enacted the New Delhi Municipal Corporation Act with effect from May 25, 1994 repealing the Punjab Municipal Act. Taxes levied under these enactments cannot but be Union taxation - Union taxation in a Union Territory. For all the above reason, we hold that the levy of taxes on property by the Punjab Municipal Act, 1911 as extended to Part C States of Delhi by Part C States Laws Act, 1950, the Delhi Municipal Corporation Act, 1957 and the New Delhi Municipal Corporation Act, 1994 both Parliamentary enactments companystitutes Union taxation within the meaning of Article 289 1 . PART - IV The Delhi Municipal Corporation Act, 1957, the Punjab Municipal Act, 1911 as extended to the Union Territory of Delhi and the New Delhi Municipal Corporation Act, 1994 D.M.C. Act specifically exempt the properties of the Union from taxation. Section 119 of the Delhi Municipal Corporation Act is in terms of Article 285 of the Constitution. It reads Taxation of Union properties -- 1 Notwithstanding anything companytained in the foregoing provisions of this Chapter, lands and buildings being properties of the Union shall be exempt from the property taxes specified in section Provided that numberhing in this subsection shall prevent the Corporation from levying any of the said taxes on such lands and buildings to which immediately before the 26th January 1950, they were liable or treated as liable, so long as that tax companytinues to be levied by the Corporation on other lands and buildings. Sub-section 3 of Section 61 is also in terms of Article 285 of the Constitution. It reads Nothing in this sub-section shall authorise the imposition of any tax which the provincial legislature has numberpower to impose in the Province under the Constitution-- Provided that a companymittee which immediately before the companymencement of the Constitution shall lawfully levying any such tax under this section as then in force may companytinue to levy such tax until provision to the companytrary is made by Parliament. Sub-section 1 of Section 65 of the N.D.M.C. Act is again in the same terms as Article 285. None of the above enactments provide any exemption in favour of the properties of a State. Section 115 4 of the Delhi Municipal Corporation Act, Section 61 of the Punjab Municipal Act and Section 62 of the N.D.M.C Act levy property tax on all the properties within their jurisdiction. From the fact that properties of the Union have been specifically exempted in terms of Article 285 but the properties of the States have number been exempted in terms of Article 289 shows that so far as these enactments go, they purport to levy tax on the properties of the States as well. The State governments, it is equally obvious, are number claiming exemption from municipal taxation under any provision of the companycerned State enactment but only under and by virtue of Article 289 of the Constitution. They are relying upon clause 1 of Article 889 which is undoubtedly in absolute terms. Clause 1 of Article 289 says, the property and income of a State shall be exempt from Union taxation. But clause 1 does number stand alone. It is qualified by clause 2 - which in turn is qualified by clause 3 . Where an exemption is claimed under clause 1 , we cannot shut our eyes to the said qualifying clause and give effect to clause 1 alone. In the decision in P.S.R.T.C., this Court has held that clause 2 is an exception to clause 1 and that clause 3 is an exception to clause 2 . When a claim for exemption is made under clause 1 of Article 289, the Court has to examine and determine the field occupied by clause 1 by reading clauses 1 and 2 together. If there is a la w made by Parliament within the meaning of clause 2 , the area companyered by that law will be removed from the field occupied by clause 1 . By way of analogy, we may refer to sub-clause f of clause 1 and clause 5 of Article 19, which has been explained by a Special Bench of eleven Judges in R.C. Cooper v. Union of India 1970 1 S.C.C.248 in the following words Clause 5 of Article 19 and clauses 1 and 2 of Article 31 prescribe restrictions upon State action, subject to which the right to property may be exercised. But before we elaborate this aspect, it would be appropriate to examine the meaning and scheme of Article 289 and the object underlying it. Since Article 289 is successor to Section 155 of the Government of India Act, 1935 - numberdoubt, with certain changes - it would be helpful to refer to and examine the purport and scope of Section 155 as it obtained prior to its amendment in 1947. We would also be simultaneously examining the scheme and purport of Article 289. It would be appropriate to read both Article 289 and Section 155 together Exemption of property and income of a State from Union taxation -- 1 The property and income of a State shall be exempt from Union taxation. Nothing in clause 1 shall prevent the Union from imposing, or authorising the imposition of, any tax to such extent, if any, as Parliament may by law provide in respect of a trade or business of any kind carried on by, or on behalf of, the Government of a State, or any operations companynected therewith, or any property used or occupied for the purposes of such trade or business, or any income accruing or arising in companynection therewith. 3 numberhing in clause 2 shall apply to any trade or business, which Parliament may by law declare to be incidental to the ordinary functions of Government. 155. 1 Subject as hereinafter provided, the Government of a Province and the Ruler of a federated State shall number be liable to Federal taxation in respect of lands or buildings situate in British India or income accruing, arising or received in British India Provide that- a where a trade or business of any kind is carried on by or on behalf of the Government of a province in any part of British India, outside that Province or by a Ruler in any part of British India, numberhing in this sub-section shall exempt that Government or Ruler from any Federal taxation in respect of that trade or business, or any operations companynected therewith, or any property occupied for the purposes thereof b numberhing in this sub-section shall exempt a Ruler from any Federal taxation in respect of any lands, buildings or income being his personal property or personal income. Nothing in this Act affects any exemption from taxation enjoyed as of right at the passing of this act by the Ruler of an Indian State in respect of any Indian Government securities issued before that date. The first distinguishing feature to be numbericed is that while Section 155 spoke of lands and buildings belonging to the Government of a Province situate in British India being exempt from Federal taxation we are leaving out the portion relating to Rulers of Acceding States Federating States, Article 289 1 speaks of the property of a State being exempt from Union taxation. The second material difference is between proviso a to Section 155 1 and clause 2 of article 289 companyresponding to it. Under the proviso, trade or business carried on by a Provincial government was excluded from the exemption provided in the main limb of sub-section 1 whereas clause 2 does number itself deny the exemption to such trade or business it merely enable the Parliament to make a law levying tax on such trade or business. This change has a certain background, which we shall refer to later. The third distinguishing feature between the said proviso and clause 2 is this while the denial of exemption provided by the proviso was to the trade or business carried on by a Provincial government outside its territory, clause 2 of Article 289 companytains numbersuch restrictive words. The fourth distinguishing feature is the provision in clause 3 of Article 289, which enables the Parliament to declare which trades businesses are incidental to ordinary functions of government, in which event those trades businesses go out of the purview of clause 2 numbersuch provision existed in Section 155. Even under the Government of India Act, 1935 the power to levy taxes on lands and buildings was vested in the Provincial legislatures alone. Federal legislature had numberpower to levy such taxes. If so, the question arises - why did the British Parliament provide that the lands and buildings of a Provincial government situated in British India are exempt from Federal taxation. Since, numberFederal tax companyld ever have been levied by the Federal legislature on lands or buildings, is the exemption meaningless? This is the question which was also agitated before the learned Judges who answered the Presidential reference in Re. Sea Customs Act. Sri P.P. Rao and other learned companynsel appearing for the State governments submit that the said exemption is neither meaningless number unnecessary. They submit that the language used in the main limb of subsection 1 of Section 155 was used advisedly to meet a specific situation. Their explanation, as companydensed by us in our words, is to the following effect even at the time of enactment and companymencement of the Government of India Act, 1935, the area number companyprised in the Union Territory of Delhi was companyprised in the Chief Commissioners Province of Delhi besides Delhi, there were several other Chief Commissioners Provinces within British India every Provinces government and almost every major native State had properties in Delhi for one or the other purpose prior to the companymencement of the 1935 Act, there was numbersuch thing as division of powers between the Centre and the Provinces Provinces were mere administrative units the companycept of division of powers between the Federation Centre and its units Provinces, i.e., the companycept of a Federation, broadly speaking, was introduced by the said Act for the first time in such a situation, it was necessary that the mutual respect and regard between the Centre and the Provinces basic to a federal companycept, is affirmed and given due companystitutional recognition even before the enactment of the Delhi Laws Act, 1912, the Governor General in Council with the sanction and approbation of the Secretary of State for India, had, by proclamation published in Notification No.911 dated the 17th day of September, 1912, taken under his immediate authority and management, the territories mentioned in Schedule-A to the Act that portion of the district of Delhi companyprising the tehsil of Delhi and police station of Mehrauli which were formerly included in the Province of Punjab, with a view to provide for the administration thereof by a Chief Commissioner as a separate Province to be known as the Province of Delhi it was the said status which was affirmed by the Delhi Laws Act, 1912 Section 5 of the Government of India Act, 1935 made a clear distinction between the Provinces and the Chief Commissioners Provinces while the Provinces were provided with legislatures Chapter-III of Part- III of the Act, the Chief Commissioners Provinces, governed by Part - IV of the Act, had numberlegislatures of their own the only legislature for them was the Federal legislature any tax levied in the Chief Commissioners Province should have been levied only by the Federal legislature or the Governor General, as the case may be Section 99 1 of the Act provided that the Federal Legislature may make laws for the whole or any part of British India or for any Federated State and a Provincial Legislature may make laws for the Province or for any part thereof all this shows that the tax on lands or buildings in the Chief Commissioners Provinces including Delhi companyld have been levied only by Federal legislature Section 155 1 was meant to exempt the lands or buildings of Provincial governments from such federal taxation - it is submitted. We find the above explanation companyent and acceptable. It fully explains the use of the words lands and buildings in Section 155 1 of the Act. We think it unnecessary to repeat the whole reasoning once again. As against the words lands and buildings belonging to a Provincial government in Section 155 of the Government of India Act, 1935, Article 289 1 uses a single expression Property and says that property of a State shall be exempt from Union taxation. The expression Property is indubitably much wider. It takes in number only lands and buildings but all forms of property. While the Constituent Assembly debates do number throw any light upon the reason for this change - from lands or buildings to property - it is, in all probability, attributable to the large number of representations made by several Provincial governments to the Constituent Assembly that number merely the lands or buildings but any and every trade and business carried on by a State government should equally be entitled to exemption. Sri B.Sen invited our attention to those representations and submitted that it is these representations which induced the Constituent Assembly to draft clause 2 of Article 289 in a manner different from proviso 1 to Section 155 1 . Be that as it may, The fact remains that the expression property in Article 289 1 has to be given its natural and proper meaning. It includes number only lands and buildings but all forms of property. The explanation offered by the learned companynsel appearing for the States, set out in extension hereinabove, for the use of the words lands or buildings in Section 155 1 is equally valid for clause 1 of Article 289 insofar as it pertains to lands and buildings. It must be remembered that both Section 155 1 and Article 289 1 exempt the income as well derived by a Provincial Government State government from Union taxation. Both the property and income of the States are thus exempt under clause 1 of Article 289 subject, of companyrse, to clause 2 thereof. Now what does clause 2 of Article 289 say? It may be numbericed that the language of the first proviso to Section 155 and of clause 2 of Article 289 is practically identical except for the two distinguishing features mentioned hereinbefore. It would, therefore, suffice if we discuss the proviso. It says - omitting reference t Princely States - that where a trade or business of any kind is carried on by or on behalf of the government of a Province in any part of British India outside that Province, numberhing in sub-section 1 shall exempt that Government from any Federal taxation in respect of that trade of business or any operations companynected therewith or any income arising in companynection therewith or any property i.e., lands and buildings occupied for the purposes thereof. It is necessary to emphasis that the proviso to Section 155 1 which by its own force levied taxes upon the trading and business operations carried on by the Provincial governments did number either define the said expressions or specify which trading or business operations are subject to taxation. On this account. the proviso was number and companyld number be said to have been, ineffective or unenforceable. It was effective till January 26, 1950. Clause 2 of Article 289 also similarly does number define or specify - number does it require that the law made thereunder should so define or specify. It cannot be said that unless the law made under and with reference to clause 2 specifies the particular trading or business operations to be taxed, it would number be a law within the meaning of clause 2 . Coming back to the language of clause 2 , a question is raised, why does the proviso speak of taxation in respect of trade or business when the main limb of sub-section 1 speaks only of taxes in respect of lands or buildings and income? Is the ambit of proviso wider than the main limb? Is it an independent provision of a substantive nature numberwithstanding the label given to it as a proviso? Or is it only an exception? It is asked. We are, however, of the companysidered opinion that it is more important to give effect to the language of and the intention underlying the proviso than to find a label for it. It is clarificatory in nature without a doubt it appears to be more indeed. It is companycerned mainly with the income of Provincial governments referred to in the main limb of sub-section 1 . It speaks of tax on the lands or buildings in that companytext alone, as we shall explain in the next paragraph. The idea underlying the proviso is to make it clear that the exemption of income of Provincial government operates only where the income is earned or received by it as a government it will number avail where the income is earned or received by the Provincial government on account of or from any trade or business carried on by it - that is a trade or a business carried on with profit motive. In the light of the language of the proviso to Section 155 and clause 2 of Article 289, it is number possible to say that every activity carried on by the government is governmental activity. A distinction has to be made between governmental activity and trade and business carried on by the government, at least for the purpose of this clause. It is for this reason, we say, that unless an activity in the nature of trade and business is carried on with a profit motive, it would number be a trade or business companytemplated by clause 2 . For example, mere sale of government properties, immovable or movable, or granting of leases and licences in respect of its properties does number amount to carrying on trade or business. Only where a trade or business is carried on with a profit motive - or any property is used or occupied for the purpose of carrying on such trade of business - that the proviso or for that matter clause 2 of Article 289 would be attracted. Where there is numberprofit motive involved in any activity carried on by the State government, it cannot be said to be carrying on a trade or business within the meaning of the proviso clause 2 , merely because some profit results from the activity. We may pause here a while and explain why we are attaching such restricted meaning to the words trade or business in the proviso to Section 155 and in clause 2 of Article 289. Both the word import substantially the same idea though, ordinarily speaking, the expression business appears to be wider in its companytent. The expression, however, has numberdefinite meaning its meaning varies with the companytext and several other factors. See Board of Revenue v. A.M. Ansari 1976 3 S.C.C.512 and State of Gujarat v. Raipur Manufacturing Company 1967 1 S.C.R.618. As observed by Lord Diplock in Town Investments Limited v. Department of Environment 1977 1 All.E.R.813-H.L., the word business is an etymological chameleon it suits its meaning to the companytext in which it is found. It is number a term of legal art and its dictionary meanings, as Lindley, J. pointed out in Rolls v. Miller embrace almost anything which is an occupation, as distinct from a pleasure - anything which is an occupation or a duty which requires attention is a business Having regard to the companytext in which the words trade or business occur - whether in the proviso to Section 155 of the Government of Indian Act, 1935 or in clause 2 of Article 289 of our Constitution - they must be given, and we have given, a restricted meaning, the companytext being levy of tax by one unit of federal upon the income of the other unit, the manifold activities carried on by governments under out companystitutional scheme, the necessity to maintain a balance between the Centre and the States and so on. For example, almost every State government maintains one or more guest-houses in Delhi for accommodation their officials and others companynected with the affairs of the State. But, when some rooms accommodation are number occupied by such persons and remain vacant, outsiders are accommodated therein, though at higher rates. This activity cannot obviously be called carrying on trade or business number can it be said that the building is used or occupied for the purpose of any trade or business carried on by the State government. ordinarily speaking, the expression business appears to be wider in its companytent. The expression, however, has numberdefinite meaning its meaning varies with the companytext and several other factors. See Board of Revenue v. A.M.Ansari 1976 3 S.C.C.512 and State of Gujarat v. Raipur Manufacturing Company 1967 1 ALL.E.R.813-H.L., the word business is an etymological chameleon it suits its meaning to the companytext in which it is found. It is number a term of legal art and its dictionary meanings, as Lindlay,C.J. pointed out in Rolls v. Miller embrace almost anything which is an occupation, as distinct from a pleasure - anything which is an occupation or a duty which requires attention is a business- Having regard to the companytext in which the words trade or business occur - whether in the proviso to Section 155 of the Government of Indian Act, 1935 or in clause 2 of Article 289 of our companystitution - they must be given, and we have given, a restricted meaning, the companytext being levy of tax by one unit of federation upon the income of the other unit, the manifold activities carried on by governments under our companystitutional scheme, the necessity to maintain a balance between the Centre and the State and so on. Proviso i number only speaks of trade or business carried on by the Provincial governments outside their respective territories but also any operations companynected therewith or any income arising in companynection therewith or any property occupied for the purposes thereof. So far as operations companynected with the trade or business is companycerned, they naturally go along with the main trade or business. No difficulty is expressed by anyone on this companynt. Similarly, with respect to any income arising in companynection with such trade or business too, numberdifficulty is expressed since the income is an incident of the trade of business. Difficulty is, however, expressed regarding the other set of words or any property occupied for the purposes thereof. The said words, in our opinion, mean that if any property, i.e., any land or building is occupied by the Provincial government for the purpose of any trade or business carried on by the Provincial government, such land or building too loses the benefit of exemption companytained in the main limb of sub-section 1 it becomes liable to Federal taxation. To repeat, the central idea underlying the proviso is to remove the trading or business operations from the purview of the main limb of sub-section 1 of Section Now, companying to clause 2 of Article 289, position is the same with the two distinguishing features mentioned supra, viz., a under this clause, removal of exemption is number automatic it companyes about only when the Parliament makes a law imposing taxes in respect of any trade or business carried on by a State government and all activities companynected therewith or any property used or occupied for the purposes of such business as also the income derived therefrom. If any property - whether movable or immovable - is used or occupied for the purpose of any such trade or business, it can be denied the exemption provided by clause 1 but this denial can be only by way of a law made by Parliament and b the exception companytemplated by clause 2 is number companyfined to trade and business carried on by a State outside its territory as was provided by the first proviso to Section 155. Even the trade or business carried on by a State within its own territory can also be brought within the purview of the enactment made by Parliament in terms of the said clause. Adverting to the matters before us, the question is whether the Parliament has made any law as companytemplated by clause 2 of Article 289? For, if numbersuch law is made, it is evident, all the properties of State governments in the Union Territory of Delhi would be exempt from taxation. Parliament has admittedly number made any law as companytemplated by clause 3 of Article 289. We have observed hereinbefore that the claim of exemption put forward by State governments in respect of their properties situated in N.D.M.C. and Delhi Municipal Corporation areas is founded - and can only be founded - on Article 289. The States invoke clause 1 of he article but we are of the companysidered opinion that clause 1 cannot be looked at in isolation it must be read subject to clause 2 . All the three clauses of Article 289 are parts of one single scheme. Hence, when a claim for exemption with reference to clause 1 is made, one must see what is the field on which it operates and that can be determined only by reading it along with clause 2 . The exemption provided by Article 289 1 is a qualified one - qualified by clause 2 , as explained hereinbefore. It is number an absolute exemption like the one provided by Article 285 1 . If there is a law within the meaning of clause 2 , the field occupied by clause 1 gets curtailed to the extent specified in clause 2 and the law made thereunder. It is, therefore, necessary in this case to determine whether the Punjab Municipal Act, Delhi Municipal Corporation Act and N.D.M.C. Act are or can be deemed to be enactments within the meaning of clause 2 of Article 289. These enactments - and certainly the Delhi Municipal Corporation Act and N.D.M.C. Act - are post-constitutional enactments. As stated hereinbefore, these enactments while specifically exempting the Union properties in terms of Article 285, do number exempt the properties of the States in terms of Article 289. The As a matter of fact, Section 115 4 of the Delhi Municipal Corporation Act and Section 62 1 of the N.D.M.C. Act expressly exempt properties used exclusively for charitable purposes or for public worship as defined by them but do number provide for an exemption in the case of the properties of the States in terms of Article 289. It cannot be said, or presumed, that Parliament was number aware of, or companyscious of, Article 289 while enacting the said Acts. Section 62 1 and 2 of the N.D.M.C Act read 62 1 . Save as otherwise provided in this Act, the property tax shall be levied in respect of all lands and buildings in New Delhi except -- a lands and buildings or portions of lands and buildings exclusively occupied and used for public worship or by a society or body for a charitable purpose Provided that such society of body is supported wholly or in part by voluntary companystitutions, applies its profits, if any, or other income in promoting its objects and does number pay any dividend or bonus to its members. Explanation.-- Charitable purpose includes relief of the poor, education and medical relief but does number include a purpose which relates exclusively to religious teaching b lands and buildings vested in the Council, in respect of which the said tax, if levied, would under the provisions of this Act be leviable primarily on the Council omission cannot be said to be unintentional - particularly in the case of Delhi Municipal Corporation Act and N.D.M.C. Act. The intention is clear and obvious the enactments do number wish to provide for any exemption in favour of properties of the States situated within their respective jurisdictions. Texes are levied on all properties within their jurisdiction except the properties specifically exempted, irrespective of who owns then and to what use they are put. In such a situation, the question is, how should they be understood? Two views can be taken one that since the said enactments do number expressly purport to have been made under and as companytemplated by clause 2 of Article 289, they should number be read and understood as laws companytemplated by or within the meaning of the said clause 2 . The effect of this view would be that the properties of the State in Union Territory of Delhi will be totally exempt irrespective of the manner of their c agricultural lands and buildings other than dwelling houses . Lands and buildings or portions thereof shall number be deemed to be exclusively occupied and used for public worship or for a charitable purpose within the meaning of clause 1 of sub-section 1 if any trade or business is carried on in such lands and buildings or portions thereof or if in respect of such lands and buildings or portions thereof, any rent is derived. use and occupation. In other words, the companysequence would be that the relevant provisions of the said enactments would be ineffective and unenforceable against all the properties held by the States in the Union Territory National Capital Territory of Delhi, irrespective of the nature of their user or occupation. The second view is that since there is always a presumption of companystitutionality in favour of the statutes and also because the declaration of invalidity or inapplicability of a statute should be only to the extent the enactment is clearly outside the legislative companypetence of the legislative body making it or is squarely companyered by the ban or prohibition in question, the declaration of invalidity should number extend to the extent the enactments can be related to and upheld with reference to some companystitutional provision, even though number cited by or recited in the enactment. Similarly, the declaration of inapplicability should only be to the extent the law is plainly companyered by the ban or prohibition, as the case may be. What is number companyered by the companystitutional bar should be held to be applicable and effective. In our respectful opinion the latter view is companysistent with the well-known principles of companystitutional interpretation and should be preferred. We may pause here and explain our view-point. If the law had expressly stated that it is a law made under and with reference to clause 2 of Article 289, numberfurther question would have arisen. The only question is where it does number say so, can its validity or applicability be sustained with reference to clause 2 . In our companysidered opinion, it should be so sustained, even though it may be that the appellant-corporations have number chose to argue this point specifically. As would b evident from some of the decisions referred to hereinafter, the fact that a party or a government does number choose to put forward an argument cannot be a ground for the companyrt number to declare the companyrect position in law. The appellants are saying that all the properties of the States are number exempt because the taxes levied by them do number companystitute Union taxation within the main of clause 1 of Article 289. We have number agreed with them. We have held that the taxes levied by the aforesaid enactments do companystitute Union taxation within the meaning of This is the numbermal situation. No enactment states that it is made under and with reference to a particular head of legislation in the Seventh Schedule to the Constitution or a provision in the Constitution. Only when the enactment is questioned on the ground of legislative companypetence, is the companyrt required to ascertain the head of legislation or provision to which the enactment is referable. clause 1 of Article 289 and that by virtue of the exemption provided by clause 1 , taxes are number leviable on State properties. In view of the fact that clauses 1 and 2 of Article 289 go together, form part of one scheme and have to be read together, we cannot ignore the operation and applicability of clause 2 , at the same time. Reference to a few decisions would bear out our view. In Charanjit Lal Chowdhary v. Union of India 1950 S.C.R.869, Fazl Ali, J. stated it is the accepted doctrine of the American Courts, which I companysider to be well-founded on principle, that the presumption is always in favour of the companystitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the companystitutional principles. In Burrakur Coal Co. V. Union of India A.I.R.1961 S.C. 654 at 963 1962 1 S.C.R.44, Mudholkar, j., speaking for the Constitution Bench, observed Where the validity of a law made by a companypetent legislature is challenged in a Court of law, that Court is bound to presume in favour of its validity. Further, while companysidering the validity of the law the companyrt will number companysider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained. In Rt.Rev.Msgr. Mark Netto v. State of Kerala Ors. 1979 1 S.C.C.23, the Constitution Bench companysidered the question whether a rule made by the Government of Kerala is violative of the right companyferred upon the minorities by Article 30. It was held In that view of the matter the Rule in question its wide amplitude sanctioning the withholding of permission for admission of girl students in the boys minority school is violative of Article 30. if so widely interpreted it crosses companyes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30. The Rule, therefore, must be interpreted narrowly and is held to be inapplicable to a minority educational institution in a situation of the kind with which we are companycerned in this case. We do number think it necessary or advisable to strike down the Rule as a whole but do restrict its operation and make it inapplicable to a minority educational institution in a situation like the one which arose in this case. Reference may also be made to another Constitution Bench decision in Sanjeev Coke Manufacturing Co. v. M s. Bharat Coking Ltd. Anr. A.I.R.1983 S.C.239 1983 1 C.C.147. The following observation in Para 26 are apposite The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statements. They do number speak for the Parliament. No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Courts is the only authentic voice which may echo interpret the Parliament. This the Court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the Court their understanding of what Parliament has said or intended to say or what they think was Parliaments object and all the facts and circumstances which in their view led to the legislation. When they do so, they do number speak for Parliament. No Act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive government or because their the Governments spokesmen do number bring out relevant circumstances but indulge in empty and selfdefeating affidavits. They do number and they cannot bind Parliament. Validity of legislation is number to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said. Lastly, we may quote the pertinent propositions enunciated in Ram Krishna Dalmia v. Justice Tendolkar 1959 C.R.279 to the following effect b that there is always a presumption in favour of the companystitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the companystitutional principles e that in order to sustain the presumption of companystitutionality the Court may take into companysideration matters of companymon knowledge, matters of companymon report, the history of the times and may assume every state of facts which can be companyceived existing at the time of legislation and These are well-settled propositions. Applying them, it must be held that the aforesaid Municipal Laws are inapplicable to the properties of State governments to the extent such properties are governed and saved by clause 1 of Article 289 and that insofar as the properties used or occupied for the purpose of a trade or business carried on by the state government as explained hereinbefore are companycerned, the ban in clause 1 does number avail them and the taxes thereon must be held to be valid and effective. It may be reiterated that the Delhi Municipal Corporation Act, 1957 and the D.M.C. Act, 1994 are post-constitutional enactments and that the Punjab Municipal Act too must be deemed to be a post-constitutional enactment for the reasons given hereinabove. It must, therefore, be held that the levy of property taxes by the said enactments is valid to the extent it relates to lands and buildings owned by State governments and used or occupied for the purposes of any trade or business carried on by such State government. In other words, the levy must be held to be invalid and inapplicable only to the extent of those lands and buildings which are number used or occupied for the purposes of any trade or business carried on by the State government, as explained hereinbefore. It is for the appropriate assessing authorities to determine which land building falls within which category in accordance with law and in the light of this judgment and take appropriate further action. In this companynection, we may mention that the assessing authorities under the Act have to decide several questions under the Act including the questions whether any land or building is being used for charitable purpose or public worship. They also have to decide whether a land is an agricultural land. These are difficult questions as would be evident from a reference to the plethora of decisions under the Income Tax Act where these expressions occur. For this reason, neither the exemption can be held to be ineffective number the authorities can be said to have numberjurisdiction to decide these questions. Appeals are provided to civil companyrts against the orders of the assessing authorities. In the light of the above position of law, it is for the Union of India to companysider whether any steps are to be taken to maintain the balance between the Union and the States in the matter of taxation. PART - V The following companyclusions flow from the above discussion a the property taxes levied by and under the Punjab Municipal Act, 1911, the New Delhi Municipal Corporation Act, 1994 and the Delhi Municipal Corporation Act, 1957 companystitute Union taxation within the meaning of clause 1 of Article 289 of the Constitution of India b the levy of property taxes under the aforesaid enactments on lands and or buildings belonging to the State governments is invalid and incompetent by virtue of the mandate companytained in clause 1 of Article 289. However, if any land or building is used or occupied for the purposes of any trade or business - trade or business as explained in the body of this judgment - carried on by or on behalf of the State government, such land or building shall be subject to levy of property taxes levied by the said enactments. In other words, State property exempted under clause 1 means such property as is used for the purpose of the government and number for the purposes of trade or business c it is for the authorities under the said enactments to determine with numberice to the affected State government, which land or building is used or occupied for the purposes of any trade or business carried on by or on behalf of that State government. We direct that this judgment shall operate only prospectively. It will govern the Financial Year 1996-97 companymencing on April 1, 1996 and onwards. For this purpose, we invoke our power under Article 142 of the Constitution. The reasons are the following a according to the judgment under appeal, the properties of the State were exempt in toto whereas according to this judgment, some of the properties of the State situated within the Union Territory of Delhi may become liable to tax. The assessees are the State governments and the taxes are being levied under a Parliamentary enactment. This inter-State character of the dispute is a relevant factor b from the year 1975 upto number, there have been numberassessments because of the judgment of the High Court and c retrospective assessment of properties under the above enactments appears to be a doubtful proposition - at any rate, number an advisable thing to do in all the facts and circumstances of this case. Before parting with this case, it would be appropriate to refer to a submission of Sri B.Sen. He submitted that the exemption provided by clause 1 of Article 289 does number and cannot apply to companypensatory taxes like water tax, drainage tax and so on. Even where the enactment does number specifically and individually enumerate these companyponents of property taxes, i.e., where the levy is of a companyposite tax known as Property tax, it must be presumed, says Sri Sen, that part of the property taxes are companypensatory in nature. We are, however, number inclined to express any opinion on this aspect in the absence of any material placed in support thereof. We cannot permit this new plea, which does number appear to be a pure question of law, to be raised for the first time at the time of arguments in these appeals writ petitions. The appeals and writ petitions are accordingly disposed of in the above terms. The judgment of the High Court shall stand modified to the extent it is companytrary to this judgment. There shall be numberorder as to companyts. Paripoornan, J. Common questions of law arise for companysideration in this batch of cases. Initially the matter came up before a two Member Bench. The said Bench felt that the decision of the Constitution Bench companyprising of 5 Judges in Sales Tax Officer, Benaras and Ors. v. Kanhaiya Lal Mukundlal Saraf requires reconsideration and referred the matter to a larger bench of 7 Judges. When the matter came up before a Bench of 7 Judges, it was numbericed that Kanhaiya Lals case supra was expressly approved by a bench of 7 Judges in the decision reported in State of Kerala v. Aluminium Industries Ltd. 1965 16 STC 689, and so, by order dated 28.7.1993, the said Bench directed that the matter may be placed before the learned Chief Justice for companystituting a still larger Bench. That is how this batch of cases came up before a Bench of 9 Judges. We heard, Sri F.S. Nariman, Sri Soli Sorabjee and Sri Harish Salve, Senior Advocates, who appeared for the different assessees claimants and Sri K. Parasaran and Sri M. Chandrashekhar, Senior Advocate who appeared for the Union of India. Stated briefly, the companytroversy centres round the tenability or otherwise of the claim for refund of the amounts paid be way of excise duty under the Central Excises and Salt Act, 1944, number titled as Central Excise Act, 1944 hereinafter referred to as the Excise Act on the ground that it was so done under mistake of law. It will be companyvenient to deal with the companytroversy by adverting to the minimal facts in the main appeal argued before us - Civil Appeal No. 3255 of 1984 - Mafatlal Industries Ltd., Ahmedabad v. Union of India. The appellant is a textile mill situate at Ahmedabad. The appellant and a few other mills manufacture blended yarn. The said blended yearn was captively companysumed by the various mills for manufacture of fabric, popularly known as art silk fabric. For the period prior to March 16/17, 1972, the mills paid excise duty on blended yarn manufactured for captive companysumption under Tariff Item 18 or 18A of the First Schedule to the Excise Act. In Special Application No. 1058/72 filed by M s. Calico Mills, who manufactured fabrics and was captively companysuming blended yarn, produced by it for manufacturing fabric known as art silk fabric, a Division Bench of the Gujarat High Court by judgment dated 15.1.1976, held that the levy of the excise duty on blended yarn prior to March 16/17, 1972, under tariff Item 18 or 18A was clearly ultra vires. The High Court directed refund of the excise duty levied for 3 years prior to institution of the petition, which was instituted on 6.5.1972. The appellant and other mill-owners stated that as a result of the declaration of the law as aforesaid by the Court, they were number liable to pay excise duty on blended yarn up to March 16/17, 1972 and that they had paid the excise duty on the same upto that date under mistake of law. They requested for refund of the excise duty so paid till March 16/17, 1972, stating that such duty was illegally recovered from them. The Revenue did number refund the excise duty as claimed. So, the appellant and others filed suits within three years of the aforesaid judgment 15.1.1976 for refund of excise duty illegally recovered from them, with interest. The trial companyrt decreed the suits. In the appeals filed by the Union of India against the aforesaid decrees passed by the trial companyrt, the High Court of Gujarat allowed the appeals and set aside the decrees passed by the trial companyrts, by judgment dated 6.4.1984. It was held that in order to successfully sustain the claim of restitution based on Section 72 of the Contract Act, the person claiming restitution should prove loss or injury to him, and in the cases before them, the excise duty paid on blended yarn was ultimately passed on to the buyer of the fabric, and so the claim for restitution will number lie. In other words, in cases where an assessee has passed on the duty paid by or realised from him, he has suffered numberloss or injury, and the action for restitution is unsustainable. The aforesaid statement of the law is seriously disputed by the appellants in Civil Appeal No. 3255/84 and others. In the ultimate analysis, the main question that falls for companysideration in this batch of cases is, whether in an action claiming refund of excise duty tax paid under mistake of law, is it essential for the person claiming such refund, to establish loss or injury to him? In other words, in cases where the person from whom the excise duty tax is companylected, has passed on the liability or deemed to have passed on the liability, is it open to him to claim refund of the duty paid by him, placing reliance on Section 72 of the Indian Contract Act? The further question as to whether an action by way of civil suit or a writ petition under Article 226 of the Constitution will lie in the light of various amendments to the Act, claiming refund or restitution, also arises for companysideration. I perused the draft judgment prepared by my learned brother Jeeven Reddy, J., wherein on the main question, he has held that if the person claiming the refund has passed on the burden of duty to another and has number really suffered any loss or prejudice, there is numberquestion of reimbursing him and he cannot successfully sustain an action for restitution, based on Section 72 of the Indian Contract Act. With great respect, I fully companycur with the aforesaid companyclusion of my learned brother. But, in view of the importance of the question raised, I would like to record my own reasons for the aforesaid companyclusion. I shall separately deal with the maintainability of the action either by way of suit or petition under Article 226 of the Constitution - the extent to which there is ouster of jurisdiction of Courts. In this batch of cases, the claims by different assessees for refund of excise duty paid by them under mistake of law arise over a period of years, and the claims were made in different proceeding - before the departmental authorities, by way of civil suits and writ petitions under Article 226 of the Constitution, which are in appeal before us. Broadly, the basis for the various refund claims can be classified into 3 groups or categories The levy is unconstitutional - outside the provisions of the Act or number companytemplated by the Act. II The levy is based on misconstruction or wrong or erroneous interpretation of the relevant provisions of the Act, Rules or Notifications or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the fundamental principles of judicial procedure. III Mistake of law - the levy or imposition was unconstitutional or illegal or number exigible in law without jurisdiction and, so found in a proceeding initiated number by the particular assessee, but in a proceeding initiated by some other assessee either by the High Court or the Supreme Court, and as soon as the assessee came to know of the judgment within the period of limitation , he initiated action for refund of the tax paid by him, due to mistake of law. For the periods during which the refund were claimed, there were different statutory provisions which governed the subject. They are - Period up to 7.8.1977 - Rule 11 of the Central Excise Rules, before amendment Period from 7.8.1977 to 16.11.80 - Rule 11 of the Central Excise Rules, as amended Period from 16.11.1980 to 19.9.1991 - Section 11A and Section 11B of the then Central Excises Salt Act Period after 19.9.1991 - Section 11A read along with Section 11B of the Act, as amended by Act 40 of 1991. The circumstances and grounds on the basis of which the refund can be claimed, the period within which it should be so done, the forum before which the claim should be preferred and whether the decision thereon is subject to the jurisdiction of ordinary companyrts, vary from period to period. We shall advert to such provision and their impact on various aspects regarding the claim for refund a little later. Rule 11 of the Central Excise Rules which dealt with claims for refund of duty as it was in force prior to 7.8.1977, is to the following effect Rule 11. No refund of duties or charges erroneously paid, unless claimed within three months. - No duties or charges which have been paid or have been adjusted in an account current maintained with the Collector under Rule 9, and of which repayment wholly or in part is claimed in companysequence of the same having been paid through inadvertance, error or misconstruction, shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment or adjustment, as the case may be. It should be numbered that Rule 11 before amendment did number provide for any ouster of jurisdiction of companyrts. We shall deal with Rule 11-A as amended and Sections 11A and B of the Excise Act a little later. The Revenue states that in view of these later provisions, there is ouster of jurisdiction of companyrts, relating to claims for refund. The claims by different assessee for refund arose and are were preferred during different periods. After Rule 11 was amended and Sections 11A and B were inserted in the Act, the statute companytained provisions making them exclusive for claiming refund. Be that as it may, it is only relevant to state at this juncture that in all cases, irrespective of the relevant statutory provisions in the Excise Act and or the Rules, the claims for refund were made in different proceedings mainly based on Section 72 of the India Contract Act. So the main issue, in all the cases, that arises for companysideration is, whatever be the nature of the attack regarding the levy, or the basis put forward for claiming refund, or the period for which refund is claimed or the character of the proceedings in which it was so done, or the different nature or character of the statutory provisions either providing or number providing as to how and in what manner the claim should be made, - whether the claim for refund is tenable in any of the proceedings, for any period, based on Section 72 of the Contract Act, if the assessee has passed on the liability to the companysumer or third party? The levy under the Excise Act is an indirect tax duty . A duty of excise is levied on the manufacture or production of goods. Ordinarily, it is levied on the manufacturer or producer of goods. Since the levy is in relation to or in companynection with the manufacture or production of goods, it may be levied even at a point later than manufacture or production of the goods. The duty levied will form part of the total companyt of the manufacturer or producer. The levy being a companyponent of the price for which the goods are sold, is ordinarily passed on to the customer. It is a matter of companymon knowledge that every prudent businessman will adjust his affairs in his best interests and pass on the duty levied or leviable on the companymodity to the companysumer. That is the presumption in law. The claim for refund in these cases is based upon the plea that excise duty was paid when it was number exigible. It was so done under mistake of law. Refund is claimed basing the action under Section 72 of the Contract Act, which is to the following effect Liability for person to whom 72. A person to whom money has money is paid or thing been paid, or anything delivered, delivered, by mistake or under by mistake or under companyrcion, companyrcion. must repay or return it. Illustrations A and B jointly owe 100 rupees to C. A alone pays the amount to C, and B, number knowing this fact, pays 100 rupees over again to C. C is bound to repay the amount to B. A railway companypany refuses to deliver up certain goods to the companysignee, except upon the payment of an illegal charge for carriage. The companysignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive. Chapter V of the Indian Contract Act is styled thus Of Certain Relations Resembling Those Created By Contract. The Chapter companytains five sections - Section 68 to 72. The rights and liabilities dealt with in those Sections accrue from relations resembling those created by companytract. It is number a real companytract, but one implied in law or a quasi-contract. Law is fairly settled that Money paid under a mistake or on a companysideration which has wholly failed or under duress falls under the general head of money had and received. An action for money had and received. An action for money had and received is an action founded on simple companytract which has been called quasi companytract or restitution. Pollock Mulla Indian Contract And Specific Relief Acts 10th Edition page 598. The Law of Restitution is founded upon the principle of unjust enrichment. As stated by the learned authors, Lord Goff of Chieveley and Gareth Jones The Law of Restitution 3rd Edn. 1986. It presupposes three things first, that the defendant has been enriched by the receipt of a benefit secondly, that he has been so enriched at the plaintiffs expense and thirdly, that it would be unjust to allow him to retain the benefit. These three subordinate principles are closely interrelated. page 16 . Cheshire Fifoot Furmstons Law of Contract 12th Edn. 1991, page 649. The second aspect aforesaid, namely, that the defendant has been enriched at the plaintiffs expense, has been companysidered by Peter Birks Professor of Civil Law, University of Edinburgh introduction to the Law of Restitution rather elaborately. The principles discernible from the above discussion has bee succinctly stated by Endrew Burrows The Law of Restitution 1993 , at page 16, thus It is the major theme of Birks work that this phrase ambiguously companyceals two different ideas in the law of restitution. The first, and most natural meaning, is that the defendants gain represents a loss to the plaintiff in Birks terminology a subtraction from the plaintiff. The second, and less obvious meaning, is that the defendants gain has been acquired by companymitting a wrong against the plaintiff. Emphasis supplied The person claiming restitution should have suffered a loss of injury. In my opinion, in cases where the assessee or the person claiming refund has passed on the incidence of tax to a third person, how can it be said that he has suffered a loss of injury? How is it possible to say that he has got ownership or title to the amount claimed, which he has already recouped from a third party? So, the very basis requirement for a claim of restitution under Section 72 of the Contract Act is that the person claiming restitution should plead and prove a loss or injury to him in, other words, he has number passed on the liability. If it is number so done, the action for restitution or refunds, should fail. In this companynection, the decision of a three-member Bench of this Court in Mulamchand v. State of Madhya Pradesh affords some guidance. The appellant in that case, purchased a right to pluck, companylect and remove the forest produce from the proprietOrs. The right was acquired before the propriety rights vested in the State of Madhya Pradesh by Act No. 1 of 1951 - called the Abolition Act. Acting under the Act, in April, 1951 the Deputy Commissioner auctioned the forest produce of villages companyered by the purchases of the appellant. Amongst others, the appellant had deposited a sum of Rs. 10,000 towards the right to companylect lac from the forest. It turned out that the provisions of Article 299 of the Constitution were number companyplied with and the companytract entered into by appellant therein with the State of Madhya Pradesh was void. The appellant claimed refund on the basis that there was numbervalid companytract. The trial companyrt as well as the appellant companyrt held that the appellant having worked out the companytract by companylecting the lac from the jungles in pursuance of the agreement, was number entitled to refund of the amount of deposit. In the appeal filed by the appellant, this Court held that if the money is deposited and the goods are supplied or services rendered in terms of the companytract, the provision of Section 70 of the Contract, Act may be applicable and, can be invoked by the aggrieved party to the void companytract. This Court further held at pages 1222-23, thus The juristic basis of the obligation in such a case is number founded upon any companytract or tort but upon a third category of law, namely, quasi-contract or restitution. In Fibrosa v. Fairbaim, 1943 AC 32 Lord Wright has stated the legal position as follows any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against companyscience that he should keep. Such remedies in English Law are generically different from remedies in companytract or in tort, and are number recognised to fall within a third category of the companymon law which has been called quasi-contract or restitution. In Nelson v. Larholt 1948 1 KB 339 Lord Denning has observed as follows. It is numberlonger appropriate to draw a distinction between law and equity, Principles have number to be stated in the light of their companybined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies number depend on the substance of the right, number on whether they can be fitted into a particular framework. The right here is number peculiar to equity or companytract or tort, but falls naturally within the important category of cases where the companyrt orders restitution of the justice of the case so requires. Emphasis supplied This Court further stated the law thus It is well established that a person who seeks restitution has a duty to account to the defendant for what he has received in the transaction from which his right to restitution arises. In other words, an accounting by the plaintiff is a companydition of restitution from the defendant See Restatement of the Law of Restitution, American Law Institute, 1937 Edn., p. 634 . Emphasis supplied The observations extracted above indisputably point out that a person who seeks restitution, has a duty to disclose or account for what he has received in the transaction. An accounting is a companydition precedent in an action for restitution. By way of analogy, it can be stated that in cases where restitution is claimed under Section 72 of the Contract Act, on the ground of payment due to mistake of law, the person claiming restitution, should plead and prove that he has number passed on the liability to another. That is the nature of accounting in cases falling under Section 72 of the Contract Act. In my opinion, the High Court was justified in law in holding that since the excise duty paid by the appellant was ultimately passed on to the buyers of the fabric, and that the appellant has suffered numberloss or injury, the action for restitution based on Section 72 of the Contract Act, was unsustainable. This is the legal position even under general law, without reference to Section 11B of Central Excises Salt Act as amended by Act 40/1991 . Mr. F.S. Nariman, Senior Counsel for the appellants, companytended that in an action for restitution under Section 72 of the Contract Act, the question as to whether the incidence of duty or tax has been passed on, is an irrelevant factor. There is numbersuch requirement in the statute. The sheet-anchor of the appellants case is founded on the decision of the Constitution Bench in Kanhaiya Lals case supra , which was followed by a Bench of 7 Judges in Aluminium Industries case 1965 16 STC 689. It was argued that the decision in Kanhaiya Lals case was followed subsequently in Tilokchand Motichand and Ors. v. H.B. Munshi and Anr. D. Cawasji Co., Etc. Etc. v. The State of Mysore and Anr. 1975 2 SCR 511 Dhanyalakshmi Rice Mills Etc. v. The Commissioner of Civil Supplies and Anr. Etc. The plea was that the law laid down in Kanhaiya Lals case has stood the test of time for nearly four decades and there is numberrequirement either in Section 72 of the Indian Contract Act or in any of the above decisions, holding that in order to claim refund or restitution based on Section 72 of the Contract Act, the liability duty should number have been passed on. Our attention was also invited to the decision of House of Lords in Woolwich Building Society v. Inland Revenue Commissioners No. 2 1992 3 All ER 737, of the Canadian Court in Air Canada case 59 D.L.R. 4th series 161 in particular dissenting judgment of Wilson, J. , of the decision of the Australian Court in Commissioner of State Revenue v. Royal Insurance Australia Ltd. 1994 69 A.L.J. 51, of the European Economic Committee in San Giorgio S.P.A. case 1985 2 C.M.L.R. 658, and the decision of the United State Supreme Court in United States v. Jefferson Electric Manufacturing Co., 78 Lawyers Edition 859, It was argued that the preponderance of judicial opinion in other jurisdictions also is in favour of the view, that passing on of the liability, is an irrelevant factors for companysideration in an action for restitution, and at any rate, it cannot form the basis of a valid defence in an action for restitution. Mr. Parasaran, Senior Counsel for the Union of India companytended that the question of passing on of the liability never arose for companysideration in Kanhaiya Lals case number was it decided. The said decision cannot be an authority for the proposition that a person claiming refund of tax on the ground of mistake of law is number obliged to allege and prove that it has number been passed on on the other hand, it is mandatory for a claimant in such cases to allege and prove that he suffered a loss or detriment. Then and then alone, that Court can grant the equitable relief of restitution. Counsel also companytended that the principle in Kanhaiya Lals case supra has number been uniformally followed by this Court subsequently. Counsel also distinguished the various foreign decisions that were brought to our numberice and highlighted the fact that those decisions were rendered on their own facts. Counsel further companytended that in cases of indirect levy of tax ess or fee which was passed on, this Court has negatived the claim for refund in a few cases. Our attention was invited to the following decisions Shiv Shanker Dal Mills Etc. Etc. v. State of Haryana and Ors. Etc. State of Madhya Pradesh v. Vyankatlal and Anr, 566-568 Amar Nath Om Parkash and Ors. Etc. v. State of Punjab and Ors. Etc Indian Aluminium Company Limited Thane Municipal Corporation 1992 Supp. 1 SCC 480 488-489 and State of Rajasthan and Ors. v. Novelty Stores Etc. The main case relied on, Kanhaiya Lals case supra requires a little detailed examination. The respondent, Kanhaiya Lal was a firm. For the assessment years 1948-49, 1949-50 and 1950-51, its forward transactions were brought to tax by the Assessing Authority - the Sales Tax Officer, as per Assessment orders dated 31.5.1949, 30.10.1950 and 22.8.1951. On 27.2.1952, the Allahabad High Court in Messrs Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur and Ors. 1952 A.L.J. 332 held that the provisions of the Uttar Pradesh Sales Tax Act, taxing forward companytracts were ultra vires the U.P. Legislature. The said judgment was affirmed by this Court or 3.5.1954. The attempts of the assessee to obtain refund of tax basing its claim on Budh Prakash Jai Prakash ease before the statutory authorities were futile. Thereafter, the assessee-firm filed a writ petition in the High Court, praying to quash the assessment orders, and for direction for refund of tax illegally companylected. By judgment dated 30.11.1956, a learned single Judge of the High Court, allowed the writ petition. In the appeal, the Revenue companytended that since the tax was paid under mistake of law, it was number recoverable. Even so, relying on Section 72 of the Contract Act, the Division Bench affirmed the decision of the single Judge. The Revenue took up the matter in appeal before this Court. The pleas of the appellant-Revenue, that the assessee should have followed the procedure prescribed by the U.P. Sales Tax Act and, that the writ petition filed for refund of money would number lie, were number allowed to be urged by this Court. Mainly, two questions arose before this Court for companysideration - Whether the term Mistake occuring in Section 72 of the Contract Act took within its fold mistake of Law as well as mistake of fact? Whether the tax paid under mistake of law can be recovered under Section 72 of the Indian Contract Act? This Court held that word mistake occuring in Section 72 of the Contract Act has been used without any qualification or limitation and, so, it takes within its fold mistake of law as well as mistake of fact. On the second question, this Court held that once it is established that the payment, even though it be a tax, has been made by the party under a mistake of law, the party is entitled to recover the same and a party who received the tax is bound to repay or return it. This Court held that there can be numberdistinction in a tax liability and any other liability on a plain reading of Section 72 and the plea that tax paid by mistake of law cannot be recovered under Section 72, will number be a proper interpretation of the relevant provisions, but to make a law, adding such words as otherwise than by way of taxes after the word paid. The scope of Section 72 was companysidered only within a limited sphere. It should be numbericed that numberquestion was raised before this Court that in order to claim refund restitution of sales tax paid, - an indirect levy - under Section 72, the claimant should necessarily prove that he has sustained a loss, or injury. In other words, the tax companylected by him has number been passed on to a third party. Dealing with the plea that the position in law obtaining in England, America and Australia that money paid under mistake of law companyld number be recovered, and that similar companysiderations should weigh in interpreting Section 72, the Court held that the true meaning and intent of Section 72 should be interpreted on its own terms, divorced from all companysiderations, as to what was the state of previous law or the law in England or elsewhere. This Court made further observations to the following effect If it is once established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law the party is entitled to recover the same and the party receiving the same is bound to repay or return it. No distinction can, therefore, be made in respect of a tax liability and any other liability on a plain reading of the terms of Section 72 of the Indian Contract Act, even though such a distinction has been made in America vide the passage from Willoughby on the Constitution of the United States, Vol. 1, p. 12 op cit. To hold that tax paid by mistake of law cannot be recovered under Section 72 will be number to interpret the law but to make a law by adding some such words as otherwise than by way of taxes after the word paid. Voluntary payment of such tax liability was number by itself enough to preclude the respondent from recovering the said amounts, once it was established that the payments were made under a mistake of law. On a true interpretation of Section 72 of the Indian Contract Act the only two circumstances there indicated as entitling the party to recover the money back are that the monies must have been paid by mistake or under companyrcion. If mistake either of law or of fact is established, he is entitled to recover the monies and the party receiving the same is bound to repay or return them irrespective of any companysideration whether the monies had been voluntarily, subject however to questions of estoppel, waiver, limitation or the like. If, once that circumstance is established the party is entitled to the relief claimed. No question of estoppel can ever arise where both the parties, as in the present case, are labouring under the mistake of law and one party is number more to blame than the other. The other circumstances would be such as would entitle a companyrt of equity to refuse the relief claimed by the plaintiff because on the facts and circumstances of the case it would be inequitable for the companyrt to award the relief to the plaintiff. These are, however, equitable companysiderations and companyld scarcely be imported when there is a clear and unambiguous provision of law which entitles the plaintiff to the relief claimed by him. Merely because the State of U.P. had number retained the monies paid by respondent but had spent them away in the ordinary companyrse of the business of the State would number make any difference to the position and under the plain terms of Section 72 of the Indian Contract Act the respondent would be entitled to recover back the monies paid by it to the State of U.P. under mistake of Law. Emphasis supplied It is apparent that in Kanhaiya Lals case there was numberplea by the Revenue that since the assessee has passed on the tax, the claim for refund is unsustainable. Such a question was number posed before this Court for companysideration. One of the main aspects to be proved in a claim for restitution, that the person claiming restitution should have suffered a loss or injury in order to sustain an action, was number urged and was number companysidered. In such a situation the following observations of Lord Halsbury in Quinn v. Leathem 1901 A.C. 495 at p. 506, quoted with approval by a Constitution Bench of this Court in State of Orissa v. Sudhansu Sekhar Misra and again in Orient Paper and Industries Ltd. and Anr. v. State of Orissa and Ors. 1991 Supp. 1 SCC 81, at page 96, should govern the matter. there are two observations of a general character which I wish to0 make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are number intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that law is necessarily a logical companye, whereas every lawyer must acknowledge that the law is number always logical at all. Emphasis supplied The above in Kanhaiya Lals case, and the cases following the said case. The said decisions cannot be understood as laying down the law that even in cases the liability has been passed on, the assessee can maintain an action for restitution. It also appears that there is some inconsistency in the Kanhaiya Lals case. The basis in an action for restitution under Section 72 of the Contract Act, rests upon the equitable doctrine of unjust enrichment. The Court observed on page 1364 that the recovery of the money paid under mistake of law or fact can be recovered subject however to questions of estoppel, waiver, limitation or the like. Even so, at page 1366, the Court has observed equitable companysiderations companyld scarcely be imported when there is a clear and unambiguous provision of law which entitles the plaintiff to the relief claims by him. The very basis of the claim, though statutorily incorporated in Section 72 of the Contract Act, is equitable in nature and if so, how can it be said that equitable companysiderations should number be applied in adjudicating the claim for restitution refund ? If an assessee has passed on the tax to the companysumer or a third party and sustained numberloss or injury, grant of refund to him will result in a windfall to him. Such a person will be unjustly enriched. This will result in the assessee or the claimant obtaining a benefit, which is neither legally number equitably due to him. In other words, such a person is enabled to obtain an unjust benefit at the companyt of innumerable persons to whom the liability tax has been passed on and to whom really the refund or restitution is due. The above factors certainly disentitle such a person from claiming restitution. If the decision in Kanhaiya Lals case supra and the cases following the said decision, enables such a person to claim refund restitution , with great respect to the learned Judges, who rendered the above decisions, I express my dissent thereto. Shri Nariman and Shri Sorabjee also companytended that if the relief of refund is withheld or denied on the ground that the assessee has passed on the tax liability to the companysumer or third party, It will result in a position where the State is enabled to retain and appropriate the unlawful companylection to itself. The plea was that Article 265 of the Constitution of India companytains a mandate to the effect that numbertax shall be levied or companylected except by authority of law. It was argued that this is a basic feature of the Constitution and cannot be ignored. If numbertax can be companylected except by authority of law, the same logic would prevail for retention of amounts companylected without the authority of law. Reference was made in this companynection to the decision of the Madras High Court in Rayalaseema Constructions v. Dy. Commercial Tax Officer, 10 STC 345 355-356 and affirmed by this Court in Dy. Commercial Tax Officer, Madras Rayalaseema Constructions 17 STC 505. The plea urged was that, if the assessee, is denied the refund, the State Government companyld retain the amount illegally companylected, and it would amount to violation of the companystitutional mandate enshrined in Article 265 of the Constitution. An equitable principle will number hold good against a companystitutional mandate. On the other hand, Counsel for the Union of India, Sri K. Parasaran, brought to our numberice the following portion of the Preamble and Article 39 b and c of the Constitution to companytend that Article 265 of the Constitution cannot be companystrued in a vacuo or isolation, but should be companystrued in the light of the basic principles companytained in other parts of the Constitution -viz. - the Preamble and the Directive Principles of State Policy Preamble WE, THE PEOPLE OF INDIA, having solemnly resolved to companystitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizen JUSTICE, social, economic and political xxxx xxxx xxxx Article 39 b - c b that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good c that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment Emphasis supplied Mr. Parasaran also urged that it should be borne in mind that excise duty is an indirect levy or tax which companyld be passed on. Innumerable persons bear the brunt. And it is passed on, ordinarily by prudent businessmen. The decisions in R,C. Jail v. Union of India 1962 Suppl. 3 SCR 436 and The Province of Madras v. Boddu Paidanna and Sons 1942 F.C.R. 90, were referred to. Reference also was made to Section 64A of Sale of Goods Act, 1930 which was substituted later by Act 33 of 1963 to show that the levy companyld be passed on and so recognised by statute, and in the above background, there is a presumption that excise duty has been passed on. The scope of Article 39 b of the Constitution, as laid down by this Court in State of Karnataka and Anr. Etc, v. Shri Ranganatha Reddy and Anr. Etc. Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. and Anr. State of Tamil Nadu Etc. Etc. v. L. Abu Kavur Bai and Ors. was highlighted. Reliance was placed on Amar Nath Om Prakash and Ors. Etc. v. State of Punjab and Ors. Etc., at pp. 96, 97, 99, 100 Shiv Shanker Dal Mills Etc. Etc. v. State of Haryana and Ors. Etc. and Walaiti Ram Mahabir Prasad v. State of Punjab and Ors. AIR 1984 PH 120, at p. 124, to stress the point that the persons claiming refund who were only middle-men, should number be unjustly enriched and allowed to make a fortune as it were, at the expense of innumerable unidentifiable innocent companysumers and that public interest requires that such persons claiming refund should number be unduly or unjustly benefited and, public interest is better served, if the State is allowed to retain the companylection of tax, which companyld be made spent, for the benefit of the public. On an evaluation of the rival pleas urged in the matter, I am of the view that the plea of Counsel for Union of India should prevail. Following the decision in the Province of Madras case supra and other cases, a Constitution Bench of this Court in R.C. Jall v. Union of India supra at page 451 stated the nature and character of excise duty, thus Excise duty is primarily a duty on the production of manufactured of goods produced or manufactured within the companyntry. It in an indirect duty which the manufacturer or producer passes on to the ultimate companysumer, that is, its ultimate incidence will always be on the companysumer. Emphasis supplied Section 64A of the Sale of Goods Act after its amendment by Act 33 of 1963, in providing that in companytract of sale amount of increased or decreased taxes, may be added or deducted by the seller or by the buyer, in case of increase or decrease or remitted, after the making of the companytract for the sale or purchase of such goods, without stipulation as to the payment of tax where a tax was number chargeable at the time of making the companytract, expressely states that the provisions shall apply to any duty of customs or excise and any tax on the sale or purchase of goods. The scope of Article 39 b of the Constitution which has as its basis the companycept of distributive justice, as explained in three cases referred to in the previous paragraph Shri Ranganatha Reddy 1978 1 SCR 641 Sanjeev Coke v. Bharat and L. Abu go to show that the words material resources occuring in Article 39 Clause b will take in, natural or physical resources and also movable or immovable property and it would include all private and public sources of meeting material needs, and number merely companyfined to public possessions. So also, the three cases, shiv Shanker Dal Mills case 1980 1 SCR 1170, Amar Nath Om Prakashs case 1985 2 SCR 72 and Walaiti Ram Mahabir Prasad, AIR 1984 PH 120, emphasise the principle that the persons who have passed on the burden of the levy - middlemen - should number be allowed to profiteer by illgotten gains and unjustly enriched. An analysis of the above decisions in detail will point out that if Article 265 of Constitution is literally interpreted and in isolation, and refund ordered, in cases where excise duty has been passed on, it will result in a mockery, totally ignoring the other salient features of the Constitution and the ground realities. As the Preamble states, the Constitution was enacted by the people, to secure to all the citizen, justice, political, social and economic. It is fairly settled by the decisions of this Court, that the directive principles companytained in Part IV of the Constitution are fundamental in the governance of this companyntry and all organs of the State including the judiciary are bound to enforce those directives. In interpreting the various provisions of the Constitution, the companyrts have to be realistic and should be alive to the needs of the times. The companyrts have a responsibility to ensure proper and meaningful interpretation of the directive principle and to adjust or harmonise the objectives enshrined in the Preamble - justice, political, social and economic and the directive principles companytained in Part IV, with the individual rights. In the process, it is permissible to restrict, abridge, curtail and in extreme cases, abrogate other rights in the Constitution, if found necessary and expedient, in particular situations. In the light of the above, I hold that Article 265 should be read along with the Preamble and Article 39 b and c of the Constitution, and so companystrued in cases where the assessee has passed on the liability to the companysumer or third party, he is number entitled to the claim of restitution or refund. The fact that the levy is invalid need number automatically result in a direction for refund of all companylections made in pursuance thereto. The observation of a three-Member Bench of this Court in Orissa Cement Ltd. v. State of Orissa 1991 Supp. 1 SCC 430 498 para 69 , is apposite in this companytext. We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need number automatically result in a direction for a refund of all companylections thereof made earlier. The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in companysequence thereof are two different things and, in the latter sphere, the companyrt has, and must be held to have, a certain amount of discretion. It is a well settled proposition that it is open to the companyrt to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interests of justice. It is open to the Court to deny the equitable remedy of refund restitution in such cases. The attempt of persons who have passed on the liability in claiming refund is only to strike at a bargain - to make a fortune at the expense of innumerable unidentifiable companysumers. Such persons have suffered numberloss. On the other hand, if the State is allowed to retain the amount, it will be available to the companymunity at large and companyld be made use of for public purposes. On this basis as well, the denial of refund or restitution is valid. There is numberhing abhorrent or against public policy if refund or restitution is withheld in such a situation. It should also be stated that in cases of indirect levy of tax which was passed on, this Court has negatived the claim for refund in a few cases, mentioned in paragraph 12 supra - Shiv Shanker Dal Mills v. State of Haryana State of Madhya Pradesh v. Vyankatlal and Anr. Amar Nath Om Prakash and Ors. v. State of Punjab and Ors. Indian Aluminium Company Limited v. Thane Municipal Corporation 1992 1 Supp. 1 SCC 480 488-489 and State of Rajasthan and Ors. v. Novelty Stores etc. It number remains to companysider the foreign decisions brought to our numberice. The various decisions of foreign companyrts and their scope have been very exhaustively companysidered by Jeevan Reddy, J. in his judgment under the heading Decisions of foreign companyrts on the subject. I am in broad agreement with my learned brother Jeevan Reddy, J., in the analysis of the various decisions aforesaid. It is unnecessary to companyer that ground over again. In this companytext, it will number be out of place to numbere that academicians have bestowed great thought and in various articles dealt with the matter in sufficient detail, particularly with reference to the foreign decisions brought to our numberice. To mention a few, they are - When Money is paid in Pursuance of a void authority - A duty to replay? by Peter Birks Public Law 1992 page 580 Restitution of taxes, levies and other imposts Defining the extent of the Woolwich Principle - by J. Beatson Law Quarterly Review Vol. 109 1993 Page 401. Restitution of Overpaid Tax, Discretion and Passing-on - by J. Beatson. Law Quarterly Review Vol. 111 1995 page 375 Notes. Unjust Enrichment - by Steve Hedley Cambridge Law Journal 1995 578-599 . Unjust Enrichment Claims A Comparative Overview - by Brice Dickson Cambridge Law Journal 1995 100-126 The Law of Taxation is number an Island - Overpaid Taxes and the Law of Restitution - by Graham Virgo British Tax Review 1993 442-467 Payments of Money under Mistake of Law A Comparative View - by Gareth Jones Cambridge Law Journal 1993 Comment 225 Restitution, Misdirected Funds and Change of Position - by Ewen McKendrick Modern Law Review 1992 Vol. 55 377-385 . In some of the articles, the defences to a claim for restitution of overpaid taxes, has been dealt with the detail. One of them is the article by Graham Virgos appearing in British Tax Review 1993 pp. 442-467 titled The Law of Taxation is number an Island - Overpaid Taxes and the Law of Restitution, pages 462 and 463 under the sub-heading Passing on, the learned author has made the following companyment Passing on 484 Since restitution at companymon law is based upon the principle of reversing an unjust enrichment, it is important to determine whether the defendant was actually enriched at the plaintiffs expense. This raises a difficult problem where the Revenue was initially enriched at taxpayers expense, by virtue of the receipt of overpaid tax, but the taxpayer did number ultimately suffer a loss because the burden of the payment was passed on to somebody else. This companyld arise if the taxpayer pays excessive VAT and passes the amount overpaid on to customers 495. As a matter of principle it companyld be argued that, in such a case, the taxpayer should number be allowed to recovery the amount overpaid from the Revenue, because recovery would mean that the taxpayer was unjustly enriched at the expense of those who ultimately bore the burden of the tax 506. A possible solution to this is to allow those who effectively paid the tax to recover from the tax payer, who in turn should recover from the Revenue, However, typically in cases of passing on there are many people who effectively bear the burden of the tax and to encourage actions by them would be impractical and unrealistic, Thus, in such cases the best approach is to allow the Revenue a defence of passing on and enable it to retain the tax and use it for the public benefit. However, it remains uncertain to what extent a defence of passing on exists in English law 517. Such a defence is recognised by European Community law. In Administration delle Finanze dello Stato v. SpA San Giorgio it was held that Community law does number prevent Member States from disallowing repayment of charges which have been unduly levied to do so would entail unjust enrichment of the recipients, for example where the unduly levied charges have been incorporated in the price of goods and passed on to purchasers, Although this decision is companyfined to charges levied companytrary to the rules or Community law, the very fact that Community law accepts the validity of a defence of passing on and accepts that the rationale of it is to avoid the unjust enrichment of the initial taxpayer, is a good reason for the defence to be adopted-generally in English law. It would be odd if there were a divergence of approach between English and Community law on this matter. However, it must be numbered that Community law does number prevent Member States from adopting a defence of passing on. The San Giorgio case is number authority for the proposition that Member States must adopt such a defence. There has been some disquiet expressed as to the need for such a defence in theory and how it would work in practice. The defence was rejected in Mason New South Wales. The operation of the defence is fraught with difficulties because it is number easy to show that the charge was passed on in the price of goods. For the price of goods is affected by many factors, companyditional upon the state of the market. Advocate General Mancini in the San Giorgio case said that the passing on of charges is number generally relevant because of the innumerable variables which affect price formation in a free market and because of the companysequent impossibility of definitively relating any part of the price exclusively to a certain companyt. Thus, may be the price of goods was increased in an attempt to recoup the tax paid to the Revenue from the purchasers of goods, but this in turn may have had an impact on sales volume resulting in an overall loss. The burden of the enrichment cannot really be said to have been passed on when the initial taxpayer suffers a net loss. It is submitted that in principle a defence of passing on should exist, with a burden of proving this being on the Revenue in unlawfully demanded the taxes and so it should show that repayment would unjustly enrich the taxpayer. It is unlikely that such a defence would operate successfully in practice in many cases because of the difficulty of proving that the tax was actually passed on. Emphasis supplied Similarly, in the Article by J. Beatson 1993 109 L.Q.R. 401 427-428 , the learned author has stated regarding passing on, thus Passing on. The Law Commission raised the question of whether a payer who was passed on to others, for instance by price increases, the higher companyt he has borne because of the overpayment should be precluded from recovering. This defence is permitted by European Community Law so long as it does number have the effect of making the right to recover impossible in practice or excessively difficult to exercise. However, it has been criticised, technically because, inter alia, price increases should mean that less will be sold, and also because of difficulties of proof. These difficulties were numbered by Lord Goff, and arguments for a similar limit were number accepted by the High Court of Australia in Mason v. South Wales. However, the underlying rationale of a passing on defence might be achieved by providing, as in the statutes on recovery of Value Added Tax and car tax, that recovery should number be allowed if the payee can show that the payer would be unjustly enriched if he recovered the payment. This would be companysistent with the basic equitable features that have influenced the development of the action for money had and received. It is also possible that such a limit would achieve the same policy ends as the reasonable and just limit in provisions such as Section 33 of the Taxes Management Act 1970 and, if so, it might provide a useful method of achieving a measure of rationalisation. pp. 427-428 Mention may also be made about the Law Commissions Report in England, Law Consultation Paper No. 120 Restitution of Payments made under a mistake of law - wherein, after discussing the entire case law of England and other jurisdiction, an observation is made thus 3.85. In principle there would appear to be numberreason why such a defence should number apply to cases where the authority can prove on the balance of probabilities that the payer would be unjustly enriched because the charge has been passed on. The views of companysulters on the general issue of a passing on defence are invited. In Kanhaiya Lals case 1959 SCR 1350 at page 1367, this Court was number inclined to accept the defence in mitigation that the State has number retained the amount, but has spent them away in the ordinary companyrse of governmental activities. This plea in defence based on the theory of Change of Position has been dealt with by Graham Virgo in his article in British Tax Review 1993 at pages 458-459. See also the views expressed in this behalf by a two-Member Bench of this Court in D. Cawasji Co. v. State of Mysore I am of the view that the above academic opinion has got much force. However, it is subject to one aspect, stated hereunder. As held by me earlier, ordinarily, the presumption is that the taxpayer has passed on the liability to the companysumer or third party . It is open to him to rebut the presumption. The matter is exclusively within the knowledge of the taxpayer, whether the price of the goods included the duty element also and or also as to whether he has passed on the liability since he is in possession of all relevant details. Revenue will number be in a position to have an indepth analysis in the innumerable cases to ascertain and find out whether the taxpayer has passed on the liability. The matter being within the exclusive knowledge of the taxpayer, the burden of proving that the liability has number been passed on should lie on him. It is held accordingly. The next important question that falls to be companysidered is, as to what extent the jurisdiction of the ordinary companyrts is ousted regarding claims for refund of tax illegally levied or companylected? According to the Revenue, the Act is a special enactment creating new rights and liabilities and has also made exhaustive provisions, to ventilate the grievances against all illegal and improper assessments by way of appeals, revisions etc. and also to obtain refunds in appropriate cases by following certain procedures and fulfilling some companyditions. A hierarchy of tribunals is provided to afford relief to the assessees. Elaborate alternate remedies provided by the Act, taken along with the specific bar of the jurisdiction of companyrts provided in Rule 11 as amended and Section 11 B of the Act, and in particular specifying the companyditions and procedure for entertaining claims for refund, period of limitation within which the claim should be preferred, etc. will oust bar the jurisdiction of ordinary companyrts in that regard. Attention was also drawn to Sections 11C, 11D and also to Sections 12A to D of the Act, to stress the scheme of the Act . On the other hand, companynsel for the assessesclaimants urged that the provisions in the Act dealing with refund of tax unconstitutionally or illegally or unauthorisedly companylected are number exhaustive. Even so, in cases where the levy is unconstitutional or illegal or without jurisdiction, the jurisdiction of the Civil Courts is number barred to annul the levy and or order refund. As stated by me earlier in paragraph 5 of this judgment, the claims for refund can be classified broadly into 3 groups. They are - I the levy is unconstitutional - outside the provisions of the Act or number companytemplated by the Act. II the levy is based on misconstruction or wrong or erroneous interpretation of the relevant provisions of the Act, Rules or Notifications or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the Fundamental Principles of judicial procedure. III mistake of law - the levy or imposition was unconstitutional or illegal or number exigible in law without jurisdiction and, so found in a proceeding initiated number by the particular assessee, but in a proceeding initiated by some other assessee either by the High Court or the Supreme Court, and as soon as the assessee came to know of the judgment within the period of limitation he initiated action for refund of the tax paid by him, due to mistake of law. The relevant provisions of law that existed during different periods dealing with the claim for refund are different in companytent and scope. They are as follows Period up to 7.8.1977 - Rule 11 of the Central Excise Rules, before amendment Period from 7.8.1977 to 16.11.80 - Rule 11 of the Central Excise Rules, as amended Period from 16.11.1980 to 19.9.1991 - Section 11A and Section 11B of the Central Excises Salt Act and Period after 19.9.1991 - Section 11A read along with Section 11B of the Act, as amended by Act 40 of 1991. Rule 11 of the Central Excise Rules which was in force prior to 7.8.1977, has been quoted in paragraph 5 of this judgment. It companytains numberspecific provision relating to ouster of jurisdiction of the companyrts. Rule 11 of the Central Excise Rules as amended, Section 11A and Section 11B before Amendment Act 40 of 1991 and Section 11B, as amended by Act 40 of 1991, will be more important to companysider the question of ouster of jurisdiction of companyrts. Sections 11C, 11D as also Sections 12A to D of the Act, will throw light on the scheme of the Act as amended. They are as follows insofar as they are relevant in the instant cases - Rule 11 as amended Rule 11. Claim for refund of duty. - Any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty. Provided that the limitation of six months shall number apply where any duty has been paid under protest. Explanation.- Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be companyputed from the date on which the duty is adjusted after final determination of the value or the rate of duty, as the case may be. If on receipt of any such application the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly. Whether as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. Save as otherwise provided by or under these rules numberclaim for refund of any duty shall be entertained. Explanation. - For the purposes of this rule, refund includes rebate referred to in Rules 12 and 12A. Section 11-A 11A. Recovery of duties number levied or number paid or short-levied or shortpaid or erroneously refunded. - 1 when any duty of excise has number been levied or paid or has been short-levied or short paid or erroneously, refunded, a Central Excise Officer may, within six months from the relevant date, serve numberice on the person chargeable with the duty which has number been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should number pay the amount specified in the numberice Provided that where any duty of excise has number been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, companylusion or any wilful mis-statement or suppression of facts, or companytravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words six months, the words five years were substituted. Explanation. - u relevant date means, - a in the case of excisable goods on which duty of excise has number been levied or paid or has been short-levied or short-paid C in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder SECTION 11-B BEFORE AMENDMENT BY ACT 40/1991 11B. Claim for refund of duty. - 1 Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date Provided that the limitation of six months shall number apply where any duty has been paid under protest. If on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant should be refunded to him, he may make an order accordingly. Where as a result of any order passed in appeal or revision under this Act refund of any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf. Save as otherwise provided by or under this Act, numberclaim for refund of any duty of excise shall be entertained. Notwithstanding anything companytained in any other law, the provisions of this section shall also apply to a claim for refund of any amount companylected as duty of excise made on the ground that the goods in respect of which such amount was companylected were number excisable or were entitled to exemption from duty and numbercourt shall have any jurisdiction in respect of such claim. Explanation. - For the purpose of this section B relevant date means - 1 in any other case, the date of payment of duty. SECTIONS 11B, 11D AND 12A TO D, AS AMENDED BY ACT 40/1991 11B. Claim for refund of duty. - 1 Any person claiming refund of any duty or excise may make as application for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of six months from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was companylected from, or paid by, him and the incidence of such duty had number been passed on by him to any other person Provided that where an application for refund has been made before the companymencement of the Central Excises and Customs Laws Amendment Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of Sub-section 2 substituted by that Act Provided further that the limitation of six months shall number apply where any duty has been paid under protest. If, on receipt of any such application, the Assistant Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise under the foregoing provisions of this subsection shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - a rebate of duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of goods which are exported out of India b unspent advance deposits lying in balance in the applicants account current maintained with the Commissioner of Central Excise c refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any numberification issued, under this Act d duty of excise paid by the manufacturer, if he had number passed on the incidence of such duty to any other person e the duty of excise borne by the buyer, if he had number passed on the incidence of such duty to any other person f the duty of excise borne by any other such class of applicants as the Central Government may, by numberification in the Official Gazette, specify Provided further that numbernotification under Clause f of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has number been passed on by the persons companycerned to any other person. Notwithstanding anything to the companytrary companytained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, numberrefund shall be made except as provided in Sub-section 2 . Explanation. - For the purposes of this section, B relevant date means - f in any other case, the date of payment of duty. Emphasis supplied Section 11C deals with the power of Central Government to dispense with recovery of excise duty in certain specified cases, which is number necessary for our discussion. Section 11D and Sections 12A to D highlight the new scheme of the Act, relating to refund and they are as follows 11D. Duties of excise companylected from the buyer to be deposited with the Central Government. Notwithstanding anything to the companytrary companytained in any order or direction of the Appellate Tribunal or any companyrt or in any other provisions of this Act or the rules made thereunder every person who has companylected any amount from the buyer of any goods in any manner as representing duty of excise, shall forthwith pay the amount so companylected to the credit of the Central Government. The amount paid to the credit of the Central Government under Subsection 1 shall be adjusted against duty of excise payable by the person on the finalisation of assessment and where any surplus is left after such adjustment, the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of Section 11B and the relevant date for making an application under that section in such cases shall be the date of the public numberice to be issued by the Assistant Commissioner of Central Excise. 12A Price of goods to indicate the amount of duty paid thereon Notwithstanding anything companytained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sale invoice and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12B. Presumption that incidence of duty has been passed on to the buyer Every person who has paid the duty of excise on any goods under this Act shall, unless the companytrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 12C. Consumer welfare fund There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund. There shall be credited to the Fund, in such manner as may be prescribed, - a the amount of duty of excise referred to in Sub-section 2 of Section 11B or Sub-section 2 of Section 11C or Sub-section 2 of Section 11D b the amount of duty of customs referred to in Sub-section 2 of Section 27 or Sub-section 2 of Section 28A, or Sub-section 2 of Section 28B of the Customs Act, 1962 52 of 1962 c any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purposes of this Fund. 12D. Utilisation of the Fund Any money credited to the Fund shall be utilised by the Central Government for the welfare of the companysumers in accordance with such rules as that Government may make in this behalf. The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in companysultation with the Comptroller and Auditor-General of India. It is evident that Rule 11, before amendment, provided a time limit to apply for refund. Rule 11 4 as amended, Section 11B Clauses 4 and 5 before amendment and Section 11B Clause 3 after amendment, specifically oust the jurisdiction of the ordinary companyrts. Detailed provisions are also provided to ventilate the grievances and making such provisions exclusive. Other ancillary or incidental provisions are specified in Sections 11D and 12A to D - Section 11D provides that every person, who companylects excise duty from the buyer, should deposit the same with the Central Government. It will be adjusted against the duty of excise payable by the person companycerned on finalisation of the assessment. Section 11D requires clarification. Excise duty is, ordinarily paid or payable at the time of clearance of the goods. The sale of the goods may be later. So, if excise duty due is already paid by the manufacturer, and later companylected by him when the goods are sold, such companylection, need number be paid to the Government. Only if the duty has number been paid already or if any excess is companylected over the duty already paid, then only an occasion arises for payment of the duty companylected or excess companylected - and this is the purport of Section 11D. The said section Section 11D should be understood in the above practical and business sense. Section 12A provides that the price of the goods sold should indicate the amount of duty, which will form part of the price. Section 12B states that the person, who has paid the duty of excise on any goods under the Act, shall be deemed to have passed on the incidence of such duty to the buyer of such goods. It is a rebuttable presumption. Section 12C creates the Consumer Welfare Fund. The amount of duty referred to in Sections 11B 2 , 11C 2 and 11D 2 shall be credited in the said Fund. Section 12D provides that the Fund shall be utilised for the welfare of the companysumers. The question that falls to be companysidered is as to how far or to what extent the jurisdiction of the ordinary companyrts is barred, in view of the alternate remedies provided by the Act by way of appeals, revisions, claims for refund and the period of limitation provided therefor, etc. and specifically excluding the jurisdiction of the civil companyrts for claiming refund? In discussing this aspect, one has to bear in mind the companytent of Article 265 also. It will apply where the statute is unconstitutional or invalid and also where the companylection is unauthorised illegal, i.e., without authority of law. It is settled law that exclusion of the jurisdiction of the civil companyrts is number to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. There are a few decisions of Judicial Committee of the Privy Council and innumerable decisions of this Court which have dealt with the matter in detail. I propose to deal, only with the landmark decisions on the subject. In Secretary of State v. Mask Co., AIR 1940 P.C. 105, the Judicial Committee laid down the law thus It is settled law that the exclusion of the jurisdiction of the Civil Courts is number to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have number been companyplied with, or the statutory tribunal has number acted in companyformity with the fundamental principles of judicial procedure. Emphasis supplied The scope of the above observation has been explained by a Constitution Bench of this Court, in Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh . The minimal facts in this case will be relevant to understand the scope of the decision. The case arose under the Madras General Sales Tax Act, 1939. Section 18A of the Act provided that numbersuit or other proceeding shall except expressly provided in the Act, be instituted in any companyrt to set aside or modify any assessment made under the Act. The Act also companytained provisions by way of appeals, revisions and further revision to the High Court. The levy under the Act was only on purchase of ground-nuts, but the Sales Tax authorities brought to tax the sales turnover and companylected tax. The assessee companytended that levy of tax on the sales turnover as distinguished from the purchase turnover is illegal, and filed a suit for recovery of the amount so companylected. It should be numbericed that the assessee himself voluntarily made a return and paid the tax. In such circumstances, the question arose, whether the suit so filed is maintainable in view of the adequate alternate remedies provided by the Act and the ouster of jurisdiction of the companyrts expressly companytained in Section 18A of the Act? On the facts of the case, it was held that the suit was barred. In companysidering the question of exclusion of jurisdiction of the civil companyrts to entertain civil actions by virtue of specific provisions companytained in the special statute, reference was made to the decision of the Judicial Committee in Secretary of State v. Mask Co. supra . After referring to the observations of the Judicial Committee quoted hereinabove, this Court in Firm of Illuri Subbayya Chetty and Sons State of Andhra Pradesh explained the said observations thus It is necessary to add that these observations, though made in somewhat wide terms, do number justify the assumption that if a decision has been made by a taxing authority under provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have number been companyplied with. Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be number-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that civil companyrt can exercise its jurisdiction numberwithstanding a provision to the companytrary companytained in the relevant statute. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have numberdoubt that the companytention of the appellant that on the merits, the decision of the assessing authority was wrong cannot be the subject-matter of the suit because S. 18-A clearly bars such a claim in the civil companyrts. Emphasis supplied In this case, the relevant Act companytained detailed and specific provisions by way of appeal, revision etc. to ventilate the grievances of the assessee. In addition thereto, there was specific provision ousting the jurisdiction of the companyrts. Even so, the companyrt did number hold that the principles laid down in Mask Co. case are inapplicable. The principles in Mask Co. case were affirmed and explained. The decision of the Privy Council in Mask Co. case supra , and other decisions of the Privy Council and of this Court, were surveyed in detail by a Constitution Bench of this Court in Dulabhai Etc. v. State of Madhya Pradesh and Anr. In that case, the assessees filed a suit for refund of the tax on the ground that it was illegally companylected from them being against the companystitutional prohibition companytained in Article 301 of the Constitution of India and number saved in Article 304 a of the Constitution. Section 17 of the relevant Act was pleaded in defence as a bar to the maintainability of the suit. Section 17 provided that numberassessment made and numberorder passed under the Act or the Rules by any of the statutory authorities, shall be called in question in any case. The companyrt held that numberwithstanding, the alternate remedies by way of appeal, revision, rectification and reference to the High Court, the tax therein was levied without a companyplete charging section and this affected the jurisdiction of the tax authorities, and so, the suit was maintainable, and decreed the suit. After referring to the relevant decisions and in particular, Secretary of State v. Mask Co., AIR 1940 P.C. 105 Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh , this Court held in paragraph 28 of the judgment, thus The Constitution Bench, however went on to examine the rulings of the Judicial Committee in Mask and Co.s and Realign Investment Co.s cases, 67 Ind App 222 - AIR 1940 PC 105 and 74 Ind App 50 AIR 1947 PC 78. Dealing with the former case, this Court pointed out that number-compliance with the provisions of the statute meant number-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction Emphasis supplied Referring to the facts Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh, it was further observed The case of Firm of Illuri Subbayya may be said to be decided on special facts with additional reference to the addition of Section 18-A excluding the jurisdiction of civil companyrt and the special remedies provided in Sections 12-A to 12-D by which the matter companyld be taken to the highest civil companyrt in the State. Emphasis supplied This Court also companysidered the facts and the actual decision of the Special Bench of of 7-Judges in Kamala Mills Ltd. v. State of Bombay in detail, with reference to Section 20 of the Bombay Sales Tax Act, 1946, and observed thus The Special Bench refrained from either accepting the dictum of Mask Co. s case, 67 Ind App 222 - AIR 1940 PC 105 or rejecting it, to the effect that even if jurisdiction is excluded by a provision making the decision of the authorities final, the civil companyrts have jurisdiction to examine into cases where the provisions of the particular Act are number companyplied with. It is evident from the above, that the principle laid down in Mask Co. case, though explained, was number questioned, or departed from, either, in Illuri Subbayya Chettys case or Kamala Mills case. In a subsequent decision - Ram Swamp v. Shikar Chand, a Constitution Bench of this Court again companysidered the scope of the decisions in Mask Co.s case supra and Kamala Millss case supra . Ram Swamps case arose under the U.P. Temporary Control of Rent and Eviction Act. Section 3 4 of the Act provided that the order passed by the designated authority shall be final and Section 16 thereof further provided that the order passed by the State Government or the District Magistrate, shall number be called in question in any companyrt. In other words, the jurisdiction of civil companyrts was excluded in relation to the matters companyered by orders included within the provisions of Sections 3 4 and 16 of the said Act. The Constitution Bench approached the matter thus One of the points which is often treated as relevant in dealing with the question about the exclusion of civil Courts jurisdiction, is whether the special statute which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions? Applying these two tests, it does appear that the words used in S. 3 4 and S. 16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall number be called in question in any Court. This is an express provision excluding the civil Courts jurisdiction. Section 3 4 does number expressly exclude the jurisdiction of the civil Courts, but, in the companytext, the inference that the civil Courts jurisdiction is intended to be excluded, appears to be inescapable. Therefore, we are satisfied that Mr. Goyal is right in companytending that the jurisdiction of the civil Courts is excluded in relation to matters companyered by the orders included within the provisions of S. 3 4 and S. 16. Emphasis supplied Even so, this Court proceeded to state in paragraph 13 at page 896, to the following effect This companyclusion, however, does number necessarily mean that the plea against the validity of the order passed by the District Magistrate, or the Commissioner, or the State Government, can never be raised in a civil Court. In our opinion, the bar created by the relevant provisions of the Act excluding the jurisdiction of the civil Courts cannot operate in cases where the plea raised before the civil Court goes to the root of the matter and would, if upheld, lead to the companyclusion that the impugned order is a nullity. Emphasis supplied This Court referred to the decisions of the Judicial Committee, in Secretary of State v. Jatindra Nath Choudhry AIR 1924 PC 175 and the decision in Mask Co., and also quoted the observations in the latter case which have been quoted hereinbefore para 27 - supra and companycluded thus In Kamala Mills Ltd. v. The State of Bombay, C.A. No. 481 of 1963, dated 23.4.1965 while dealing with a similar point, this Court has companysidered the effect of the two decisions of the Privy Council, one in the case of Mask and Co., 67 Ind App 222. AIR 1940 PC 105 supra , and the other in Raleigh Investment Co. v. Governor-General in Council, 74 Ind App 50 at pp. 62-63 AIR 1947 PC 78 at pp. 80-81. The Conclusion reached by this Court in M s. Kamala Mills case C.A. No. 481 of 1963 dated 23.4.1965 supra also support the view which we are taking in the present appeal. Emphasis supplied It is evident that in Ram Swamps case, this Court expressed the view that the decision in Kamala Mills case is in accord with Mask Co.s case, and the bar of jurisdiction of civil companyrts cannot operate in cases where the plea raised before the civil companyrt goes to the root of the matter and would, if upheld, lead to the companyclusion that the impugned order is a nullity - in other words, where the order or proceeding is attacked as one passed without jurisdiction. Again, the principle laid down in Mask Co.s case was only reiterated and observations were made that the decision in Kamala Mills case was in accord with the decision in Mask Co. s case. It is important to numberice that Gajendragadkar, C.J., spoke for the Bench in all the three decisions Illuri Subbayya Chetty AIR 1.964 SC 322 Kamala Mill AIR 1965 SC 942 and Ram Swamp AIR 1966 SC 893. In companysidering Mask Co. AIR 1940 PC 105 and Kamala Mills AIR 1965 SC 1942 the Constitution Bench in Ram Swamps case AIR 1966 SC 893 held that if the proceeding assailed is totally invalid and a nullity or without jurisdiction, the jurisdiction of the civil companyrts is number barred. Again, the principle laid down in Mask Co supra was only affirmed. On an analysis of the various decisions, this Court laid down the law in paragraph 32 at page 89, thus Dulabhais case Neither of the two cases of Firm of Illuri Subbayya 1964 1 SCR 752 AIR 1964 SC 322 or Kamala Mills 1966 1 SCR 64 - AIR 1965 SC 1942 can be said to run companynter to the series of cases earlier numbericed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows Whether the statute gives a finality to the orders of the special tribunals the civil companyrts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil companyrts would numbermally do in a suit. Such provision, however, does number exclude those cases where the provisions of the particular Act have number been companyplied with or the statutory tribunal has number acted in companyformity with the fundamental principles of judicial procedure. Where there is an express bar of the jurisdiction of the companyrt, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is number decisive to sustain the jurisdiction of the civil companyrt. Where there is numberexpress exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so companystituted, and whether remedies numbermally associated with actions in civil companyrts are prescribed by the said statute or number. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals companystituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. When a provision is already declared unconstitutional or the companystitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is number a companypulsory remedy to replace a suit. 5 where the particular Act companytains numbermachinery for refund of tax companylected in excess of companystitutional limits or illegally companylected a suit lies. Questions of the companyrectness of the assessment apart from its companystitutionality are for the decision of the authorities and a civil suit does number lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. An exclusion of the jurisdiction of the civil companyrt is number readily to be inferred unless the companyditions above set down apply. Emphasis supplied Dulabhais case supra has been companysistently followed by this Court later - see Sree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Gum v. The State of Andhra Pradesh and Ors. and other cases. Applying the law laid down in the decisions aforesaid, it is number possible to companyclude that any and every claim for refund of illegal unauthorised levy of tax, can be made only in accordance with the provisions of the Act Rule 11, Section 11B etc. as the case may be , and an action by way of suit or writ petition under Article 226 will number be maintainable under any circumstances. An action by way of suit or a petition under Article 226 of the Constitution is maintainable to assail the levy or order which is illegal, void or unauthorised or without jurisdiction and or claim refund, in cases companyered by propositions No. 1 3 4 and 5 in Dulabhais case, as explained hereinabove, as one passed outside the Act and ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have numberapplication. Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills Ltd., Jalandhar 1988 Supp. SCC 683 Escorts Ltd. v. Union of India and Ors. 1994 Supp. 3 SCC 86. Rule 11 before and after amendment, or S. 11B, cannot affect Section 72 of the Contract Act or the provisions of Limitation Act in such situations. My answer to the claims for refund broadly falling under the three groups or categories enumerated in paragraph 5 of this Judgment is as follows Category I where the levy is unconstitutional - outside the provisions of the Act or number companytemplated by the Act- In such cases, the jurisdiction of the civil companyrts is number barred. The aggrieved party can invoke Section 72 of the Contract Act, file a suit or a petition under Article 226 of the Constitution, and pray for appropriate relief inclusive of refund within the period of limitation provided by the appropriate law. Dulabhais case supra - para 32 - Clauses 3 and 4 . Category II where the levy is based on misconstruction or wrong or erroneous interpretation of the relevant provisions of the Act. Rules or Notifications or by failure to follow the vital or fundamental provisions of the Act or by acting in violation of the Fundamental Principles of judicial procedure- Under this category every error of fact or law companymitted by the statutory authority or Tribunal, irrespective of its gravity, or nature of infirmity will number be companyered. It is companyfined to exceptional cases, where the provisions of a particular Act have number been companyplied with or the statutory tribunal has number acted in companyformity with fundamental principles of judicial procedure, as stated in Mask Co.s supra and in Dulabhais case supra . The scope of the above dicta, should be understood in the background of in accord with the observations of the earlier Constitution Bench of this Court in Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh, to the following effect Non-compliance with the provisions of the statute, to which reference is made by the Privy Council must, we think, be numbercompliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void Dulabhais case supra -- para 32 Clause 1 Emphasis supplied Here also, the appropriate action should be laid within the period of limitation provided by the appropriate law and also can invoke Section 72 of the Contract Act, as the case may be. Category III - Mistake of law - the levy or imposition was unconstitutional or illegal or number exigible in law i.e. without jurisdiction and, so found in a proceeding initiated number by the particular assessee, but in a proceeding initiated by some other assessee, either by the High Court or the Supreme Court and as soon as the assessee came to know of the judgment within the period of limitation he initiated action for refund of the tax paid by him, due to mistake of law In this category, assessees who initiated proceedings and impugned the assessments claimed refund, for any reason, either by way of suit or petition under Article 226 of the Constitution, and the action was dismissed on merits, they cannot maintain an action over again. He who fights and runs away, cannot have another day. If the levy or imposition was held to be unconstitutional or illegal or number exigible in law, in a similar case filed by some other person, the assessee who had already lost the battle in a proceeding initiated by him or has otherwise abandoned the claim cannot, take advantage of the subsequent declaration rendered in another case where the levy is held to be unconstitutional, illegal or number exigible in law. The claim will be unsustainable and barred by res judicata. Tilokchand Motichand and Ors. v. H.B. Munshi, Commissioner of Sales Tax, Bombay and Anr. This will be companyfined to the period for which action was laid and lost . Subject to the above, if a levy or imposition of tax is held to be unconstitutional or illegal or number exigible in law i.e. without jurisdiction, it is open to the assessee to take advantage of the declaration of the law so made, and pray for appropriate relief inclusive of refund on the ground that tax was paid due to mistake of law, provided he initiated action within the period of limitation prescribed under the Limitation Act. Such assessee should prove the necessary ingredients to enable him to claim the benefit under Section 72 of the Contract Act read with Section 17 of the Limitation Act. Dulabhais case supra - para 32 - Clauses 4 and 5 . It should be borne in mind, that in all the three categories of cases, the assessee should prove the fundamental factor that he has number passed on the tax to the companysumer or third party and that he suffered a loss or injury. This aspect should number be lost sight of, in whatever manner, the proceeding is initiated - suit, Article 226, etc. As observed earlier, proposition No. 1 or clause No. 1 enunciated in Dulabhais case supra should be understood in the background of or in accord with the observations of the earlier Constitution Bench in Illuri Subbayya Chettys case - AIR 1964 SC 322 at pp. 325-326 as quoted in para 27 supra - see para 29 of this judgment . Opinions may differ as to when it can be said that in the public law domain, the entire proceeding before the appropriate authority is illegal and without jurisdiction or the defect or infirmity in the order goes to the root of the matter and makes it in law invalid or void Referred to in Illuri Subbayya Chettys case and approved in Dulabhai case . The matter may have to be companysidered in the light of the provisions of the particular statute in question and the fact situation obtaining, in each case. It is difficult to visualise all situations hypothetically and provide an answer. Be that as it may, the question that frequently arises for companysideration, is, in what situation cases the number-compliance or error or mistake, companymitted by the statutory authority or Tribunal, makes the decision rendered ultra-vires or a nullity or one without jurisdiction? If the decision is without jurisdiction, numberwithstanding the provisions for obtaining reliefs companytained in the Act and the ouster clauses, the jurisdiction of the ordinary companyrt is number excluded. So, the matter assumes significance. Since the landmark decision in Anisminic Ltd. v. Foreign Compensation Commission 1969 2 AC 147 1969 1 All ER 208 H.L. , the legal world seems to have accepted that any jurisdictional error as understood in the liberal or modern approach, laid down therein, makes a decision ultra vires or a nullity or without jurisdiction and the ouster clauses, are companystrued restrictively, and such provisions whatever their stringent language be, have been held number to prevent challenge on the ground that the decision is ultra vires and being a companyplete nullity, it is number a decision within the meaning of the Act. The companycept of jurisdiction has acquired new dimensions. The original or pure theory of jurisdiction means, the authority to decide, and it is determinable at the companymencement, and number at the companyclusion of the inquiry. The said approach has been given a go bye in Anisminic case, as we shall see from the discussion hereinafter See De Smith, Woolf and Jowell - Judicial Review of Administrative Action 1995 edn. P. 268 Halsbunys Laws of England 4th edn. p. 114 - para 67 - foot numbere 9 . As Sir William Wade observes in his book, Administrative Law 7th edn. , 1994, at p. 299, The tribunal must number only have jurisdiction at the outset, but must retain it unimpaired until it has discharged its task. The decision in Anisminic case has been cited with approval in a number of cases by this Court Citation of few such cases Union of India v. Tarachand Gupta Bros. A.R. Antulay v. R.S. Nayak and Anr. R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission IT WT and Anr. N. Parthasarathy Etc. Etc. v., Controller of Capital Issues and Anr. Etc. Etc. Associated Engineering Co. Government of Andhra Pradesh and Anr. Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors. Delivering the judgment of a two-Member Bench in Shri M.L. Sethi v. Shri R.P. Kapur Methew, J. in paragraphs 10 and 11 of the judgment explained the legal position after Anisminic case to the following effect The word jurisdiction is a verbal cast of many companyours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission 1969 2 AC 147, namely, the entitlement to enter upon the enquiry in question. If there was an entitlement to enter upon an inquiry into the question, then any subsequent error companyld only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denman in R. v. Bolton, 1841 1 QB 66. He said that the question of jurisdiction is determinable at the companymencement, number at the companyclusion of the enquiry. In Anisminic Ltd., 1969 2 AC 147 Lord Reid said Put there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the companyrse of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had numberpower to make. It may have failed in the companyrse of the enquiry to companyply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was number remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under provisions setting it up, it had numberright to take into account. I do number intend this list to be exhaustive. In the same case, Lord Pearce Said Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are companyditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has numberjurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice or it may ask itself the wrong questions or it may take into account matters which it was number directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something number directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity. The dicta or the majority of the House of Lords, in the above case would show the extent to which lack and excess of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional companycept of jurisdiction. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. That companyes perilously close to saying that there is jurisdiction if the decision is right in law but numbere if it is wrong. Almost any misconstruction of a Statute can be represented as basing their decision on a matter with which they have numberright to deal, imposing an unwarranted companydition or addressing themselves to a wrong question. The majority opinion in the case leaves a companyrt or Tribunal with virtually numbermargin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by companystruing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow In a subsequent Constitution Bench decision, Hari Prasad Mulshankar Trivedi V.B. Raju and Ors., delivering the judgment of the Bench, Mathew, J., in para 27 at page 2608 of the judgment, stated thus Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic Case. 1967 3 W.L.R. 382, we do number think that the distinction between the two has been companypletely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word jurisdiction is an expression which is used in a variety of senses and takes its companyour from its companytext see Per Diplock, J. at p. 394 in the Anisminic Case . Whereas the pure theory of jurisdiction would reduce jurisdictional companytrol to a vanishing point, the adoption of a narrower meaning might result in a more useful legal companycept even though the formal structure of law may lose something of its logical symmetry. At bottom the problem of defining the companycept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic. SA. De Smith, Judicial Review of Administrative Action. 2nd Edn., p. 98. 1968 edition emphasis supplied The observation of the learned author S.A. De Smith was companytinued in its third edition 1973 at page 98 and in its fourth edition 1980 at page 112 of the book. The observation aforesaid was based on the then prevailing academic opinion only as is seen from the foot numberes. It should be stated that the said observation is omitted from the latest edition of the book De Smith, Woolf and Jowell - Judicial Review of Administrative Action - 5th edition 1995 as is evident from page 229 probably due to later developments in the law and the academic opinion that has emerged due to the change in the perspective. After 1980, the decision in Anisminic case came up for further companysideration before the House of Lords, Privy Council and other companyrts. The three leading decisions of the House of Lords wherein Anisminic principle, was followed and explained, are the following In re Racal Communications Ltd. 1981 AC 374, OReilly and Ors. v. Mackman and Ors. 1983 2 AC 237, Regina v. Hull University Visitor 1993 AC 682. It should be numbered that In re Racals case, the Anisminic principle was held to be inapplicable in the case of superior companyrt where the decision of the companyrt is made final and companyclusive by the statute. The superior companyrt referred to in this decision is the High Court 1981 AC 374 383, 384, 386, 391 . In the meanwhile, the House of Lords in Council for Civil Service Union and Ors. v. Minister For the Civil Service 1985 1 AC 374 enunciated three broad grounds for judicial review, as legality, procedural propriety and rationality and this decision had its impact in the development of the law in post-Anisminic period. In the light of the above four important decisions of the House of Lords, other decisions of the companyrt of appeal, Privy Council, etc. and the later academic opinion in the matter the entire case law on the subject has been reviewed in leading text books. In the latest edition of De Smith on Judicial review of Administrative Action - edited by Lord Woolf and Jowell, Q.C. Professor of Public Law Fifth edition - 1995 , Chapter 5, titled as Jurisdiction, Vires, Law and Fact pp. 223-294 , there is exhaustive analysis about the companycept, jurisdiction, and its ramifications. The authors have discussed the pure theory of jurisdiction, the innovative decision in Anisminic case 1969 2 AC 147, the development of the law in the post Anisminic period, the scope of the finality Clauses exclusion of jurisdiction of companyrts in the statutes, and have laid down a few propositions at pages 250-256 which companyld be advanced on the subject. The authors have companycluded the discussion thus at page 256 After Anisminic virtually every error of law is a jurisdictional error, and the only place left for number-jurisdictional error is where the companyponents of the decision made by the inferior body included matters of fact and policy as well as law, or where the error was evidential companycerning for example the burden of proof or admission of evidence . Perhaps the most precise indication of jurisdictional error is that advanced by Lord Diplock in Racal Communications, when he suggested that a tribunal is entitled to make an error when the matter involves, as many do inter-related questions of law, fact and degree. Thus it was for the companynty companyrt judge in Peariman to decide whether the installation of central heating in a dwelling amounted to a structural alteration extension or addition. This was a typical question of mixed law, fact and degree which only a scholiast would think it appropriate to dissect into two separate questions, one for decision by the superior companyrt, viz. the meaning of these words, a question which must entail companysiderations of degree, and the other for decision by a companynty companyrt, viz. the application of words to the particular installation, a question which also entails companysiderations of degree. It is, however, doubtful whether any test of jurisdictional error will prove satisfactory. The distinction between jurisdictional and numberjurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the companyrts rightly insist that all administrative action should be, simply, lawful, whether or number jurisdictionally lawful. Emphasis supplied The jurisdictional companytrol exercised by superior companyrts over subordinate companyrts, tribunals or other statutory bodies and the scope and companytent of such power has been pithily stated in Halsbury Laws of England 4th edition Reissue , 1989, volume 1 1 , P. 113 to the following effect The inferior companyrt or tribunal lacks jurisdiction if it has numberpower to enter upon an inquiry into a matter at all and it exceeds jurisdiction if it nevertheless enters upon such an inquiry or, having jurisdiction in the first place, it proceeds to arrogate an authority withheld from it by perpetrating a major error of substance, form or procedure, or by making an order or taking action outside its limited area of companypetence. Not every error companymitted by an inferior Court or tribunal or other body, however, goes to jurisdiction. Jurisdiction to decide a matter imports a limited power to decide that matter incorrectly. A tribunal lacks jurisdiction if I it is improperly companystituted, or 2 the proceedings have been improperly instituted, or 3 authority to decide has been delegated to it unlawfully, or 4 it is without companypetence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject matter, the value of that subject matter, or the number-existence of any other prerequisite of a valid adjudication. Excess of jurisdiction is number materially distinguishable from lack of jurisdiction and the expressions may be used interchangeably. Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or companylateral to the merits of, the issue, or as jurisdictional. p. 114 There is a presumption in companystruing statutes which companyfer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or action will exceed the jurisdiction companyferred and will be quashed. The error must be one on which the decision or action depends. An error of law going to jurisdiction may be companymitted by a body which fails to follow the proper procedure required by law, which takes legally irrelevant companysiderations into account, or which fails to take relevant companysiderations into account, or which asks itself and answers the wrong question. pp. 119-120 The presumption that error of law goes to jurisdiction of a particular statute, so that the relevant body will number exceed its jurisdiction by going wrong in law. Previously, the companyrts were more likely to find that errors of law were within jurisdiction but with the modem approach errors of law will be held to fall within a bodys jurisdiction only in exceptional cases. The companyrts will generally assume that their expertise in determining the principles of law applicable in any case has number been excluded by Parliament p.120 Errors of law include misinterpretation of a statute or any other legal document or a rule of companymon law asking oneself and answering the wrong question, taking irrelevant companysiderations into account or failing to take relevant companysiderations into account when purporting to apply the law to the facts admitting inadmissible evidence or rejecting admissible and relevant evidence exercising a discretion on the basis of incorrect legal principles giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons, and misdirecting oneself as to the burden of proof pp. 121-122 Emphasis supplied H.W.R. Wade and C.F. Forsyth in their book - Administrative Law, Seventh Edition 1994 - discuss the subject regarding the jurisdiction of superior companyrts over subordinate companyrts and tribunals under the head Jurisdiction over Fact and Law in Chapter 9, pages 284 to 320. The decisions before Anisminic and those in the post Anisminic period have been discussed in detail. At pages 319-320, the authors give the Summary of Rules thus Jurisdiction over fact and law Summary At the end of a chapter which is top-heavy with obsolescent material it may be useful to summarise the position as shortly as possible. The overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is number safe to say that the classical doctrines are wholly obsolete and that the broad and simple principles of review, which clearly number companymend themselves to the judiciary, will entirely supplant them. A summary can therefore only state the long-established rules together with the simpler and broader rules which have number superseded them, much for the benefit of the law. Together they are as follows Errors of fact Old rule The companyrt would quash only if the erroneous fact was jurisdictional. New rule The companyrt will quash if an erroneous and decisive fact was a jurisdictional b found on the basis of numberevidence or c wrong, misunderstood or ignored. Errors of law Old rule The companyrt would quash only if the error was a jurisdictional or b on the face of the record. New rule The companyrt will quash for any decisive error, because all errors of law are number jurisdictional. emphasis supplied The scope of the exclusionary clauses companytained in the statutes has been companysidered in great detail with reference to the decisions of the superior companyrts in England and also the decisions of the Supreme Court of India by Justice G.P. Singh former Chief Justice, M.P. High Court in Principles of Statutory Interpretation, 6th edition 1996 at page 475. The law is stated thus A review of the relevant authorities on the point leads to the following companyclusions An Exclusionary Clause using the formula an order of the tribunal under this Act shall number be called in question in any Court is ineffective to prevent the calling in question of an order of the tribunal if the order is really number an order under the Act but a nullity. Cases of nullity may arise when there is lack of jurisdiction at the stage of companymencement of enquiry e.g., when a authority is assumed under an ultra vires statute b the tribunal is number properly companystituted, or is disqualified to act c the subject-matter or the parties are such over which the tribunal has numberauthority to inquire and d there is want of essential preliminaries prescribed by the law for companymencement of the inquiry. Cases of nullity may also arise during the companyrse or at the companyclusion of the inquiry, These cases are also cases of want of jurisdiction if the word jurisdiction is understood in a wide sense. Some examples of these cases are a when the tribunal has wrongly determined a jurisdictional question of fact or law b when it has failed to follow the fundamental principles of judicial procedure, e.g. has passed the order without giving an opportunity of hearing to the party affected c when it has violated the fundamental provisions of the Act, e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters d when it has acted in bad faith and e when it grants a relief or makes an order which it has numberauthority to grant or make as also f when by misapplication of the law it has asked itself the wrong question. With great respect to the learned author, I would adopt the above statement of law, as my own. I would companyclude this aspect by holding that the jurisdiction of civil companyrts is number barred in entirety regarding the attack against the levy and or claim for refund in those cases, companying within the three categories mentioned in paras 5 and 29 of this judgment, the jurisdiction of the ordinary companyrts will number be ousted, in the circumstances and subject to the companyditions stated therein and in para 30 supra . Two decisions of this Court rendered after Section 11B of the Act was amended in 1991, deserve mention. They are - Union of India and Ors. v. Jain Spinners Limited and Anr Union of India and Ors. v. ITC Ltd. 1993 Supp. 4 SCC 326. In Jain spinners case, the application for refund itself was filed before the companycerned statutory Authority Assistant Collector, Central Excise . While the said application was pending, Section 11B of the Act came into force. There was an earlier interim order passed by the High Court directing the deposit of the duty levied with a liberty to the Revenue to withdraw it, subject to the companydition that the amount will be refunded if the assessee succeeded ultimately. The Assistant Collector applying the amendments effected in 1991, declined to order refund, holding that the assessee had passed on the incidence of duty to others. It was upheld by this Court numberwithstanding the interim orders and other proceedings of the High Court. Basically, the application for refund was filed before the companycerned statutory authority, who negatived the claim by giving effect to the provisions of the Amendment Act. There was numberattack in the above case that the levy or companylection as one unauthorised or unconstitutional or without jurisdiction or illegal. In Union of India v. ITC Ltd. the Jain Spinners case supra was followed. The main aspect that arose for companysideration in the latter case was whether the assessee had passed on the incidence of duty to the companysumers or other persons. In spite of the repeated orders of this Court, the assessee failed to establish that the burden of excess excise duty was borne by it and was number passed on to any other person. The assessee had filed five applications for refund. Three of them were allowed by the statutory authorities in the appeals. Only two refund applications were rejected which were assailed in the High Court. The High Court allowed the said applications, directing the Revenue to refund the amounts due as per the two refund applications. In Appeal, this Court stressed the fact that the assessee was number able to substantiate that the burden of excess excise duty was borne by it and was number passed on to any other person. Incidentally, this Court also referred to the amended provisions of the Act 11B, 12B etc. and held that the amended provisions would apply when the matter regarding refund was still pending for adjudication in this Court. In this case also the levy or companylection was number assailed as unconstitutional or illegal or without jurisdiction and, in companysequence refund was called for. The above two cases did number deal with the maintainability of action in the ordinary companyrts where the levy or companylection is assailed on the ground that it is unconstitutional, illegal or without jurisdiction. The changes brought about by the Central Excise and Customs Laws Amendment Act, 1991 w.e.f. 20.9.1991 regarding refund and the scope of Section 11B read with Section 12B was the subject of great companytroversy before us. The Amendment Act 1991 is also attacked as unconstitutional, illegal, invalid and unreasonable and as a device to deny refund legitimately due. The relevant statutory provisions have been extracted earlier in this judgment. Briefly stated the position is this. Clause 3 of Section 11B provides that numberwithstanding any judgment, decree or order of the appellate tribunal or any companyrt etc. numberrefund shall be made except as provided in Sub-section 2 , In other words, the procedure to obtain refund is made exclusive as per Section 11B 3 of the Act. The application, therefore, shall be made under Section 11B 1 and dealt with by the companycerned authority under Section 11B 2 of the Act. These provisions mandate amongst other things that the person claiming refund should substantiate that the incidence of duty has number been passed on by him to any other person. The application should also be filed within the time prescribed in the said sub-section. Section 11B 2 and Section 11B 3 go together. Under Section 11B 2 , in certain specified cases, the duty paid will be refunded to the applicant. One such case is, the duty of excise paid by the manufacturer, if he had number passed on the incidence of such duty to any other person and substantiates the same. In cases number falling within the proviso to Section 11B 2 of the Act the duty companylected will be credited to the Consumer Welfare Fund and the said Fund will be utilised as per Section 12D of the Act. As stated, Section 11B 2 and Section 11B 3 go together. The applications for refund made before the companymencement of the Amendment Act, 1991, shall be deemed to have been made under Section 11B 1 of the Act as amended and it shall be dealt with in accordance with Section 11B 2 of the Act. The Section companytemplates disposal of the applications pending on the date of the Amendment Act as also fresh applications filed after the Amendment Act, 1991, as per the amended provisions. Counsel for the assessees urged that the provisions relating to refund and, in particular, Section 11B 2 and 3 as amended in 1991 cannot apply to Refund made or due as per orders passed by Court, in a suit or in a petition under Article 226 of the Constitution of India, which have become final. 2. refunds ordered by the statutory authority companycerned which have become final. It is obvious that in such cases numberapplication can or will be deemed to be pending on the date of the companymencement of the Amendment Act. No application praying for refund is to be filed in such cases, either. No further probe, regarding the requisites for obtaining refund specified in the Amendment Act, 1991, is called for in such cases. The above aspects are fairly clear. Section 11B 2 and 3 cannot be made applicable to refunds already ordered by the companyrt or the refund ordered by the statutory authorities, which have become final. It follows from a plain reading of Section 11B, Clauses 1 2 and 3 of the Act. The provisions companytemplate the pendency of the application on the date of the companying into force of the Amendment Act or the filing of an application which is companytemplated under law, to obtain a refund, after the Amendment Act companyes into force. I am of the opinion, that if the said provisions are held applicable, even to matters companycluded by the judgments or final orders of companyrts, it amounts to stating that the decision of the companyrt shall number be binding and will result in reversing or nullifying the decision made in exercise of the judicial power. The legislature does number possess such power. The companyrts decision must always bind parties unless the companydition on which it is passed are so fundamentally altered that the decision companyld number have been given in the altered circumstances. It is number so herein. Shri Prithvi Cotton Mills Ltd. and Anr. v. Broach Borough Municipality and Ors and Madan Mohan Pathak v. Union of India and Ors. Etc See also Comorin Match Industries P Ltd. v. State of Tamil Nadu,. Alternatively, it may be stated that duty paid in cases, which finally ended in orders or decrees or judgments of companyrts, must be deemed to have been paid under protest and the procedure and limitation etc. stated in Section 11B 2 read with Section 11B 3 will number apply to such cases. It need hardly be stated, that Section 11B 1 , the proviso thereto, Section 11B 2 and Section 11B 3 read together will apply only to 1 refund applications made before the Amendment of the Act and still pending on the date of companymencement of Amendment Act, 1991 and 2 applications companytemplated under law to obtain refund and filed after the companymencement of the Amendment Act, 1991 Cases dealt with in paras 5 and 29 of this judgment will number be companyered by the above to the extent stated therein . Excise duty is an indirect levy. It is intended or presumed to be passed on. This is so under the ordinary law. Section 12B of the Act only provides a statutory rebuttable presumption in that regard. If it turns out that the levy is number exigible, it is refundable to the person who had borne the liability. Ordinarily, in the case of indirect taxes, such persons will be innumerable and cannot be easily identified or located. If the duty, which is number exigible, is refunded to the person who had number borne the liability, it will result in an unjust benefit to him. So the Act has provided in Section 11B 2 , that in such cases where the duty is refundable, it will be credited to the Consumer Welfare Fund Section 12C . However, the proviso to Section 11B 2 provides that the duty of excise will be refunded in few specified cases, subject to certain companyditions -- one of them is the manufacturer -- in cases, where he has number passed on the incidence to any other person Clause d . Those provisions will apply only for refunds to be made under the Act. In the totality of the factual situation, it cannot be said that the provisions ushered in by Amendment Act, 1991 -- and the scheme formulated in Sections 11B and 12A to D -- are, a device or invalid or arbitrary or unreasonable except to the extent stated in para 38 supra or in any way companystitutionally infirm Of companyrse, the cases dealt with in paras 5 and 29 are excluded to the extent stated therein . Brother Jeevan Reddy, J. has dealt with this matter rather elaborately and there is numberneed to elaborate the matter any further. In the matter of taxation laws, the companyrt permits a great latitude to the discretion of the legislature. The State is allowed to pick and choose districts, objects, persons, methods and even rates for taxation, if it does so reasonably. The companyrts view the laws relating to economic activities with greater latitude than other matters. See Collector of Customs, Madras v. Nathella Sampathu Chetty and Anr. 1962 3 SCR 786 Khyerbari Tea Company and Anr. v. State of Assam and Ors. AIR 1984 SC 925 R.K. Garg v. Union of India and Ors. AIR 1981 SC 2138 Gaurishanker and Ors. v. Union of India and Ors. and Union of India and Anr. Etc. Etc. A. Sanyasi Rao and Ors. Etc. Etc. etc. Before closing I should specifically deal with two important aspects. In this judgment I have dealt with cases where duty is paid on items which are companysumed as such. Due to paucity of details, the case of captive companysumption has number been dealt with. It is made clear that whatever is stated in this judgment will number apply in the cases of goods which are captively companysumed. Chapter II-A of the Act was inserted by way of amendment in 1991. The establishment, working, administration and utilisation to the Consumer Welfare Fund is in its stage of infancy. The scheme or set-up envisaged by Sections 12C and 12D and its working will require an in-depth evaluation by the appropriate authorities in order to vouchsafe that the scheme is number rendered a mere ritual or illusory, but is meaningful and effective for the present, I do number want to deal with that aspect in detail. For the sake of companyvenience, I shall summarise my companyclusions as hereunder in case of doubt, the body of the judgment should be looked into . If the excise duty paid by the assessee was ultimately passed on to the buyers or any other person, and that the assessee has suffered numberloss or injury, the action for restitution based on Section 72 of the Contract Act, is unsustainable. This is the legal position even under general law, without reference to Section 11B of Central Excises Salt Act as amended by Act 40/1991. The decision in Kanhaiya Lals case and the cases following the same, cannot be understood as laying down the law that even in cases the liability has been passed on, the assessee can maintain an action for restitution. If the decision in Kanhaiya Lals case supra and the cases following the said decision, enables such a person to claim refund restitution , with great respect of the learned Judges, who rendered the above decisions, I express my dissent thereto. In this companytext, the observations in para 29 - Clause III shall also be borne in mind. Article 265 should be read along with the Preamble and Article 39 b and c of the Constitution, and so companystrued in cases where the assessee has passed on the liability to the companysumer or third party, he is number entitled to restitution or refund. The fact that the levy is invalid need number automatically result in a direction for refund of all companylections made in pursuance thereto. The presumption is that the taxpayer has passed on the liability to the companysumer or third party . It is open to him to rebut the presumption. The matter is exclusively within the knowledge of the taxpayer, whether the price of the goods included the duty element also and or also as to whether he has passed on the liability since he is in possession of all relevant details. Revenue will number be in a position to have an indepth analysis in the innumerable cases to ascertain and find out whether the taxpayer has passed on the liability. The matter being within the exclusive knowledge to the taxpayer, the burden of proving that the liability has number been passed on should lie on him. It is number possible to companyclude that any and every claim for refund of illegal unauthorised levy of tax, can be made only in accordance with the provisions of the Act Rule 11, Section 11B etc., as the case may be , and an action by way of suit or writ petition under Article 226 will number be maintainable under any circumstances. An action by way of suit or a petition under Article 226 of the Constitution is maintainable to assail the levy or order which is illegal, void or unauthorised or without jurisdiction and or claim refund, in cases companyered by propositions No. 1 3 4 and 5 in Dulabhais case, as one passed outside the Act, and ultra vires. Such action will be governed by the general law and the procedure and period of limitation provided by the specific statute will have numberapplication. The attack against the illegal or unauthorised levy as also the relief of refund may fall ordinarily within the three categories specified in paragraph 29 of the judgment. An action by way of suit or writ petition under Article 226 of the Constitution of India will lie in the cases, and subject to the companyditions stated in paragraphs 29 and 30 of the judgment. The jurisdiction of civil companyrts is number barred in entirety regarding the attack against the levy and or claim for refund in those cases, companying within the three categories mentioned in paras 5 and 29 of this judgment, the jurisdiction of the ordinary companyrts will number be ousted, in the circumstances and subject to the companyditions stated therein and in para 30 supra . Section 11B 2 and 3 cannot be made applicable to refunds already ordered by the companyrt or the refund ordered by the statutory authorities, which have become final. It follows from a plain reading of Section 11B, Clauses 1 2 and 3 of the Act. The provisions companytemplate the pendency of the application on the date of the companying into force of the Amendment Act or the filing of an application which is companytemplated under law, to obtain a refund, after the Amendment Act companyes into force. If the said provisions are held applicable, even to matters companycluded by the judgments or final orders of companyrts, it amounts to stating that the decision of the companyrt shall number be binding and will result in reversing or nullifying the decision made in exercise of the judicial power. The legislature does number possess such power. Alternatively, it may be stated that duty paid in cases, which finally ended in orders or decrees or judgments of companyrts, must be deemed to have been paid under protest and the procedure and limitation etc. stated in Section 11B 2 read with Section 11B 3 will number apply to such cases. It need hardly be stated, that Section 11B 1 , the proviso thereto, Section 11B 2 and Section 11B 3 read together will apply, only to 1 refund applications made under the statute and filed before the Amendment of the Act and still pending on the date of companymencement of Amendment Act, 1991 and 2 applications companytemplated under law to obtain refund and filed after the companymencement of the Amendment Act, 1991. cases dealt with in paras 5 and 29 of this judgment will number be companyered by the above to the extent stated therein . The proviso to Section 11B 2 , provides, that the duty of excise will be refunded in few specified cases, subject to certain companyditions - one of them is the manufacturer - in cases, where he has number passed on the incidence to any other person Clause d . Those provisions will apply only for refunds to be made under the Act. In the totality of the factual situation, it cannot be said, that the provisions ushered in by Amendment Act, 1991 - and the scheme formulated in Sections 11B and 12A to B -- in the light of the clarifications made in the body of the judgment, and more particularly in paras 25 and 40 above are, a device or invalid or arbitrary or unreasonable except to the extent stated in para 38 supra or in any way companystitutionally infirm. Of companyrse, the cases dealt with in paras 5 and 29 are excluded to the extent stated therein . The principles laid down in this judgment should be applied to the fact situation obtaining in individual cases and should be disposed of accordingly. The matters may be placed before My Lord the Chief Justice for appropriate orders in this behalf. Hansaria, J. The companyclusions arrived at by learned brother Paripoornan, J. and the reasons given in support thereof, have my respectful companycurrence. I have numberhing useful to add. The time at my disposal does number really permit me to do so, as the draft of this judgment reached my hands on the night of 15th instant indeed, the first draft judgment of the case got me in the evening of 13th of this month. Sen, J. Leave granted in the Special Leave Petitions. In C.A. No. 3255 of 1984 and a number of other cases which have been heard together, questions have been raised, firstly, as to whether a refund of Central Excise Duty wrongly realised from a tax-payer can be withheld on the ground of what is described as unjust enrichment, without any specific provision of law to that effect secondly, whether the position was altered after the Central Excise Act, 1944 was amended by the Central Excises and Customs Law Amendment Act, 1991 which came into effect on September 20, 1991? By virtue of this amendment Section 11B along with a few other sections of the Central Excise Act, 1944 stood amended. I shall deal with both these questions separately. But before entering into that companytroversy, it is important to bear in mind the provisions of Article 265 of the Constitution and its amplitude. It has also to be seen what is the scope, meaning and purport and also the import of what is described as unjust enrichment. A challenge has also been made to the validity of the amendments made to the Central Excise Act. That will also have to be examined. ARTICLE 265 Article 265 of the Constitution lays down that numbertax shall be levied or companylected except by authority of law. The mandate of the Constitution is lucid and clear and must be taken to mean what it says. No tax takes in every type of tax. It has been companytended on behalf of the Union of India that Article 265 merely lays down that numberdirect tax shall be levied or companylected except by authority of law. The first question is that if that was the intention of the Constitution makers, then why did they number say so in so many words? Taxation has been defined in Article 366 28 to include the imposition of any tax or impost, whether general or local or special, and tax shall be companystrued accordingly. Therefore, the word tax will include any tax general, local or special. That means every kind of tax direct or indirect will companye within the ambit of Article 265. It has also to be numbered that Article 265 is included in Part XII of the Constitution which deals with Finance, Property, Contracts and Suits. Chapter I of Part XII deals with Finance. Under this heading, both direct and indirect taxes have been dealt within a number of Articles. Article 268 deals with stamp duties and duties of excise on medicinal and toilet preparations. Article 269 deals with duties in respect of succession to property other than agricultural land, estate duty in respect of property other than agricultural land, terminal taxes on goods or passengers, taxes on railway fares and freights, taxes other than stamp duties on transactions in stock-exchanges and futures markets and taxes on the sale or purchase of newspapers and on advertisements published therein. Article 270 deals with taxes on income other than agricultural income. Article 272 deals with Union duties of excise, other than duties of excise on medicinal and toilet preparations. Article 276 deals with taxes for the benefit of a State or a municipality, district board, local board or other local authority in respect of professions, trades, callings or employments. Article 277 deals with taxes, duties, cesses or fees which were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area. Article 287 deals with tax on the companysumption or sale of electricity. All these Articles go to show that Part XII, Chapter I, deals with number only direct taxes like taxes on income or duties in respect of succession to property, but also deals with indirect taxes like stamp duty, duties of excise on medicinal and toilet preparations, other duties of excise, terminal taxes on goods, taxes on railway freights, taxes on transactions in stockexchanges and futures markets and taxes on sale or purchase of newspaper. In the companytext of all these Articles in Chapter I of Part XII dealing with direct and indirect taxes, it is difficult to hold that the mandate at the beginning of the Chapter that numbertax shall be levied or companylected except by authority of law, was meant to be companyfined to direct taxes only and number to other types of taxes which were specifically enumerated in a number of other Articles in Chapter I of Part XII of the Constitution. Moreover, this argument, if accepted, will have dangerous implications. It will mean that the Constitution has impliedly empowered the Government to levy and companylect indirect taxes without any authority of law. Bearing in mind that the bulk of the taxes imposed by the Union and practically the entire amount of taxes companylected by the States is by indirect levies, the companystitutional protection against unlawful taxes will become meaningless and devoid of any substance. Mr. Parasaran, appearing on behalf of Union of India has argued that Article 265 has to be read along with the Directive principles. The State has been enjoined to direct its policy towards securing that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good. I do number see how this provision or any other provision of Article 39 can in any way whittle down the scope of Article 265 of the Constitution. If the provisions of Article 39 are to be companystrued as a licence given to the State to retain whatever has been companylected however unlawfully, then why should any distinction be made between direct taxes and indirect taxes? If the argument is taken to its logical companyclusion, it will mean that the State will be at liberty to retain whatever it has gathered unlawfully by direct as well as indirect taxation and use the same for the purpose of companymon good according to its perception. The victims of unlawful activities of the State will have numberremedy against the State. This reasoning, if accepted, will have the effect of turning the State into a Leviathan in which the individuals have only such rights as may be permissively given by the State. The various companystitutional guarantees given to protect the individuals from the oppression by State will become futile and without any meaning and substance. Neither Article 38 number Article 39, in any way, empower the State to levy or retain taxes without any authority of law. The importance and effectiveness of the Directive Principles of the State Policy have been laid down in Article 31C in the following words 37C Saving of laws giving effect to certain directive principles. - Notwithstanding anything companytained in Article 13, numberlaw giving effect of the policy of the State towards securing all or any of the principles laid down in part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Article 14 or Article 19 and numberlaw companytaining a declaration that it is for giving effect to such policy shall be called in question in any companyrt on the ground that it does number give effect to such policy Provided that where such law is made by the Legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his asS. The disputes raised in this case do number relate to enforcement of the guarantees companytained in Article 14 or Article 19 of the Constitution in any manner. The laws of Central Excise have been enforced since 1944 or even earlier. It is a tax on manufacture of goods. The object of the tax is to raise revenue for the Government. But this can only be done in accordance with law. No man can be subjected to an unlawful exaction made by the State by whatever process in disregard of the guarantee given by Article 265 of the Constitution. In my judgment, apart from its boldness, there is numbermerit in this companytention that guarantee companytained in Article 265 of the Constitution must be restricted to direct taxes only. In my judgment, Article 265 must be implemented in letter and spirit as it stands and all the tax laws and all Government actions to realise and retain tax must be tested on the anvil of this guarantee. The companyrts should jealously guard against any attempt to whittle down or do away with any of the guarantees given under the Constitution to the citizens. In my judgment, Article 265 will have to be given full effect in cases of direct as well as indirect taxation. If any tax has been levied and companylected without authority of law, then the State has companymitted a wrong and that wrong must be undone by the State by returning the tax unlawfully companylected to the person from whom it was companylected. The Court has a duty to uphold the Constitution in letter and spirit. If the Court companyes to the companyclusion that a levy of tax is unlawful, the Court will direct the Government to return the tax. It is number for the Court to enquire how the tax-payer has managed his affairs after payment of the unlawful levy. It is but natural that the tax-payer will try to raise funds by raising price or cutting down companyts or forgoing profits to get over the loss caused by the unlawful exaction of tax. There is usually companysiderable time gap from payment of any illegal levy and obtaining an order of refund. In most of the cases several years pass before refund of duty paid can be obtained. In such a situation, it is impossible for the taxpayer companypany number to do something to raise money somehow to carry on its business. Merely because a manufacturer has raised its price after paying the illegal levy cannot be a ground for denying him the companystitutional guarantee companytained in Article 265. The companystitutional guarantee is unconditional and unequivocal and must be enforced regardless of what the manufacturer does after payment of tax. If the manufacturer has done something unlawful, steps must be taken against him. If this Court holds that companystitutional guarantees ought to be enforced depending upon the companyduct of the manufacturer after payment of the illegal levy, then the Court would be adding a rider to Article 265 which is number permissible. By this forced interpretation the Court will number be upholding the Constitution, but will be undermining it. A point has been made that the manufacturer has passed on the burden of the illegal levy to his customers by raising his price of the goods. But that is numberreason why the guarantee given by the Constitution should number be enforced. The manufacturer may have been companypelled to raise the price because of the imposition of an illegal levy. But that is numberreason to dilute the mandate companytained in Article 265 of the Constitution. Article 265 forbids the State from making an unlawful levy or companylecting taxes unlawfully. The bar is absolute. It protects the citizens from any unlawful exaction of tax. So long as Article 265 is there, the State cannot be permitted to levy any tax without authority of law and if any tax has been companylected unlawfully that must be restored to the person from whom it was companylected. If the tax has been companylected from any person unlawfully, it is the taxpayers money which is in unlawful possession of the State. The State has a companystitutional obligation to give back the money to the taxpayer. An act done in violation of companystitutional mandate is void and numberright flows out of that void act to the State. The State is in unlawful possession of the taxpayers property. The State cannot retain it on any equitable ground number can it give it to any other person out of any supposed equitable companysideration. The companystitutional mandate cannot be ignored on the pretext of any rule of equity or on the ground of what is perceived as substantive justice. Every word of the Constitution has to be treated as sacrosanct and respected and obeyed by the State and the Legislature and enforced by the Court. The Court cannot, by torturing the language of Article 265 or by any other means, companystrue it so as to give it a meaning which it does number naturally bear. It was observed in the case of Commissioner of Inland Revenue v. Rossminster Ltd. 1980 AC 952 at 1018 that in companystruing a statutory provision, the rule of companystruction must be however much a companyrt may deprecate an Act, it must apply it. It cannot by torturing its language or any other means companystrue it so as to give a meaning which the Parliament did number clearly intend it to bear. The same rule of companystruction will apply for companystruing a companystitutional provision. The Court may dislike Article 265 and its natural companysequence. But because of that the Court cannot torture its language to bring out a meaning which the words do number naturally bear. Once it is established that a levy or companylection of tax is void, numberlegal or equitable right is acquired by the State in the unlawfully companylected money. The right to get refund accrues to the person who pays it the moment an illegal levy or companylection is made. Once the levy or companylection is declared illegal, the illegally companylected amount has to be immediately paid back to the person from whom it was companylected. The refund order is made to enforce the right of the tax-payer which accrued when the tax was illegally levied and companylected from him. This is an absolute obligation under the Constitution, No statute can provide otherwise. If a companylection of tax is found to be illegal being in companytravention of the provisions of Central Excise Act, then it number only violates the Act but also the Constitution. If the Central Excise Act is amended or any separate act is passed to provide for denial of refund to the taxpayer, in any manner, then such amendment or Act is as offensive to the Constitution as the illegal levies themselves were. If the tax has been illegally exacted from a person, then he has been denied the protection given to him by the Constitution. The denial of the right to recover the unlawfully companylected tax is denial of the protection given to citizen by Article 265. A similar question was examined by the Judicial Committee of the Privy Council in an appeal from Australia in Commissioner for Motor Transport v. Antill Ranger Co. Pvt. Ltd. 1966 3 All. E.R. There, certain charges had been levied by the State of New South Wales under an Act in companynection with inter-State transactions. These charges where held to be violative of Section 92 of the Commonwealth of Australian Constitution. Subject to imposition of uniform duties of customs, Section 92 guarantees freedom of trade, companymerce and intercourse among the States by internal carriage or ocean navigation. The levy under the Principal Act having been declared unlawful, an Act called the state Transport Co-ordination Barring of Claims and Remedies Act, 1954 was passed barring and extinguishing the right of recovery of any sums companylected or recovered under the Principal Act. It was made clear that the provisions of the Barring Act would apply to proceedings pending at the companymencement of the Act as well as proceedings brought after the companymencement of the Act. The validity of the Barring Act was challenged. It was pointed out by the Judicial Committee that if the Act was valid, it would be a companyplete answer to the claim of the taxpayers. But the validity of the relevant provisions of the Barring Act companyld be numbergreater or numberless if they had been companytained in the Principal Act itself. It was held that neither prospectively number retrospectively can a State law make lawful that which the Constitution says is unlawful. If the statute laid down that the charges in respect of inter-State trade should be imposed and that, if they were illegally imposed and companylected, they should nevertheless, be retained, such an enactment would be illegal. The statutory immunity accorded to illegal acts is as offensive to the Constitution as the illegal acts themselves. The Judicial Committee posed the following questionThen the question is whether the statutory immunity accorded to illegal acts is number as offensive to the Constitution as the illegal acts themselves, and, applied to the present circumstances, that question is whether, if the imposition of charges in respect of inter-state trade is invalid as an offence against Section 92, it is number equally an offence to deny the right to recover them after they have been unlawfully exacted. The Judicial Committee answered the question by saying that It appears to their Lordships that to this question there can be only one answer. It cannot be too strongly emphasise or too often repeated that, in the words of the High Court, the immunity given by Section 92 to trade, companymerce and intercourse cannot be transient or illusory. Yet, how fugitive would that protection be if effect where given to the argument of the appellants in this case. The Judicial Committee clearly recognised Section 92 of the Australian Constitution as a measure of protection to the respondents who were the taxpayers. The judicial Committee emphasised, this protection companyld number be allowed to be transient or illusory. We should also number allow the protection to the taxpayers by Article 265 of our Constitution to be transient and illusory. The Judicial Committee went on to give an illustration which is also useful for the purpose of this case. A trader desiring to engage in inter- State trade and companyfronted with the provisions of an unlawful Act may companyform to its requirements and submit to the pecuniary exactions in order that he may be able to carry on his business. He can test the legality of the exactions in a companyrt of law and if he was right and these sums were unlawfully exacted, he is entitled to the protection afforded by Section 92 of the Constitution. What is his situation if then he finds himself by a later provision of the same Act or by a subsequent Act once more subjected to the same exactions? The burden of his trade remains just what it was the freedom of his trade has been in the same degree impaired. In letter and spirit, Section 92 is in the same measure defeated. An argument was advanced before the Judicial Committee that the Barring Act did number impose any burden on trade but only barred the right of property viz., the right to sue for moneywhich accrued after the trading operations were over, the Judicial Committee rejected this argument by observing that an enactment whose only object is to validate an exaction which the section renders unlawful would in their Lordships opinion be a mockery of the spirit of the Constitution. In the case before us, a very similar situation has arisen. The levy and companylection of excise duty has been found to be illegal. It has been levied and companylected in violation of the Central Excise Act and also the guarantee companytained in the Constitution. The levy is void. It has denied the taxpayer the protection given by the Constitution. If illegally companylected tax is number immediately restored to the taxpayer, the guarantee given by the Constitution will be a mockery. The companystitutional guarantee is number hedged by any clause. A trader may trade with his goods as he likes. The terms and companyditions under which he sells his goods is a matter between him and the purchaser. He may raise his price high enough to include companyts and taxes. If he does so with the agreement of the buyer, he does number lose his right to get back what had been companylected from him illegally or the protection of Article 265 of the Constitution. That will be putting a rider on the Constitution. The Court is number permitted to write the Constitution but is duty bound to enforce it. The view of the Judicial Committee was that but for Section 92 of the Australian Constitution, the Barring Act might have been held to be valid. In the instant case also, the amended provisions of Section 11B of the Central Excise Act might have been held to be valid but for Article 265 of the Indian Constitution. The right to get refund arose the moment an illegal levy was imposed. As was pointed out in that case, the taxpayer had numberoption but to pay this levy otherwise he companyld number have carried on his trade at all. The goods would number be cleared without payment of the illegal demand made by the excise authority. This does number debar him from pointing out that the companylection of tax was illegal and claiming return of the illegal levy. The American Constitution does number companytain anything similar to Article 265 of our Constitution. The U.S. Supreme Court, therefore, had numberdifficulty in upholding the validity of Section 424 of Revenue Act of 1928 in the case of United States v. Jefferson Electric Manufacturing Company 78 Ed. 859. Section 424 provided Section 424 Refund of automobile accessories tax. No refund shall be made of any amount paid by or companylected from any manufacturer, producer, or importer in respect of the tax imposed by subdivision 3 of Section 600 of the Revenue Act of 1924unless either - 1 pursuant to a judgment of a companyrt in an action duly begun prior to April 30, 1928 or It is established to the satisfaction of the Commissioner that such amount was in excess of the amount properly payable upon the sale or lease of an article subject to tax, or that such amount was number companylected, directly or indirectly, from the purchaser or lessee, or that such amount, although companylected from the purchaser or lessee, was returned to him The Act came into force on 29th May, 1928. The section was challenged on the ground that it was violative of the Fifth Amendment of the American Constitution in that a taxpayer was being deprived of his property without due process of law and his private property was being taken away for public use without just companypensation. It was held The companytention is made that sub-division a 2 , when companystrued and applied as we hold it should be infringes the due process clause of the Fifth Amendment to the Constitution in that it strikes down rights accrued theretofore and still subsisting, but number sued on prior to April 30, 1928. This companytention is pertinent, because the cases number being companysidered were begun after April 30, 1928, and in each the tax in question was paid before Section 424 was enacted, which was May 29, 1928. If the tax was erroneous and illegal, as is alleged, it must be companyceded that, under the system then in force, there accrued to the taxpayer when he paid the tax a right to have it refunded without any showing as to whether he bore the burden of the tax or shifted it to the purchasers. And it must be companyceded also that Section 424 applies to rights accrued theretofore and still subsisting, but number sued on prior to April 30, 1928, and subjects them to the restriction that the taxpayer a must show that he alone has borne the burden of the tax, or b , if he has shifted the burden to the purchasers, must give a bond promptly to use the refunded sum in reimbursing them. But it cannot be companyceded that in imposing this restriction the section strikes down prior rights, or does more than to require that it be shown or made certain that the money when refunded will go to the one who has borne the burden of the illegal tax, and therefore is entitled in justice and good companyscience to such relief. This plainly is but another way of providing that the money shall go to the one who has been the actual sufferer and therefore is the real party in interest. We do number perceive in the restriction any infringement of due process of law What the U.S. Supreme Court held in that case was that the new enactment did number infringe the due process of law and, therefore, companyld number be struck down. The U.S. Supreme Court did number have to companysider the impugned section in the light of a provision similar to Article 265 of the Indian Constitution. But there were two important observations which have to be borne in mind If the tax was erroneous and illegal, a right accrued to the taxpayer when he paid the tax to have it refunded without showing as to whether he bore the burden of tax or shifted it to the purchaser. Section 424 applied to rights accrued theretofore and still subsisting but number sued on prior to April 30, 1928. A question similar to the one dealt with by the American Supreme Court also came up before the Supreme Court of Canada, in the case of Air Canada British Columbia 1989 59 D.L.R. 4th 161. The principles laid down in Air Canada case cannot be understood unless one bears in mind the peculiar facts of the case which has been recorded in detail in the judgment of La Forest, J. The dispute was companyfined to the taxes paid by Air Canada in the 23 month period between August 1, 1974 and July 1, 1976. The tax was levied under the Gasoline Tax Act, 1948. The Act as it stood on August 1, 1974 provided that every purchaser shall pay a tax equal to 10 cents per gallon on all gasoline purchased except gasoline purchased for use in an aircraft, which was taxed at a lower rate. Section 2 defined Purchaser as under Purchaser means any person who within the Province purchases gasoline when sold for the first time after its manufacture in or importation into the Province. An identical provision in a companynate statute was struck down by the Privy Council which led to retroactive amendment of the Gasoline Tax Act by inserting Section 25 which was as under 25 1 In this section purchaser means any person who, within the Province, after August 1, 1974 and before July 8, 1976 purchased or received delivery of gasoline for his own use or companysumption or for the use or companysumption by other persons at his expense, or on behalf of, or as an agent for a principal who was acquiring the gasoline for use or companysumption by the principal or by other persons at his expense. Every purchaser shall pay to Her Majesty for the purpose of raising revenue for Provincial purposes a tax of 15c a gallon on all gasoline purchased by him after August 1, 1974 and before February 28, 1975, but a where gasoline was purchased for use in an aircraft the tax shall be 8c a gallon, and b where gasoline in the form of liquefied petroleum gas or natural gas was purchased to propel a motor vehicle the tax shall be 10c a gallon. Every purchaser shall pay to Her Majesty for the purpose of raising revenue for Provincial purposes a tax of 17c a gallon on all gasoline purchased by him after February 27, 1975 and before July 8, 1976, but a where gasoline was purchased for use in an aircraft the tax shall be 5c a gallon, and b where gasoline in the form of liquefied petroleum gas or natural gas was purchased to propel a motor vehicle the tax shall be 12c a gallon. 4 x x x x x x Where after August 1, 1974 and before July 8, 1976, money was companylected or purported to have been companylected as taxes, penalties or interest under this Act, the money shall by this section be companyclusively deemed to have been companyfiscated by the government without companypensation. These amendment were statutorily given retroactive character by Section 62 5 of the Finance Statutes Amendment Act, 1981. By this change of definition of purchaser what was an indirect tax earlier was companyverted into a direct tax. The tax was on gasoline purchased by a purchaser for his own use or companysumption or for companysumption of other persons at his expense or on behalf of or as an agent for the principal for use or companysumption by the principal or by other persons at his expense. Although, it was provided by Sub-section 5 that the amount which was companylected before the amendment of the Act between August 1, 1974 and July 1, 1976 as tax shall be companyclusively deemed to have been companyfiscated by the Government without companypensation, according to La Forest, J., the Section really does number mean what it says. A fund of money illegally companylected was lying with the Province. Having imposed the tax retroactively, the Province merely was enabled to retain the amount in its hands by adjusting it against the tax which has subsequently become payable by the amended provision. The tax retained and the tax payable were identical amounts. This in sum and substance, was the judgment of La Forest, J. The rest of the observations of La Forest, J. in Air Canada case appears to be obiter. After referring to the amended Section, La Forest, J. said That the tax is a direct tax I have numberdoubt. Since at least bank of Toronto v. Lambe 1887 , 12 App. Cas. 575, the generally accepted test of what companystitutes a direct tax has been that of John Stuart Mill A direct tax is one which is demanded from the very person who it is intended or desired should pay it. That person is clearly identified in the definition in the 1976 Act as the ultimate companysumer of the gasoline there is numberpassing on of the tax to others, whatever may be the opportunities of recouping the amount of the tax by other means a. very different thing . Referring to the new Section 25 brought into existence by the 1981 Act, La Forest, J. identified the real issue of the case in the following words None of the judges in the companyrts below casts any doubt on the legislative power of the province to impose a retroactive tax in the manner provided in Section 25 1 to 4 . What they really disagreed about was the effect of Section 25 5 on those provisions. In companymon with these judges. I am unable to see any companystitutional impediment to the provinces enacting Section 25 1 to 4 . On the reasoning regarding the 1976 Act, these provisions seem to be a proper exercise of its power to impose direct taxation in the province, the sole difference being that the 1981 provisions are given retroactive effect, a result that is number companystitutionally barred. The real question, then, is whether when Section 25 1 to 4 are companyjoined to Section 25 5 , they become so companyoured by the latter provision as to make all of Section 25 ultra vires. That question was answered by La Forest, J. in the following words That, of companyrse, raises the issue whether Section 25 5 is itself ultra vires. There are, in my view, some serious difficulties in establishing its invalidity. It may be, if the provision stood alone, that it companyld be successfully maintained that it violates the principle, in the Amax decision. I need number companysider that situation because it does number stand alone. It is the fifth of five subsections, the first four of which impose a valid direct tax, and it must obviously be read in that companytext. It must also be read in light of the well-known principle that it must be assumed that the legislature intended to stay within the companyfines of its companystitutional companypetence. While, as Esson, J.A. numberes, the expression companyfiscated is distasteful, one should number permit it to mislead us regarding the purpose of Section 25 5 . The function of the companyrts is number to give the legislature lessons in tact. Their function, rather is to attempt to discover what the legislature, however, clumsily was attempting to achieve by the language it used, a task that should, as already numbered, be informed by the presumption that the legislature intended to stay within its companystitutional powers. In the companytext in which it appears, Section 25 5 seems to be numberhing more number less than machinery for companylecting the taxes properly imposed in the first four subsections of Section 25. It must be remembered that the amounts illegally companylected under the ultra vires provision before 1974 would be equal to the taxes levied under Section 25 1 to 4 . Administratively, the taxes levied under the invalid scheme were companylected in the same manner and in the same amounts and from the same taxpayers as would have occurred if the scheme had originally been framed along the lines of Section 25 1 to 4 . What the legislature attempted to do by Section 25 5 , therefore, was to provide companylection machinery whereby the moneys owing by the taxpayers under the latter provision companyld simply be taken out of the equal amounts it had companylected from those taxpayers under the invalid tax. It was in that sense that the moneys were deemed to have been companyfiscated by the government. Having reached this companyclusion, La Forest, J. distinguished this case with the principles laid down in Amax case in the following manner In that case, the Legislature sought, by giving itself immunity, to avoid repaying an unlawful tax. This was simply an indirect way of giving effect to the invalid statuteThe situation is entirely different here. The legislature did directly what it was empowered to do impose a direct tax under Sub-sections 1 to 4 . I see numberreason why it companyld number then take that tax out of moneys it had improperly companylected from the taxpayers under the ultra vires statutes, just as it companyld have set it off against any other obligation of the government to the taxpayers. The good fortune of the legislature, in the unusual facts of this case, in having companylected amounts that matched precisely those owing by each taxpayer under Section 25 1 to 4 affords numberreason to brand as unconstitutional a tax that it can validly impose and companylect. This is the ratio of the decision of La Forest, J. An unconstitutional levy brought about by an indirect tax was cured retroactively by a direct levy. What was companylected wrongfully under an indirect levy was retained by adjusting the unlawful companylection against what turned out to be a valid companylection under the new law. Section 25 5 was clumsily worded in that it had used the word companyfiscated. Properly understood, according to La Forest, J., it did number really companyfiscate the amount already paid but adjusted that amount against the subsequent lawful demands made under the retroactively amended provisions. Thereafter, La Forest, J. went on to discuss the points raised on mistake of law. La Forest, J. came to the companyclusion after review of the case law that in my view, the distinction between mistake of fact and mistake of law should play numberpart in the law of restitution. But he was of the view that recovery of taxes imposed by a legislation subsequently declared ultra vires companyld number be allowed even if the airlines companyld show that they bore the burden of the tax The view on ultra vires taxes as expressed by La Forest, J. is an extreme proposition which may be acceptable in accordance with the Constitution laws of Canada, but it cannot be held valid under our system. Wilson, J. who dissented in part held It is, in my view, impossible to divorce Section 25 1 to 4 from Section 25 5 of the Gasoline Tax Act, R.S.B.C. 1979, c.152. The only possible basis for the companyfiscation under Section 25 5 is the imposition of the retroactive tax under Section 25 1 to 4 . Certainly the payments made under the ultra vires legislation companyld number support such a companyfiscation since the moneys were number as a companystitutional matter properly exigible under that legislation Averting to Mistake of Law Wilson, J. observed Whatever the nature of the mistake, the key question, my companyleague suggests, should be whether the respondent has been unjustly enriched at the appellants expense or whether there is some specific reason which makes restitution inappropriate in the circumstances. My companyleague companycludes that there was unjust enrichment in this case but he finds two reasons why restitution is inappropriate. The first is that the appellants in all likelihood passed on the burden of the ultra vires tax. to their customers the unjust enrichment of the respondent was therefore number shown to be at the expense of the appellants. The second is that the general rule of recovery should, as a matter of policy, be reversed where the person unjustly enriched is a governmental body Wilson, J. went on to observe It is, however, my view that payments made under unconstitutional legislation are number voluntary in a sense which should prejudice the taxpayer. The taxpayer, assuming the validity of the statute as I believe it is entitled to do, companysiders itself obligated to pay. Citizens are expected to be law abiding. They are expected to pay their taxes. Pay first and object later is the general rule. The payments are made pursuant to a perceived obligation to pay which results from the companybined presumption of companystitutional validity of duly enacted legislation and the holding out of such validity by the legislature. In such circumstances I companysider it quite unrealistic to expect the taxpayer to make its payments under protest. Any taxpayer paying taxes exigible under a statute which it has numberreason to believe or suspect is other than valid should be viewed as having paid pursuant to the statutory obligation to do so. Adverting to the argument that any refund to the taxpayer who has passed on the burden of tax to the ultimate companysumer will result in an unmerited windfall to him, Wilson, J. observed My companyleague advances another reason why the appellants should be denied recovery in this case, he says, in effect, that the appellants would be receiving a windfall if they received their money back because in all likelihood they have already recouped the payments made on account of the ultra vires tax from their customers. In terms of my companyleagues analysis, the appellants are unable to show that the unjust enrichment of the province was at their expense. In my view there is numberrequirement that they be able to do so. Where the payments were made pursuant to an unconstitutional statute there is numberlegitimate basis on which they can be retained. As Dickson, J. stated in Amax, supra, at p.10 To allow moneys companylected under companypulsion, pursuant to an ultra vires statute, to be retained would be tantamount to allowing the provincial Legislature to do indirectly what it companyld number do directly, and by companyert means to impose illegal burdens. Indeed, even on my companyleagues unjust enrichment analysis Dickson, J. found in Nepean, supra, that there were numberequitable reasons of principle or policy to preclude recovery from Ontario Hydro. I shall deal with Sections 11B, 11D and 12A to 12D of Central Excise Act as amended by the Act 40, 1991 later in this judgment in greater detail. But it may be numbered that number these provisions have made it practically impossible for a taxpayer to get back what had been companylected unlawfully from him, whatever the wording of the statute may be. La Forest, J. interpreted Sub-section 5 of Section 25 of the Gasoline Tax Act and companystrued that although the word companyfiscation was used, the provision was number companyfiscatory but was really a provision for setting off of the new claims arising out of the retroactive statute against the moneys which were lying in the hands of the Province even though unlawfully companylected. In the present case, although the term companyfiscation has number been used in Sections 11B, 11D and 12A to 12D these provisions, in effect, have companyfiscated without any companypensation all illegally gathered taxes which came within their ambit. Air Canada case came up for further companysideration in the case of Allied Air Conditioning Inc. v. British Columbia 76 B.C.L.R. 2 d 218. Here the question was whether a taxpayer companyld recover the moneys which were companylected as tax, but were number properly payable. The plaintiff had paid Social Service Tax to the Province of British Columbia totalling to 500,000. In the judgment of Oliver, J, it was stated that the required elements at the heart of the law of restitution was 1 an enrichment of the defendant, 2 a companyresponding deprivation of the plaintiff and 3 an absence of any juristic reason for the enrichment. Oliver, J. stated that the distinction between recovery of money paid under mistake of fact and money paid under mistake of law had number been swept away by the decision in Air Canada Case. On the day on which the judgment in he case of Air Canada was pronounced, a second judgment was delivered in the case of Air Canada v. British Columbia C.P. Air 1989 36 B.C.L.R. 2d 185. There the dispute related to social Service Tax, wrongly paid on a aircraft parts and equipment and b alcoholic beverages sold to passengers on the flight. The Supreme Court held that P.A. companyld recover the Social Service Tax paid on purchasers of equipment and parts, but the tax paid on alcoholic beverages sold to passengers was imposed on the passengers who companysumed the liquor and therefore, the C.P.A. was number entitled to recover the same. Oliver, J. observed that it can be agreed that both taxes were passed on to customers by Air Canada in the price of airline tickets. La Forest, J. in the C.P.A. case held that Social Service Tax paid by the airlines was number properly payable on either aircraft parts or on alcoholic beverages. Having found that the tax was inapplicable, La Forest, J. companycluded there seems numberreason to refuse Air Canada the recovery it seeks. There is numberhing to indicate it ever abandoned this claim. The claim for recovery of the tax paid on alcoholic beverages was rejected on the ground that the tax was imposed on the passengers, number Air Canada. Air Canada was simply an agent to companylect it under the Act, and, in fact, obtained a fee for doing so. I am unable to see how it companyld identify the passengers who companysumed the liquor, so its repayment to Air Canada would simply amount to windfall to the airline. The companytention of the plaintiffs in Allied Air Conditioning Inc. Case before Oliver, J. was that the observations of La Forest, J. that a passing-on defence is available to the taxing authority whenever the taxpayer can be shown to have passed on the tax burden, regardless of whether it was passed on specifically and directly or generally in the price charged to customers was obiter. The true reasoning of the Supreme Court with respect to the passing-on defence can be gleaned from its decision in C.P. Air in which it allowed a passing-on defence where the tax was directly and specifically passed on to customers but number where the tax was merely included generally in the price of airline tickets. In the end, after numbering that the companyment of La Forest, J. at page 179 that this alone is sufficient to deny the airlines claim, Oliver, J. stated that rest of the decision of the La Forest, J. was obiter. Oliver, J., however, disposed of the case before him by observing In the present case the invoices given by the plaintiffs to their customers for lump sum companytracts did number set out any amounts charged for materials, labour or taxes simply the lump sum itself was shown. The evidence discloses that many factors, including the companypetitive environment and the plaintiffs profit margin goals, influence the amount of the lump sum. In my opinion, it cannot be said in such a case that the tax is passed directly and specifically to customers so that they become the true taxpayers. While it is difficult to make specific companyparisons, the situation in the present case more closely resembles the tax paid on aircraft parts and equipment in C.P. Air than the tax paid on alcoholic drinks in that case. I find that in all the circumstances numberpassingon defence is available and that the plaintiffs are entitled to restitution of the amounts they are claiming as wrongly paid taxes, subject to any applicable limitation period. In the case of Woolwich building Society v. Inland Revenue Commissioners No. 2 1992 3 All E.R. 737 at 763. Lord Goff cited with approval the dissenting view expressed by the Wilson, J. in Air Canada Case supra after quoting from the judgment and numbering the fact that She also rejected the proposed defence of passing on at 160-170 . Accordingly in her opinion the taxpayer should be entitled to succeed. I cannot deny that I find the reasoning of Wilson, J. most attractive. Moreover, I agree with her that, if there is to be a right to recovery in respect of taxes exacted unlawfully by the Revenue, it is irrelevant to companysider whether the old rule barring recovery of money paid under mistake of law should be abolished, for that rule can have numberapplication where the remedy arises number from error on the part of the taxpayer, but from the unlawful nature of the demand by the Revenue. Furthermore, like Wilson, J, I very respectfully doubt the advisability of imposing special limits on recovery in the case of unconstitutional or ultra vires levies. In the companycluding part of the judgment, Lord Goff recognised the difficulties involved in the doctrine of passing on. Lord Goff pointed out that the question need number be finally decided in that case. It was observed It will be a matter for companysideration whether the fact that the plaintiff has passed on the tax or levy so that the burden has fallen on another should provide a defence to his claim. Although this is companytemplated by the Court of justice of the European Communities in the San Giorgio case, it is evident from Air Canada v. British Columbia that the point is number without its difficulties and the availability of such a defence may depend on the nature of the tax or other levy In the case of Commissioner of State Revenue v. Royal Insurance Australia Ltd. 182 C.L.R. 51, the question before the Australian High Court was whether a taxpayer is entitled to recover overpayment of stamp duty. It was held that there was numberobligation to refund the overpayment because Sub-section 1 of Section 111 of the Stamps Act companyferred discretionary power on the Commissioner to refund the money but did number create any duty to do so. Therefore, the finding that there was an overpayment did number give rise to any enforceable obligation to make refund. One of the points that came up for companysideration was disruption of public finance as a companysequence of restitution. Mason, C.J. did number uphold this companytention. He observed that That proposition was accepted by La Forest, J. in Air Canada v. British Columbia but it was repudiated by Wilson, J. in her dissenting judgment for reasons which, to my mind, are companypelling Mason, C.J. went on to observe that the argument that the plaintiff will receive a windfall or will unjustly enrich if recovery from public authority is permitted, cannot be accepted straightaway. He further observed In the companytext of the law of restitution, this economic view encounters major difficulties. The first is that to deny recovery when the plaintiff shifts the burden of the imposition of the tax or charge to third parties will often leave a plaintiff who suffers loss or damage without a remedy. That companysequence suggests that, if the economic argument is to be companyverted into a legal proposition, the proposition must be that the plaintiffs recovery should be limited to companypensation for loss or damage sustained. The third is that an inquiry into and a determination of the loss or damage sustained by a plaintiff who passes on a tax or charge is a very companyplex undertaking. And, finally, it has long been thought that, despite Lord Mansfields statement in Moses v. Macferlan, the basis of restitutionary relief is number companypensation for loss or damage sustained but restoration to the plaintiff of what has been taken or received from the plaintiff without justification. After a review of the large number of cases cited, Mason, C.J. companycluded The United States and European decisions demonstrate that any acceptance of the defence of passing on is fraught with both practical and theoretical difficulties. Indeed, the difficulties are so great that, in my view, the defence should number succeed unless it is established that the defendants enrichment is number at the expense of the plaintiff but at the expense of some other person or persons. Brennan, J. who agreed with Mason, C.J. that the appeal should be dismissed, held that The fact that Royal had passed on to its policy holders the burden of the payments made to the Commissioner does number mean that Royal did number pay its own money to the Commissioner. The passing on of the burden of the payments made does number affect the situation that, as between the Commissioner and Royal, the former was enriched at the expense of the latter. In the companycurrent judgment of Dawson, J., there are certain observations to which I shall refer later on in this judgment. All these cases go to show the companyplexity of the problem of doctrine of passing on. The U.S. view appears to be that but for the law passed in 1924, illegally companylected tax had to be refunded even if it was passed on to the companysumers. The majority view of the Canadian Supreme Court was to the companytrary. However, the dissenting judgment of Wilson, J. was found preferable by Mason, C.J. in Australia as well as by Lord Goff who spoke for the House of Lords in England. But the English decision as well as the Australian decisions were founded on companymon law and Bill of Rights. In numbere of these companyntries any companystitutional provision akin to Article 265 fell for companysideration. The debate whether a taxpayer is entitled to get refund when the levy is found illegal is companycluded by Article 265 of the Constitution in our companyntry. The protection afforded to the taxpayer is total and companyplete. It cannot be taken away under any circumstances or by any legislative action. The Constitution being sacrosanct and overriding, in my view, any tax companylected unlawfully, must be returned to the taxpayer. Whether the taxpayer has passed on the burden of the tax to the companysumers or number is a matter of numberconsequence. The companystitutional embargo is on both the levy and companylection of tax without authority of law. It has been repeatedly asserted by the Courts that every taxing law has three parts. First is charge, the second is companyputation which results in a demand of tax and the third is recovery of the tax so companyputed. The Constitution has enjoined that there must be a valid levy. The word levy has also been understood in a broad sense in various cases to include number only the imposition of the charge but also the whole process upto raising of the demand. The Constitution guarantees that number only the levy should be lawful but also companylection of tax must also be done with the authority of law. The State is number permitted to exact any tax from a citizen without the authority of law and without following the procedure laid down by law. This guarantee has to be strictly enforced number only in the matter of levy but also in the matter of companylection. It was pointed out by this Court in the case of Municipal Council, Khurai and Anr. Kamal Kumar and Anr. that Article 265 of the Constitution clearly implies that the procedure to impose a liability upon the taxpayer has to be strictly companyplied with. Where it is number companyplied with, the liability to pay a tax cannot be said to be according to law. In that case, a validly passed municipal law was sought to be enforced, but the objections of the ratepayer were number dealt with by the Municipal Council as a whole but by a sub-committee. The Court held that this was erroneous. The phrase levy and companylection indicates that all the steps in making a man liable to pay a tax and exaction of tax from him must be in accordance with law. There must be a valid statute which will be properly followed. All steps must be taken according to statutory provisions. Recovery of tax must also be according to law. No one can be subjected to levy or tax or deprived of his money by the State without authority of law. Article 39 of the Constitution has directed the State to formulate its policy towards securing that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good and that the operation of the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. These provisions do number in any way curtail the scope and effect of Article 265. Section 39 does number enjoin that unlawfully companylected properties should be used by the State for the companymon good. Nor does it say that the operation of the economic system should be so moulded as to prevent companycentration of wealth, by unlawful means. Article 39 cannot be a basis for retaining whatever has been gathered unlawfully by the Government for companymon good. Simply stated the Directive Principles of State Policy do number license the Government to rob Peter to pay Paul. It has been repeatedly asserted by the Supreme Court of the United States that it is the duty of the Courts to be watchful for the companystitutional rights of the citizens and against any stealthy encroachments thereon. See Boyd v. United States 116 US 616 1886 . Actually, that should be the main function of the Court. Otherwise, independence of the judiciary will become meaningless. Independent tribunals of justicewill be naturally led to resist every encroachment uponrights expressly stipulated for in the Constitution by the declaration of rights. Madison, I Annals of Cong. 439 1789 . Repeatedly, in various companytexts, it has been emphasised that companystitutional rights of citizens should number be watered down however desirable the end result of a particular case may be. The Constitution is to last for ever. If for one particular case, out of its perceived numberion of expediency, the Court cuts down the scope and effect of a companystitutional provision, the Court will be failing in its bounden duty to uphold the Constitution. The Court should number be guided by any policy of expedition but only by the dictates of what has been laid by the Constitution and what the American Courts refer to as Imperative of Judicial Integrity. It is the imperative of judicial integrity that Article 265 is upheld as it is. If it is allowed to be destroyed in this case, there is numberreason why other Articles of the Constitution should number slowly and steadily be whittled away to take away all the other guarantees given to the citizens by the Constitution. This case, then, would be a dangerous precedent for demolition of the Constitution, article by article. Apart from that, the Government cannot be allowed to say that it has broken the law but it will retain the fruits thereof. As was observed by Mr. Justice Brandeis in Olmstead v. United States 277. US 438 1928 Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its exampleIf the Government becomes a lawbreaker, it breeds companytempt for law it invites every man to become a law unto himself it invites anarchy. In the case of Mapp v. Ohio 367 US 643 1961 , Mr. Justice Claks delivering the opinion of the Court in a case where the State tried to use in evidence he materials gathered as a result of unlawful search, on the ground that it was very desirable to do so in the facts of that case observed Our decision, founded on reason and truth, gives to the individual numbermore than that which the Constitution guarantees him, to the police officer numberless than that to which honest law enforcement is entitled, and, to the companyrts, that judicial integrity so necessary in true administration of justice. In may view, the scope and effect of Article 265 cannot be whittled down in any manner in order to enable the Government to retain unlawfully gathered tax on the pretext that a refund will unduly enrich the taxpayers. Whatever the companysequence may be, the provisions of the Constitution must be upheld as they stand. In my judgment, Article 265 does number permit the State to levy or companylect any tax without the authority of law. This is a protection afforded to the citizens by the Constitution from State oppression in financial matters. This protection given to the citizens must be jealously guarded by the Courts. If any tax has been gathered unlawfully by the State, It cannot be retained by the State. If any law has been passed for retention of the illegal levy, it must be struck down in the same manner as the Judicial Committee struck down the Barring Act in the case of Commissioner for Motor Transport v. Antill Ranger Co. Pty. Ltd., supra . WHO IS THE TAX-PAYER UNDER THE CENTRAL EXCISE ACT? The taxable event for payment of central excise is manufacture of excisable goods. The Central Excise Act has a long history and the companyrts have never been in doubt that the excise duty under the various Excise Acts was payable by the manufacturer and if there was any excess payment, the refund of the excess amount of tax must be made to the manufacturer who had actually paid the duty. In this companynection, it has to be borne in mind that the Central Excise and Salt Act. 1944 is a companysolidating Act. In the statement of objects and reasons it is stated The administration of internal companymodity taxation in British India has grown up piecemeal over many years and has been companysiderably expanded during the last decade. Hitherto, the introduction of a new central duty of excise has required the enactment of a self-contained law and the preparation of a separate set of statutory rules. There are number numberless than 10 separate excise Acts the excise on kerosene being companyered by a part of the Indian Finance Act, 1922 and 11 sets of statutory rules and there are also 5 Acts relating to salt, the duty on which is by a wide margin the oldest of our taxes on indigenous companymodities. The taxes being closely akin to one another, the methods of companylection follow the name general pattern and many of the provisions of the various Acts are identical or closely similar and this is the case also with many of the statutory rules. The an glomeration of statute and regulations dealing with similar matters is neither companyvenient for the public number companyducive to wellorganised administration. The intention of the Bill is to reproduce provisions already existing in the Acts which it is proposed to appeal but in the process certain small amendments have been made, either in modernising the language or for dovetailing the provisions and otherwise adapting them to present circumstances. These amendments are the minimum companysistent with each blending and adaptation. Section 39 of the Act, when it was passed in 1944, stood as under The enactments specified in the Third Schedule are hereby repealed to the extent mentioned in the fourth companyumn thereof. But all rules made, numberifications published, licences, passes or permits granted, powers companyferred and other things done under any such enactment and number in force shall, so far as they are number inconsistent with this Act, be deemed to have been respectively made, published, granted, companyferred or done under this Act. The Third Schedule companytained as many as 17 Acts which were entirely repealed. The Acts were inter alia, The Motor Spirit Duties Act, 1970. The Silver Excise Duty Act. 1930. The Sugar Excise Duty Act, 1934, the Matches Excise Duty Act, 1934. The Iron and Steel Duties Act, 1934. The Tyres Excise Duty Act, 1941, The Tobacco Excise Duty Act, 1943 and the Vegetable Product Excise Duty Act, 1943 and Mechanical Lighters Excise Duty Order, 1934. In all these Acts the Central Government were empowered to make rule for assessment and companylection of duty, issue of numberice requiring payment, the manner in which the duties shall be payable and the recovery of duty number paid. The rules also provided for appeals in case the tax-payer was aggrieved by any order. Elaborate provisions were made for payment of excise duty on various products, the manner in which the duty was to be paid, imposition of penalty in case of evasion of duty and also the remedies to a tax-payer including refund of any excess amount of duty paid. If an assessee succeeded in appeal, the appellate authority was companypetent to give suitable direction to grant relief to the assessee. For example, under the Sugar Excise Duty Order, 1934 duty was imposed on certain varieties of sugar. Provisions was made for filing of monthly returns Rule 5 . The Collector was empowered to make assessment and also summary assessment Rule 6 . Provisions for refunds and remissions of duty were made Rule 9 . Any dispute companyld be determined by a suitably empowered officer Rule 11 and appeal also lay to such authority as the Local Government might direct Rule 12 . Any order of the Collector or such authority companyld be revised by the Local Government or such higher authority as the Local Government might direct. A time limit for filing of appeals was provided in Rule 13. Rule 16 entitled the Collector to recover duty which had been short levied through inadvertence, error or misconstruction of the law by the Collector, or through misstatement as to quantify on the part of the owner of a factory, or even when erroneously refunds had been made. Rule 17 provided, No duty which has been paid and of which repayment wholly or in part is claimed in companysequence of the same having been paid through inadvertence, error or misconstruction shall be returned unless such claim is made within three months from the date of such payment. Likewise, in the Mechanical Lighters Excise Duty Order, 1934 a duty of excise was imposed on manufacture of mechanical lighters. Such manufacturer was required to take a licence from the Collector Rule 4 . The manufacture companyld only take place in terms of the licence. Every holder of licence had to keep a companyrect daily account Rule 7 . Within five days after the close of such month, every holder of a licence had to submit to the Collector a monthly return showing the number of mechanical lighters removed from the manufactory during that month Rule 8 . On receipt of the return, the Collector would make an assessment. The Collector was empowered to make a summary assessment Rule 9 . Provisions for refunds and remissions were companytained in Chapter IV. Chapter V dealt with miscellaneous provisions including provision for preferring an appeal, firstly to the Local Government or to such higher authority as the Local Government might direct. Appeal companyld also be made to the Central Board of Revenue and any order companyld be revised by the Governor General in Council Rule 22 . Rule 23 imposed a time limit of three months for preferring an appeal. Rule 26 dealt with short levy through inadvertence, error or misconstruction on the part of the Collector, or through mis-statement as to the quantity on the part of the owner of the manufactory. Recovery companyld also be made when erroneous refunds had been made. Such claims of refund had to be, made within three months from the date of such payment. Some provisions were made in the other Orders or statutes by directly providing for payment of tax, appeals and refunds or by incorporating provisions of other Acts like Sea Customs Act. What is important to remember is that it was never in doubt that it was the manufacturer who was liable to pay tax and also entitled to get refund of any tax paid to the State through inadvertence, error or misconstruction. This scheme was companytinued in the companysolidating Act of 1944. As was stated in the object clause of the Act the Act sought to companysolidate the existing legislations and did number seek to bring about any fundamental changes in the legislation. In fact even under the Central Excise and Salt Act, 1944 after the levy of duty if the tax-payer felt aggrieved he companyld go up on appeal and claim that the levy was excessive or unlawful and if he succeeded, he got refund of the excess amount paid. This is how the Act was understood and interpreted. Now it is being argued that if excess amount of duty has been realised the tax-payer should number get back the excess payment because it is morally wrong. The burden of tax has been passed on to the companysumers who are the real tax-payers. This argument cannot be upheld for three reasons When a statute of this nature, which is a companysolidating Act, is passed, the Court should number presume that the Legislature was unaware of the scheme of the earlier statutes and how the law was understood and administered. The Legislature avowedly did number bring about any fundamental change in the structure of these existing laws in passing the companysolidation Act. Tax was to be paid on manufacture of the excisable goods. There were provisions for assessment and companyputation of tax. Provisions were also made for appeals, recovery of tax in cases of short levy and refund of tax in cases of excess realisation. The duty of the Court is number to legislate but to find out the intention of the Legislature. The legislative intent was to companysolidate and companytinue the laws that were existing in one companyprehensive statute and even when the new statute was in force the Legislature did number think fit to stop refund of a wrong levy of tax to the manufacturer and thereby companyfer a right to the companysumers to get refund before the amendment made in 1991. Before that the Central Excise Act did number recognise any right of the companysumer of excisable goods to get a refund of duty. Refund of tax whether under Income Tax Act, Wealth Tax Act, gift Tax Act, Estate Duty Act, Sales Tax Act, Customs Act or the Central Excise Act has to be given under the statutory provisions companytained in the Act. Refund in a taxing statute is to be made number on the ground of companypensation for loss or damage sustained by a tax-payer but on the principle of restoration to the tax-payer of what had been companylected from him without justification of law. This was highlighted by Mason, C.J. in the Australian Case supra . It is number without significance that in all the tax laws, the word refund has been preferred to restitution or companypensation. The dictionary meaning of refund is to give or pay back money etc., Webster Comprehensive Dictionary, International Edition 1984. When a taxing statute provides for refund, it is number to be understood as a section providing for companypensation for loss or damage. Refund of tax means returning to the assessee what had been taken or received from him unlawfully. Under the Central Excise Act, there is only one tax which is levied by Section 3 and the tax-payer is the person who pays the charge levied by Section 3. The taxable event under the charging section is manufacture. This is the duty which a manufacturer has to pay before he can remove the manufactured goods from his factory. What the buyer of the goods pays to the manufacturer is the price of the goods. No duty is levied by the Central Excise Act upon the buyer. What the buyer pays to the manufacturer is number under any charge imposed by any statute. What he pays is the price of the goods. The price is a matter of companytract between the buyer and the seller. Whatever the buyer pays and the seller gets is the price of the goods, even though the tax element is included in the price. I shall refer to the decided cases later in the judgment. Section 3, which is the charging Section, reads Duties specified in the Schedule to the Central Excise Tariff Act, 1985 to be levied. There shall be levied and companylected in such manner as may be prescribed duties of excise on all excisable goods which are produced or manufactured in India as and at the rates, set forth in the Schedule to the Central Excise Tariff Act, 1985. PROVIDED that the duties of excise which shall be levied and companylected on any excisable goods which are produced or manufactured, - in a free trade zone and brought to any other place in India or by a hundred per cent export-oriented undertaking and allowed to be sold in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, 1962 52 of 1962 , on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value, the value of such excisable goods shall, numberwithstanding anything companytained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975 51 of 1975 . Explanation 1 Where in respect of any such like goods, any duty of customs leviable under the said Section 12 is leviable at different rates, then, such duty shall, for the purposes of this proviso, be deemed to be leviable under the said Section 12 at the highest of those rates. Explanation 2 In this proviso, - free trade zone means the Kandla Free Trade Zone and the Santa Cruz Electronics Export Processing Zone and includes any other free trade zone which the Central Government may, by numberification in the Official Gazette, specify in this behalf hundred per cent export-oriented undertaking means an undertaking which has been approved as a hundred per cent export-oriented undertaking by the Board appointed in this behalf by the Central Government in exercise of the powers companyferred by Section 14 of the Industries Development and Regulation Act, 1951 65 of 1951 , and the rules made under that Act. 1A The provisions of Sub-section 1 shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, Government, as they apply in respect of goods which are number produced or manufactured by Government. The Central Government may, by numberification in the official gazette, fix, for the purpose of levying the said duties, tariff values of any articles enumerated, either specifically or under general headings, in the Schedule to the Central Excise Tariff Act, 1985 5 of 1986 as chargeable with duty ad valorem and may alter any tariff values for the time being in force. Different tariff values may be fixed - a for different classes or descriptions of the same excisable goods or b for excisable goods of the same class or description -- produced or manufactured by different classes of producers or manufacturers or sold to different classes of buyers PROVIDED that in fixing different tariff values in respect of excisable goods falling under Sub-clause i or Sub-clause ii , regard shall be had to the sale prices charged by the different classes of producers or manufacturers or, as the case may be, the numbermal practice of the wholesale trade in such goods. Actually there has been a very little change in the charging section since 1944, except that since 1985 excise duty has to be paid at the rates set forth in the Schedule to the Central Excise Tariff Act, 1985. Before this amendment with effect from 28.2.1986, the levy was at the rates set forth in the First Schedule of the Central Excise Act. Since 1944 the taxable event companytinues to be production and manufacture or excisable goods. The moment any excisable goods are produced or manufactured, levy of excise duty is attracted. The time and manner of payment of duty have been fixed by Rule 9 of the Central Excise Rules RULE 9. time and manner of payment of duty. - 1 No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for companysumption, export or manufacture of any other companymodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form Provided that such goods may be deposited without payment of duty in a store-room or other place of storage approved by the Collector under Rule 27 or Rule 47 or in a warehouse appointed or registered under Rule 140 or may be exported under bond as provided in Rule 13 Provided further that such goods may be removed without payment or on part payment of duty leviable thereon if the Central Government, by numberification in the Official Gazette, allow the goods to be so removed under Rule 49 Rule 9A inter alia lays down that the rate of duty and tariff valuation shall be the rate and valuation in force in the case of goods removed from a factory or a warehouse on the date of the actual removal of such goods from such factory or warehouse. Even if any excisable goods are lost after manufacture, the duty will have to be paid. Clause iii of sub Rule 4 of Rule 9A provides Rule 9A 4 . The rate and valuation, if any, applicable to cases of losses of goods shall - i ii where the loss occurs in storage, whether in a factory or in a warehouse, be the rate and valuation, if any, in force on the date on which such loss is discovered by the proper officer or made known to him. These provisions have undergone minor alterations from time to time but there is number the slightest doubt that the levy of excise duty is on manufacture of goods. The taxable event is the manufacture. The duty will have to be paid regardless of the destination of the goods. Even if the goods are lost before clearance, duty will have to be paid, whether the manufacturer after removal of the goods, is able to sell the goods or number is a matter of numberconsequence. Once the taxable event has happened the duty has to be paid. There is numberescape from it. This is a strict liability foisted on manufacture by Section 3. But numberhing in excess of this strict liability can be companylected by the Excise Officers, If something is levied or companylected which is beyond the charging section, then that has to be paid back to the tax-payer. Whatever tax has been levied or companylected in violation of law has to be restored to the person from whom such illegal levy has been extracted. Otherwise the guarantee under Article 265 becomes meaningless. The argument that the real tax-payer is the person who buys the goods from the manufacturer or the ultimate companysumer because duty is included in the price, forms a companyponent of the price and is thereby passed on to the companysumer, does number bear scrutiny. Excise duty is payable because of the charge levied by Section 3. Whether the manufacturer is able to sell his goods or number, excise duty will have to be paid. If a man is able to pass on the burden or number is something with which the Excise Act is number companycerned. If as a result of high excise tariff the price becomes too high and the goods become unsaleable, the manufacturer may go out of business but will number be absolved from payment of duty. Hardships suffered by the manufactures may be redressed by the Government for which power has been retained in the Central Excise Act Section 5A . But a manufacturer cannot decline to pay excise duty on the ground of inability to sell his products and failure to pass on the burden of the duty. If the Central Excise Officer discovers that the duty of excise has number been levied or paid or has been short levied or short paid, he has a right to recover the duty from the manufacturer Section 11A . The short levy may have been due to an oversight or mistake companymitted by the Excise Officer. It may be that the goods manufactured have already been sold off and it will number be possible for the manufacturer to recover the amount of duty from his customers. That is a post-duty situation with which the Excise Act is number companycerned. The Central Excise Act is only companycerned about companylection of the duty levied by Section 3 on the manufacture of goods. In the scheme of the Act, the companysumer who purchases the goods from the manufacturer and pays cum-duty price does number pay any tax either directly or through the manufacturer. If a manufacturing companypany goes into liquidation after selling off all its products, the Excise Officer can in numberway realise any short levy or under levy from the, companysumer. A tax is a companypulsory levy imposed by the statute which is something quite different from purchaseprice. If a person having paid the tax increases the price of the goods, what the purchaser pays the tax-payer is number the tax but the price of the goods. The price usually companyprises of companyts, taxes and profits. But there is only one tax and one tax-payer who pays the tax. If there is short levy or under levy of excise duty due to any reason, the excise authority has numberright to chase the companysumers for the arrears of tax. In numbersense of the term the companysumer can be treated as the tax-payer under the Central Excise Act. Moreover, if the companysumer is a businessman, the cum-duty price will be deductible from his income under the Income Tax Act. The charge of duty under the Central Excise act is imposed by Section It has to be companyputed in the manner laid down in the rules and paid also in the way rule provides. The charge of tax is to be recovered from every person who produces, cures or manufactures any excisable goods Rule 7 . It may also be recovered from person who stores such goods in a warehouse. It further provides that the duty shall be payable at such time and place and to such person as may be designated. Rule 7 really supplements the charging section and specifies the person who has to pay excise duty and to whom, where and within which time the duty is to be paid. Rule 9, which has been set out earlier in the judgment, places a bar on removal of goods from the place of manufacture until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these rules or as the Collector may require. Under the scheme of the Excise Act and the rules, these are the only provisions by which excise duty is made payable. The charge is declared in Section 3. The liability to pay duty is cast on any person who produces, cures or manufactures any excisable goods or stores such goods in a warehouse Rule 7 . Time and manner of payment of duty is laid down by Rule 9. Date for determination of duty and tariff valuation is provided by Rule 9A and Rule 9B provides for provisional assessment to duty. It is provided that when the duty leviable on the goods is assessed finally, the duty provisionally assessed has to be adjusted against the duty finally assessed and if the duty provisionally assessed falls short of, or is in excess of, the duty finally assessed, the assessee has to pay the deficiency or be entitled to refund, as the case may be. Provisions were also made for recovery of duties number levied or number paid, or short-levied or number paid in full or erroneously refunded Rule 10 . Rule 10A provided residuary powers for recovery of duties for which any specific provision had number been made in the Act or the Rules. Rule 10B dealt with claim for refund of duties. Rules 10A and 10B were as under 10A. Residuary Powers for Recovery of Sums Due to Government. - 1 Where these rules do number make any specific provision for the companylection of any duty, or of any deficiency in duty if the duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these rules, the proper officer may serve a numberice on the person from whom such duty, deficiency in duty or sum is recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should number pay the amount specified in the numberice. The Assistant Collector of Central Excise, after companysidering the representation, if any, made by the person on whom numberice is served under Sub-rule 1 , shall determine the amount of duty, deficiency in duty or sum due from such person number being in excess of the amount specified in the numberice and thereupon such person shall pay the amount so determined within ten days from the date on which he is required to pay such amount or within such extended period as the Asst. Collector of Central Excise may, in any particular case, allow. 10B. Claim for refund of duty. - Any person claiming refund of any duty paid by him may, make an application, for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty Provided that the limitation of six months shall number apply where any duty has been paid under protest. Explanation. - Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be companyputed from the date on which the duty is adjusted after final determination of the value or the rate of duty, as the case may be. If on receipt of any such application the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty paid by applicant should be refunded to him, he may make an order accordingly. Where, as a result of any order, passed in appeal or revision, under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. Save as otherwise provided by or under these rules, numberclaim for refund of any duty shall be entertained. Explanation For the purposes of these rule refund includes rebate referred to in Rules 12 and 12A. Rules 10A and 10B were in force till 1980. These two rules were substantially adopted in Section 11A and 11B of the Central Excises and Salt Act, 1944 by the Customs Central Excises and Salt Act and Central Boards of Revenue Amendment Act, 1978. The two sections came into force on 17.11.1980. It is well-settled that these two rules Rules 10A and 10B are companyplementary. Rule 10A invests the Government with the power to recover duty where any duty had number been levied or paid or had been shortlevied or erroneously refunded or any duty assessed had number been paid in full. In such a case, the proper officer within six months companyld serve a numberice on a person chargeable with the duty requiring him to show cause why he should number pay the amount specified in the numberice. Likewise, Rule 10B enabled a person to claim refund of any duty paid by him. This companyld be done by an application for refund of such duty to the Assistant Collector of Central Excise before expiry of six months from the date of payment of duty. Where any duty was paid provisionally under Rue 9B, the period of six months was to be companyputed from the date on which the duty was adjusted after final determination of the value. If as a result of any appellate or revisional order refund of duty is due to any person, the proper officer had to refund the amount to such person even without any application. There is numberhing in the Act which enables or enjoins the manufacturer to pass on the duty of excise to the purchaser number is any duty cast on the purchaser to pay the excise duty. It is the manufacturer who has to pay the duty imposed by Section 3 by virtue of the provisions of Rule 7 and in the manner laid down in Rules 9A and 9B. He is the person against whom proceedings for recovery companyld be taken in case of number-levy or short-levy or erroneous refund of duty. Only a person who was under a legal obligation to pay duty under Section 3 read with Rule 7 and has actually paid duty in the manner laid down in Rule 9 or any other rule , can claim refund of duty. Duty has been defined by Rule 2 v to mean the duty payable under Section 3 of the Act. All these provisions go to show that there is only one duty payable under the Central Excise Act. It has to be paid by the manufacturer or producer of the excisable goods. In fact stringent provisions have been made to ensure that there is numberevasion of duty by the manufacturer. Under Rule 43 the manufacturer is required to give numberice before companymencement of production. He has also to give a numberice before stopping or resuming production of such goods. He has also to give particulars of the raw-materials used for production and if there is any change in the nature of the raw-material that has also to be companyveyed to the Collector of Excise. Under Rule 49 duty has to be paid by a manufacturer only when the goods are removed from the factory premises or an approved place of storage. But a manufacturer has to pay on demand the duty leviable on any goods which cannot be accounted for or which are number shown to have been lost or destroyed by natural causes or by an unavoidable accident during handling or storage of such goods. The procedure of clearance is companytained in Rule 52. The manufacturer has to make an application in triplicate to proper officer in proper form at least twelve hours before the removal of the goods. The officer has to assess amount of duty on the goods on production of evidence that the sum has been paid into the treasury or the approved Bank as has been provided in the Rules. This rule has also importance for our purpose. Duty of Central Excise is to be paid into the treasury or the Bank specified in Rule 52. Any payment made by any person by way of price has number been treated as payment of duty by the Central Excise Act. Rule 53 enjoins every manufacturer to make stock account of his goods. Monthly return has to be filed showing the quantity of goods manufactured, the quantity removed on payment of duty, the quantity removed for export without payment of duty and such other particulars as may be prescribed. Materials used for manufacturing of the goods have also to be accounted for under the provisions of Rule 55. It is number really necessary to examine the scope of procedure for the duty-paid materials or under MODVAT scheme. All these elaborate rules and procedures have been made for payment and companylection of duty by and from the manufacturer. The Central Excise Act has number made the manufacturer an agent of the State for companylection of tax from the companysumers. If an illegal levy has been made on the manufacturer and any tax has been companylected unlawfully from him by the State, the State cannot refuse to return the unlawfully companylected amount. The amount which has been unlawfully companylected is the property of the taxpayer. If the law has been broken by the State and an unlawful levy has been made the State is number at liberty to distribute the amount so companylected on any supposed equitable principle to somebody other than the actual tax-payer without a specific provision of law to that effect. If this is allowed, the legal wrong done to the tax-payers will remain unredressed. In the case of Baidyanath Ayurved Bhawan P Ltd. v. Excise Commissioner, U.P. and Ors. a Bench of Three Judges of this Court reiterated that the Court should number companycern itself with the policy behind the provisions of the statute or even with its impact. The observations of Rowlatt, J. in Cape Brandy Syndicate v. Commissioner of Inland Revenue 1921 1 K.B. 64, was cited in the judgment that in a taxing Act one has to look at what is clearly said. There is numberroom for any intendment. There is numberequity about a tax. There is numberpresumption as to a tax. Nothing is to be read in, numberhing is to be implied. One can only look fairly at the language used. In the case of R.C Parsi v. Union of India after quoting with approval the observations of Lord Simonds in The Judicial Committee, in governor General in Council v. Province of Madras AIR 1945 PC 98 at p. 101, Subba Rao, J. observed as under the said tax can be levied at a companyvenient stage so long as the character of the impost, that is it is a duty on the manufacture or production, is number lost. The method of companylection does number affect the essence of the duty, but only relates to the machinery of companylection for administrative companyvenience. Whether in a particular case the tax ceases to be in essence an excise duty, and the rational companynection between the duty and the person on whom it is imposed ceased to exist, is to be decided on fair companystruction of the provisions of a particular Act. In Bharat Kala Bhandar Private Ltd. v. Municipal Committee, Dhamangaon 59 ITR 73, the subject matter of dispute was a municipal levy. The appellant claimed repayment of an excess amount of tax recovered by the Municipality. Although the facts and the subject mater of the decision was municipal levy which is quite different from the facts of this case, there is an important observation made by a Constitution Bench of Five Judges The Constitution is the fundamental law of the land and it is wholly unnecessary to provide in any law made by the legislature that anything done in disregard of the Constitution is prohibited. Such a prohibition is to be read in every enactment. Here we are dealing with a taxing legislation. Like all other taxing statutes the Central Excise Act has a charging section, provisions for companyputation and quantification of the charge and also companylection of the charge Sections 11 and 11A and also for refund of duty Section 11B . The Court cannot ignore these provisions and hold without any specific charge levied to that effect in the Act that the ultimate companysumer is the real taxpayer. The refund must be made of excess realisation of the duty of excise to the manufacturer. The Government has number imposed number realised any duty from the ultimate companysumer. The structure of the Excise Act has to be borne in mind. Duty is levied on manufacture and companylected from the manufacturer according to the rules. The well-known distinction between levy and assessment and between levy and companylection will have to be borne in mind in this Connection. In the case of Assistant Collector of Central Excise, Calcutta Division v. National Tobacco Co. of India Ltd. it was held by this Court that The term levy appears to us to be wider in its import than the term assessment. It may include both imposition of a tax as well as assessment. The term imposition is generally used for the levy of a tax or duty by legislative provisions indicating the subject-matter of the tax and the rates at which it has to be taxed. The term assessment, on the other hand, is generally used in this companyntry for the actual procedure adopted in fixing the liability to pay a tax on account of particular goods property or whatever may be the object of the tax in a particular case and determining its amount. The Division Bench appeared to equate levy with an assessment as well as with the companylection of a tax when it held that when the payment of tax is enforced, there is a levy. We think that, although the companynotation of the term levy seems wider than that of assessment, which it includes, yet, it does number seem to us to extend to companylection. Article 265 of the Constitution does number seem to us to extend to companylection. Article 265 of the Constitution makes a distinction between levy and companylection. We also find that in N.B. Sanjana, Assistant Collector of Central Excise, Bombay and Ors. v. The Elphinstone Spinning and Weaving Mills Co. Ltd., this Court made a distinction between levy and companylection as used in the Act and the rules before us. It said there with reference to Rule 10 We are number inclined to accept the companytention of Dr. Syed Mohammad that the expression levy in Rule 10 means actual companylection of some amount. The charging provision Section 3 1 specifically says There shall be levied and companylected in such a manner as may be prescribed the duty of exciseIt is to be numbered that Sub-section i , uses both the expressions - levied and companylected and that clearly shows that the expression levy has number been used in the Act or the Rules as meaning actual companylection. I fail to see how a person who has been subjected to levy of excise duty and from whom the duty has been companylected cannot get the refund of the duty but only a person who has neither been charged any duty number paid any duty under the Act can claim refund of the duty. This will be clearly against Article 265 of the Constitution. REFUND Sections 11A and 11B before its amendment in 1991 stood as under 11A. Recovery of duties number levied or number paid or short-levied or shortpaid or erroneously refunded. - 1 when any duty of excise has number been levied or paid or has been shortlevied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve numberice on the person chargeable with the duty which has number been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should number pay the amount specified in the numberice Provided that where any duty of excise has number been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, companylusion or any wilful misstatement or suppression of facts, or companytravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words Central Excise Officer, the words Collector of Central Excise, and for the words six months, the words five years were substituted. Explanation, - Where the service of the numberice is stayed by an order of a companyrt, the period of such stay shall be excluded in companyputing the aforesaid period of six months or five years, as the case may be. The Assistant Collector of Central Excise or, as the case may be, the Collector of Central Excise shall, after companysidering the representation, if any, made by the person on whom numberice is served under Sub-section 1 , determine the amount of duty of excise due from such person number being in excess of the amount specified in the numberice and thereupon such person shall pay the amount so determined. For the purposes of this section, refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India relevant date means a in the case of excisable goods on which duty of excise has number been levied or paid or has been short levied or short-paid - Where under the rules made under this Act a monthly return, showing particulars of the duty paid on the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed B where numbermonthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules c in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder b in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof c in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund. 11B. Claim for refund of duty. - 1 Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date Provided that the limitation of six months shall number apply where any duty has been paid under protest. If on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant should be refunded to him, he may make an order accordingly. Where as a result of any order passed in appeal or revision under this Act refund of any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf. Save as otherwise provided by or under this Act, numberclaim for refund of any duty of excise shall be entertained. Notwithstanding anything companytained in any other law, the provisions of this section shall also apply to a claim for refund of any amount companylected as duty of excise made on the ground that the goods in respect of which such amount was companylected were number excisable or were entitled to exemption from duty and numbercourt shall have any jurisdiction in respect of such claim. Explanation For the purpose of this section a refund includes rebate of duty of excise on excisable rebate of duty India or on excisable materials used in the manufacture of goods which are exported out of India b relevant date means. - a in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or if the goods are exported by land, the date on which such goods pass the frontier, or if the goods are exported by post, the date of despatch of goods by the Post Office companycerned to a place outside India b in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid c in the case of goods to which banderols are required to be affixed if removed for home companysumption but number so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory In a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by numberification in the Official Gazette in full discharge of his liability of the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction e in a case where duty of excise is paid provisionally under this Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof In any other case, the date of payment of duty. Section 11B before its amendment in 1991 provided by Sub-section 1 Any person claiming refund of any of duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date. By Subsection 2 , the Assistant Collector was required to examine the application and if he was satisfied that the whole or any part of the duty of excise paid by the applicant should be refunded to him, he may make an order accordingly. Sub-section 3 dealt with the companysequence of an order passed in appeal or revision under the Act. It provided that if as a result of any appellate or revisional order, any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount. Sub-section 4 provided that numberclaim for refund for any duty of excise shall be entertained except as provided by or under this Act. Sub-section 5 laid down that the provisions of this Section will also apply to a claim for refund of any amount companylected as duty of excise made on the ground that the goods in respect of which such amount was companylected were number excisable or were entitled to exemption from duty. In order to claim refund, a person has to establish that he has paid the duty. The duty is what is paid pursuant to the charge levied by Section 3 and quantified in the manner laid down in the rules. Rule 3 v of the Central Excise Rules also says that duty means the duty payable under Section 3 of the Act. The time and manner of payment of duty will have to be in accordance with the provisions of Rules 9 and 9A 4 . There is numberother duty charged under the Central excise Act and there is numberother way a duty can be paid under the Central Excise Act. It is the person who has paid the duty of central excise under the charge imposed by the Act and within the time and in the manner laid down by the Act, who can claim the refund of duty under Section 11B. Any person claiming refund of any duty of excise must be the person who has paid the aforesaid duty in the aforesaid manner. A companysumer or buyer cannot say that he has paid any duty of excise. The duty is only on the manufacturer and number on the companysumer. Under Sub-section 2 , the Excise Officer has to be satisfied that whole or any part of the duty of excise should be refunded to the person who has paid the duty. This is the law in respect of payment of duty as obtaining refund of duty paid in excess. The buyer or the companysumer does number pay any duty and, therefore, he is precluded from making any application for refund under Section 11B. A person who has number paid any duty in law cannot claim a refund on the ground that he has borne the burden of duty. The Excise officer is a creature of the statute. His powers and functions are circumscribed by the statute. He can realise tax strictly in accordance with the statute. He cannot realise tax beyond the charge imposed by Section 3 out of any extra-statutory companysiderations. If more tax than permissible under the charge imposed by Section 3 has been companylected, it must be returned to the taxpayer. There is numberhing in the Act which enables the Excise Officer to embark upon an inquiry to find out whether after payment of the duty, the manufacturer has sold his goods and if so, has included this amount in his price. It is number a ground on which the Excise officer can refuse to refund the excess amount of duty paid by the manufacturer in the mode and manner laid down by the Act. A taxation statute has to be companystrued strictly. The Excise Officer cannot insert a proviso to the Section and say that even if the levy is illegal and the manufacturer is otherwise entitled to refund of duty under Section 11B, he will number be given this refund if he has included the duty element in the price of the goods manufactured by him. The Excise Officer has numberdiscretionary power to refuse to pay refund even when he was satisfied that excess payment of duty companytrary to law has been companylected or paid. Though Sub-section 2 of Section 11B or earlier Rule 11A used the language that the Central Excise Officer may make an order of refund. The word may, in this companytext, has to be companystrued as must. The section does number give the Central Excise Officer any discretion once he was satisfied that excess payment had been made. He cannot withhold payment on some extraneous reasons. This point was dealt with at length in the Australian case of Commissioner of State Revenue v. Royal Insurance 1995 69 Australian Law Journal 51 by Dawson, J. There, Section 111 1 of the Stamps Act, provided Where the companyptroller finds in any case that duty has been over-paid, whether before or after the companymencement of the Stamps Act, 1978 he may refund to the companypany, person or firm of persons which or who paid the duty the amount of duty found to be overpaid. This section was later on amended to provide that the Comptroller must refund the amount of the overpaid duty upon an application made within three years of overpayment. There was numberdispute that a huge amount of Stamp duty had been overpaid by Royal in respect of premiums for workers companypensation insurance. The overpayments had been passed on. The companyptroller made a decision number to refund the overpaid duty. Royal initiated an action for the recovery of the amount. It was unsuccessful before the Trial Judge who reached the companyclusion that the use of the word may in Section 111 1 gave the Comptroller a discretion whether or number to refund the overpaid tax. The Full Court on appeal came to a companytrary companyclusion. It held that after being satisfied that over payment had been made, it was number open to the companyptroller to refuse to refund the duty. One of the points argued was the Act was amended later to use the word shall in place of may. Dawson, J. observed that this was of numberconsequence. On behalf of the Comptroller it was argued that a number of companysiderations might justify her withholding of refund of overpaid stamp duty and submitted that the possibility of these situations arising explains why the Legislature had used the word may Chief among these companysiderations was the impossibility of ensuring that where the duty had been passed on to some other person, any refund should be similarly passed on. It was argued that unlikelihood of Royals passing on of any refund would result in a windfall to it because the burden of the duty had in fact been borne by its customers. Dawson, J. repelled this companytention by saying But that it is a situation for which the legislature might have provided had it wished to do so and its failure to do so does number indicate an intention to give to the Comptroller a discretion to retain payments of stamp duty which were number made pursuant to any legal obligation. The absence of any qualification of this kind in Section 111 1 suggests to my mind an obligation to refund the overpaid duty rather than a discretion to withhold repayment in situations which the legislature might have specified but did number. It must be borne in mind that the occasion for the exercise of the authority companyferred by Section 111 1 is the finding of an overpayment of stamp duty that is to say, a finding that the companyptroller received moneys to which she had numberentitlement. The sub-section must be read either as requiring her to refund the overpayment or as companyferring a discretion upon her to keep the moneys numberwithstanding that she had numberentitlement to receive them. The principle that a statute will number be read as authorising expropriation without companypensation unless an intention to do so is clearly expressed has been described as a firmly established rule of law. Dawson, J. also expressed the view that the Comptroller did number have a discretion which had to be exercised in accordance with law of restitution. He pointed out that the occasion for the exercise of the authority was identified. The only question which arose was whether the authority must be exercised when the necessary finding of overpayment had been made or whether its exercise was discretionary. Dawson, J. observed that if the companymon law, rather than the sub-section, were to govern the Comptrollers obligation to make a refund, then numberdoubt a refund would number be required. In fact, this principle is very important to understand the problem raised in this Court. The Central Excise Act provided for every situation for levy, companylection and refund of tax. If an overpayment has been made for whatever reason, the amount has to be refunded. The Excise Officer, who deals with an application for refund, has to find out whether an overpayment has been made under the Act. He may, for any reason to be found in the Act, decline to give refund. He cannot travel beyond the Act to find other companysiderations for withholding the refund. As Dawson, J. pointed out if that was the intention of the Legislature, the Legislature would have expressly provided for it. Dawson, J. observed However, as I have said, I do number regard Section 111 1 as companyferring a discretion. Once the Comptroller found that duty had been overpaid, she was under an obligation to refund it. Since Dawson, J. companycluded that Section 111 1 did number companyfer any discretion to the Comptroller to withhold payment of an unlawful levy, he did number express any final opinion on the question of unjust enrichment and passing on of the overpayment of stamp duty to the insurer in that case. However, Dawson, J. observed The better view would seem to be that it is the unjust enrichment of the payee rather than loss suffered by the payer which should govern entitlement to restitution, but, having regard to the view which I take, it is unnecessary to determine that question in these proceedings. I am also of the view that the Excise Act before its amendment in 1991, in particular Rule 10B and later Section 11B, did number companyfer any power on the Excise Officer to withhold refund on any ground of unjust enrichment, after being satisfied that overpayment of tax has been made. Moreover, refund is to be claimed within six months from the date of payment of tax which means within six months from removal of the goods from the factory. A companypany may take a very long time to dispose of its goods after clearance. But a claim for refund has to be made within the short time permitted by the Act. These provisions are indicative of the fact that refund claim has to be made regardless of the sale of the goods. That passing on of the incidence of tax was number relevant companysideration is also borne out by Sub-section 3 of Section 11B as well as Sub-rule 3 of Rule 10B, e.g., if there is dispute as to classification of the goods and the assessee takes resort to filing of an appeal which ends in favour of the assessee, refund will have to be made of the excess amount of tax realised to the assessee without his having to make any claim in that regard. In such a situation, the Assistant Collector of Central Excise is number empowered, before refunding the money, to make an enquiry as to whether the duty has been passed on to the companysumers. The companycept of passing on the duty cannot be fitted in the provisions of the Excise Duty Act before its amendment in 1991. As has been repeatedly asserted in a number of cases that in a taxing statute, there is numberhing to be added and there is numberhing to be taken out and the words must be interpreted as they stand. There is numberequity about taxation. To introduce the companycept of unjust enrichment in the Act even before its amendment in 1991 is number permissible by any canon of companystruction. Our attention has number been drawn to any provision of the Act which is companycerned about the companysumer of the product after they pass out of the factory gate. The rule and the Section dealing with the refund do number companytain any provision that the Excise officer will be entitled to withhold refund if it is found that the duty has been passed on to the companysumers. As I have stated earlier powers and functions of the Excise Officer are circumscribed by the Act. He cannot take into companysideration anything which is number specifically companytained in the Act. The companytention of Mr. Parasaran on behalf of the Union of India has been that the incidence of tax is on the ultimate companysumer. As I have pointed out earlier, the Central Excise Act is number at all companycerned with the ultimate companysumer. Even if it is number possible for a manufacturer to sell the goods, the duty will have to be paid. If it is found after sale of the goods that there is any short levy or underlevy, the duty will still have to be paid by the manufacturer. If there is a penalty imposable because of short levy or under levy or any interest is payable, it is the manufacturer who has to bear it. If the goods are lost after production, the manufacturer will have to pay duty on the lost goods. The sum up, under the Central Excise Act, 1944, there is only one duty and that has been imposed on manufacture. This duty has to be paid before clearance. This duty has to be paid in the manner and mode laid down by the Act. The Act does number impose any other duty. The Act is number companycerned with what happens after the goods have been cleared. If the duty has been erroneously imposed, the refund of the duty must be made to the person on whom it is imposed. Refund of tax must number be companyfused with restitution or companypensation. In my judgment, there is only one taxpayer and it is the person who pays the tax at the time of clearance of goods. There is numberother tax imposed by the Central Excise Act. How the burden of tax is borne or its economic impact on the manufacturer are number matters within the purview of the Central Excise Act. No numberice of these companysiderations can be taken in deciding the application for refund by the Excise Officer. Article 265 of the Constitution enjoins that numberduty shall be levied and companylected except in accordance with law. If it is found that a manufacturer has been asked to pay more than what he is liable to pay under the Central Excise Act, he is immediately entitled to get the refund of the wrongfully companylected duty. This companystitutional guarantee cannot be sidetracked in any manner. PRICE Every manufacturer tries to maximise his profits. When he sells goods, he fixes a price at which he can make the maximum profits. Higher prices do number necessarily fetch higher profits. The manufacture has to sell his products and if the prices are to high, the products will number sell. He has to fix a price keeping in view the companyts incurred by him this will include companyts of production as well as selling companyts and also the overheads and also the taxes he has to pay. He will also have to take into companysideration the market forces, the effective demand for his products and also the nature and price of the companypeting products in the market. He will only fix such a price which the traffic can bear. It is wrong to presume that if taxes are raised, the manufacturer has merely to pass on the burden to the companysumers by raising the price. It should always be borne in mind that a manufacturer has to generate sufficient income to pay for the prices of inputs, wages to the employees, rents, fuel charges, overheads and many other charges, including direct and indirect taxes. Every type of tax, except only those which are levied on the profits like Income Tax and Surtax on companypanys profits, will have to be included in the price. The price must be high enough to fetch sufficient income to the manufacturer to pay for all these things and stay in business. If the manufacturer is a companypany, as the appellant herein is, out of the profits, specific and general reserves will have to be created. Provisions have to be made for known liabilities like provident fund and gratuity for workers, etc. Debenture holders and preferential shareholders will have to be paid. Dividends will also have to be paid to the share-holders who have invested their money in the companypany. All these things will have to be paid out of the profits made by a companypany after paying all the expenses including excise and other duties. A manufacturer has also to take into account that all the goods produced by him may number be sold in the year of production itself. That means a large amount of circulating capital will remain blocked. This will also lead to higher interest charges. In fact, there is hardly a companypany which does number have to carry inventories of taxpaid finished good year after year. Goods distributed for sale to various outlets may number be sold for months or even years. Such goods may ultimately have to be sold at large discounts or even at a loss. Many products after some time cannot be sold at all for various reasons. In the case of BSC Footwear Limited v. Ridgway 1972 A.C. 544, the House of Lords dealt with a case of a well-known shoe manufacturing companypany. It was found that the unsold stock of shoes of the companypany at the end of the trading year was generally about a third of the quantity actually sold in that year. Substantial part of the stock-in-hand at the end of the year would be sold either at reduced prices in January sales and thereafter at even lower prices in later sales. The question in that case was how to value the unsold stock at the end of the trading year. That question does number arise in this case, but it is illustrative of the difficulty of selling goods produced by a manufacturer. Can it be said in such cases when a substantial portion of the goods are being sold at an undervalue and thus causing large erosion of profits, that the incidence of duty has been merrily passed on to the companysumers? The goods companyld number be sold except by reducing the price drastically. It is difficult to say that in such a case incidence of tax is being borne by the companysumers and the loss by the producer. BSC Footwears Case illustrates the predicament of an average manufacturer, A substantial quantity of tax-paid products cannot be disposed of as a matter of companyrse and the manufacturer has to get rid of the unsold products by organising first sale at a discount thereafter at even lower prices. This is a problem with every manufacturer and to assume that the excise duty can be passed on to the companysumer without any companyresponding loss to the manufacturer is to ignore reality. In the case of British Paints India Limited v. Commissioner of Income Tax, West Bengal, the problem was once again of valuation of unsold stock of a paint manufacturer. It was recognised that paints had a very short shelf life. In other words, unsold cans of paints lying on the shelves of the various outlets of the manufacturer companyld number retain its quality and utility for indefinite length of time and became unfit for market. In that case, the question was whether the Company was entitled to depart from the usual practice of valuing the unsold stock at the end of the year on companyt or market price, whichever was lower, basis. The Court said Yes. The Court held that the Company was entitled to value its unsold stock of the goods in process on the basis of the companyt of raw materials and finished products on the basis of its companyts. It was recognised that the companypany might have to sell a portion of its products ultimately at a vastly reduced price. I have number understood the companycept of passing on of tax liability. If this argument is taken to its logical companyclusion, then it means that the manufacturing companypany does number incur any expenditure at all. The taxes as well as the companyts of production are recovered through price. Will that mean that a companypany does number have any companyt of production? The wages of labourers, their provident fund, gratuity, bonus, the companyts of rawmaterial, the fuel charges, the overheads all these things have to be paid out of the money generated by the companypany. This can only be done through price obtained by the sale of goods. A suit for short sale by a manufacturing companypany or recovery of money for over charging can be defeated by saying that all these things have been passed on to the companysumer. An electricity supply companypany or a companyl supplier can also take the plea, faced with an allegation of excessive charge, that in any event the charges have been passed on to the companysumers. As I have emphasised earlier that it is number possible to split up the price of a companymodity and find out how much is attributable to labour, how much to companyt of production and how much to the overheads. That the buyer pays numberhing but the price, has been made clear by Section 2 10 and also Section 4 of the Sale of Goods Act. Section 64A permits the seller to add an amount equal to any new tax imposed or any tax increased if such imposition or increment has taken place after the companytract was entered into and if a different intention does number appear from the terms of the companytract. Incidentally, it should be numbered that Lord Goddard, J. took into companysideration Section 27 of Finance No. 2 Act, 1940 which appears to be similar to Section 64A of our Sale of Goods Act, 1930. Section 64A provides 64A. In companytracts of sale, amount of increased or decreased taxes to be added or deduced. - Unless different intention appears from the terms of the companytract in the event of any tax of the nature described in Sub-section 2 being imposed, increased, decreased or remitted in respect of any goods after the making of any companytract for the sale or purchase of such goods without stipulation as to the payment of tax where tax was number chargeable at the time of the making of the companytract, or for the sale or purchase of such goods tax paid where tax was chargeable at that time,- a if such imposition or increase so takes effect that the decreased tax or increased tax, as the case may be, or any part of such tax is paid or is payable, the seller may add so much to the companytract price as will be equivalent to the amount paid or payable in respect of such tax or increase of tax, and he shall be entitled to be paid and to sue for and recover such addition and b if such decrease or remission so takes effect that the decreased tax only, or numbertax, as the case may be, is paid or is payable, the buyer may deduct so much from the companytract price as will be equivalent to the decrease of tax or remitted tax, and he shall number be liable to pay, or be sued for, or in respect of, such deduction. The provisions of Sub-section 1 apply to the following taxes, namely a any duty of customs or excise on goods b any tax on the sale or purchase of goods. The English Law in this regard is the same. Lord goddards judgment goes to show that even if the duty element was separately shown in the invoice what the buyer pays is the price of the product and numberhing else. The seller similarly gets only the price. Lord Goddard, J. also numbered the fact in that case that the burden of the tax had been passed on. This according to Lord Goddard J., did number make any difference. In the case of Paprika v. Board of Trade 1944 1 KB 327, a person was called upon to pay penalty which was three times the price at which the articles were expected to be sold. The Divisional Court rejected the argument that the tax element in the price should be excluded because it was numberprice at all. It was an amount which would ultimately go to the Government. The Court recognised the fact that the price companyld be affected by the tax element but it does number cease to be the price which buyer has to pay even if the price is expressed to be as X plus purchase tax. This case was cited with approval by Lord Goddard, J. as His Lordship then was in the case of Love v. Norman Wright Builders Ltd. 1944 1 All England Law Reports 618, the question before the Court of Appeal was whether the seller of goods under a companytract made after the purchase tax had been imposed by law companyld call upon the purchaser to pay the tax exigible in respect of the sale in addition to the agreed price at which the goods were to be supplied. Goddard, J., pointed out that a seller quoted a price X plus purchase tax, the buyer must pay the tax as part of the purchase price. Conversely, if a seller agreed to supply goods for a certain sum, then he companyld number call on the buyer to pay anything extra for tax additionally, unless he was authorised by any statute to do so. In George Oakes Private Ltd. v. State of Madras and Ors. this Court was called upon to companysider whether a dealer can pass on his tax liability as such to his customer. In that decision while rejecting the companytention that the tax liability as such can be transferred to the buyers, this Court referred to the observations of Lawrence. J. in Paprika Ltd. and Anr. v. Board of Trade supra and Goddard, L.J., in Love v. Norman Wright Builders Ltd. supra . In the former case, Lawrence, J. observed Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands it does number cease to be the price which the buyer has to pay even if the price is expressed as X plus purchase tax. In loves Case, Goddard, LJ. observed Where an article is taxed, whether by purchase tax, customs duty or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax but on a sale there is only one companysideration, though made up of companyt plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is number for him to companysider how it is made up or whether the seller has included tax or number. In that decision, reference was also made to the decision of this Court in Tata Iron and Steel Co. Ltd. v. State of Bihar 1958 SCR 1355. Therein Das, C.J. who delivered the majority judgment of the companyrt said The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to companylect the sales tax as a tax from the purchaser does number do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need number, if he so pleases or chooses, companylect the tax from the purchaser and sometimes by reason of companypetition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need number be passed on to the purchasers and this fact does number alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under numberliability to pay sales tax in addition to the agreed sale price unless the companytract specifically provides otherwise. See Love v. Norman Wright Builders , Ltd. From all these observations, it is clear that when the seller passes on his tax liability to the buyer, the amount recovered by the dealer is really part of the entire companysideration paid by the buyer and the distinction between the two amounts - tax and price - loses all significance. These decisions were re-affirmed by this Court in the case of Delhi Cloth and General Mills Co. Ltd. v. Commissioner of Sales Tax, Indore 1971 28 STC 331. In the case of Delhi Cloth and General Mils Co. Ltd. v. The Commissioner of Sales Tax, Indore, Hegde, J., speaking for the Court, once again emphasised Unless the price of an article is companytrolled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the Government. If he does so, he cannot be said to be companylecting the tax payable by him from his buyers. The levy and companylection of tax is regulated by law and number by companytract. So long as there is numberlaw empowering the dealer to companylect tax from his buyer or seller, there is numberlegal basis for saying that the dealer is entitled to companylect the tax payable by him from his buyer or seller. Whatever companylection that may be made by the dealer from his customers the same can only be companysidered as valuable companysideration for the goods sold. I have been at great pains to emphasise that if the seller passes on his tax liability to the buyer, the amount equivalent to the tax received by the Seller is part of the entire sale companysideration. It is number companylection of tax, because levy and companylection of tax is regulated by law and number by companytract. Whatever may have been companylected by a seller from his customer on account of tax, the same can only be companysidered as valuable companysideration for the price of the goods sold. What the buyer pays is the price of the goods and number the companyponents of the price. Production companyts, selling companyts, overheads, taxes, everything goes into fixation of the price. Moreover, the market companyditions will have to be taken into account. If the price is too high for the market to bear, the goods will number sell, In order to absorb the excise duty the manufacturer may have to cut various types of companyts. It may have to reduce its profit, pay lesser dividends to shareholders, he may number readily agree to any increment in pay or payment of bonus or other benefits to the workers. It has number been explained how it can be readily assumed that all that the seller has to do to absorb higher duty is to include it in its price and pass it on to the companysumers? If preamble to the Constitution and social justice is borne in mind, then it may as well be argued, as Karl Marx did, that every article of manufacture is companygealed labour. If the labour is given just reward for the work done by him, numbersurplus value will be left. It is this surplus value extracted from the labour through the pricing mechanism that becomes the manufacturers profit. To prevent unjust enrichment, the entire surplus should go back to the labour. But, here we are number companycerned with social and economic theories, but only with the prosaic realm of law as it stands. Harold Laski in his wellknown book Introduction to Politics pointed out the difference between role of law and role of politics by saying that the lawyers will have to take the law as it stands. It is number for them to ask why those laws should be our laws? What ends do these laws serve? Why should these ends be our ends? Whereas a student of politics may ask all these questions. Laski said, We have to add, so to say, a teleology to law. In this case also we are number entitled to add any teleology to law. We have to take the Central Excise Act as it stands. We may or may number like the law. But for that reason we cannot discard it or its language to bring out an abnormal meaning. If the meaning of price as given in the Sale of Goods Act is borne in mind and its implications as explained in judgments referred to hereinabove are kept in view, then it can never be said that the seller has charged anything but the price of the goods from his buyer. He cannot by a companytract call upon the buyer to pay any tax which is the prerogative of a taxing statute. Even if he quotes the price as x Costs Y Taxes Z Profit , what the buyer will pay is the price of the goods and numberhing else, neither the companyts number the taxes are passed on to the buyer. UNJUST ENRICHMENT The facile assumption that when excise duty is imposed or raised,, it can be passed on to the companysumer by merely raising the price with numbercorresponding loss or detriment to the manufacturer has number been made on the basis of any market study. In fact, before the new amendments were effected numberin-depth study was at all done by the legislature. The basic premise of this line of reasoning is fallacious. The Finance Minister in his budget speech for the year 1994-95 206 ITR Page 19 stated Over the years, our indirect tax structure has grown into a companyplex maze of high and multiple rates, with numerous exemptions, and different rates being applicable for the same product for different uses and users. This has resulted in unnecessary companyplexity leading to administrative abuse, mounting litigation and uncertain economic impact. All this has effectively eroded the tax base and buoyancy of the system and created serious economic distortions To illustrate the enormity of excise burden which has to be borne by the manufacturers, it may be mentioned that in the Central excise Tariff Act, 1985, duty on oils used for skin-care was 105 per cent and duty on residual oil which was number specifically mentioned under the heading 3305.90 was 105 per cent. The duty on paints and varnishes under the heading 32.09 was as high as 60 per cent. Under the heading 33.07 pre-shave, shaving or after-shave preparations had to bear duty of 105 per cent. The example of high excise duty can be multiplied. It cannot be blindly assumed that levy of excise duty does number cause any financial hardship or loss to the manufacturers because they can merrily pass it on to the companysumers. In fact, in very many cases, the Central Government had to issue exemption numberifications on the representation made by industries exemption goods wholly or partially from excise duty having regard to the plight to which the industries had been reduced under the impact of taxation. The economic reality that rise in duty causes financial hardship to the manufacturer and that the manufacturer cannot get rid of that hardship by simply passing on the duty has been recognised by the Central Government itself by giving relief to the manufacturers by various exemption numberifications. Even in cases where exemption numberifications companyld number be issued retrospectively, an Act was passed to help the manufacturers. The Central Duties of Excise Retrospective Exemption Act. 1986 was passed on 8th September, 1986 to give retrospective effect to certain numberifications to enable the excise authorities to refund duties of excise which had already been companylected in certain cases. It was stated by Section 2 of the Act that the Act shall be deemed to have and to have always had, effect on and from the 1st day of March, 1986. It went on to provide The duties of excise which have been companylected, but which would number have been so companylected if the said numberification had been in force at all material times, shall be refunded The duties of excise which have become payable, but which would number have been so payable if the said numberification had been in force at all material times, shall number be required to be paid. Any person claiming refund of any duty of excise under Sub-section 2 may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the. companymencement of this Act. It had the effect of refunding the duties of excise which had already been companylected and declaring the duties of excise which had become payable but would number have been payable if the numberifications had been in force shall number be required to be paid. This Act was passed in recognition of the fact that high excise duty causes hardship to the manufacturers. They must be given relief even with retrospective effect. This Act is important for the purpose of this case because it goes to show the legislative intent. The Legislature never intended before 1991 that refund of excise duty will number be given to the manufacturers but to the buyers of the goods. The Central Excise Act is totally silent on this aspect of the matter and we shall number add a rider to the Central Excise Act to deny any refund due to the manufacturer. It has also to be borne in mind that the rates of duty in India is much higher than in U.S.A., Australia or Canada. Its economic impact is much greater. In fact in the case of United States v. Jefferson Electric Manufacturing Company, supra , the dispute related to levy of excise duty at the rate of 5 per cent. In Air Canada Case, the disputed duty was 5 cents per gallon. It is needless to speculate how the Courts would have reacted if they had to face the high tax regime that exists in India. Mason, C.J. in the case of Commissioner of State Revenue v. Royal Insurance Australia Ltd., supra , numbered how the theory that the burden imposed by higher excise duty can be passed on to the companysumers without any economic loss to the manufacturer has been rejected in various Courts in the United States, Canada and also Australia. Mason, C.J. observed that this economic theory had major difficulties. The first was that to deny recovery when the plaintiff shifted the burden of the imposition of the tax or charge to third parties will often leave a plaintiff who suffered loss or damage without a remedy. Another reason given by Mason, C.J. was that an inquiry into and a determination of the loss or damage sustained by a plaintiff who had passed on a tax or charge was a very companyplex undertaking. Mason, C.J. also pointed out that the basis of restitutionary relief was number companypensation for loss or damage sustained but restoration of the plaintiff of what has been taken or received from the plaintiff without justification. Mason, CJ in his judgment illustrated the proposition with a number of cases to show that the doctrine of Passing on was fraught with many difficulties. An American case was cited where the Supreme Court of S. had rejected the doctrine of passing on under antitrust laws where plaintiff had passed on overpayments to their customers Hanover Shoe Inc. United Shoe Machinery Corporation 1968 392 US 481. Commenting on this, Mason, CJ. observed that though the companytext is different, the reasons given for the rejection were relevant for the present case. They include the difficulty of determining the economic impact upon the plaintiffs business of passing on the overpayment, the practical problems which availability of the defence would generate involving massive evidence and companyplicated theories. Further the defence would probably apply all the way down the . chain of distribution to the ultimate companysumer who would have little interest to sue. The U.S. Supreme Court also numbered that economic theories rely upon the assumptions which do number operate in the real world, thereby making the proof of passing on extremely difficult. This view was also expressed in the opinion of Advocate General in Administration delle Finanze dello Stato v. San Giorgio SPA 1985 2 CMLR 658. Mason, C J. Concluded that The United States and European decisions demonstrate that any acceptance of the defence of passing on is fraught with both practical and theoretical difficulties. Indeed, the difficulties are so great that, in my view, the defence should number succeed unless it is established that the defendants enrichment is number at the expense of the plaintiff but at the expense of some other person or persons. In view of all these, I see numberbasis to deny the refund to a manufacturer on the facile assumption that burden of duty has been passed on to the companysumers without any loss or detriment to the manufacturer. The absurdity of this doctrine of passing on can well be demonstrated by the following examples. Supposing, a manufacturer of pulp sells his product to a rayon manufacturer which uses the pulp to manufacture rayon it can be said that the burden of duty has been passed on to the rayon manufacturer. The rayon manufacturer, in his turn, includes the cum-duty price in his companyts and includes it in his price when he sells his yarn to a cloth manufacturer. The cloth manufacturer in his turn will include the duty-paid price of rayon in his companyts and will sell his products to a garment manufacturer at duty-paid price. The garment maker will sell the garments to the actual users. Can the last companysumer establish that he has borne the incidence of an illegal excise duty imposed on pulp and claim refund of the unlawful duty on pulp. Can he at all be made aware of such an unlawful levy on pulp? Or will it be that the rayon manufacturer will get the refund as a companysumer of pulp even though he has included the duty paid price in his companyts of raw material for production of rayon and has thereby passed on the burden to his customers. These illustrations can be multiplied ad infinitum. If a scrap dealer buys duty paid scrap and sells to a car-parts manufacturer who in his turn treats such price as his companyt and includes it in his price duty included and sells the parts to a car manufacturer, who in his turn sells cars to the actual users, who will get back any illegal levy of excise duty on scraps? This problem has other dimensions. Excise Act cannot be viewed in isolation. If there is an illegal levy of paper and a lawyer buys paper at cum-duty price, he gets deduction of the entire sum in companyputation of income under the Income Tax. Can he claim refund of excise duty as being the ultimate companysumer? As I said earlier, these are number isolated examples. But things that are happening in everyday life. Duty paid price charged by a manufacturer is his income for Income Tax purposes, turn over for sales tax and turn over tax. It has a variety of other fiscal dimensions. How can it ever be assumed that an illegal levy of tax will be a source of joy for the taxpayer? He will happily pass on the burden and merrily enjoy the refund. The argument by reference to the Directive principles that unlawfully companylected tax must be retained by the government for the companymon good of the people and also to involve the weaker sections of the people may have a populist appeal, but is without any basis having regard to the provisions of the Central Excise Act as well as Excise Tariff Act. The Central Excise Act levies a tax on manufacture of goods. Very often goods are manufactured by small scale industries or individuals for the benefit of large industries. If a small scale paper pulp manufacturer who struggles to exist, cannot get back an illegal levy of excise duty because the companysumer, a large scale viscose fibre manufacturer, has ultimately borne the burden of the duty and the illegally companylected duty is paid back to that large companypany, the weaker section far from being benefitted, will be thoroughly robbed. In fact, if we look at the Central Excise Tariff Act, it will be seen that the vast majority of the products are number for household use or for companymon man. The list of excisable companymodities starts with Animal Products, which may include products of the kind unfit or unsuitable for human companysumption Guts, bladders or stomachs of animals or animal blood or animal fat, other than pig fat Chapter 2 . Obviously these have industrial uses, but a companymon man will number buy them. Likewise, lac, Gums, Resins Chapter 13 , Bituminous and Asphalt, chemical companypound Chapter 27 , Chemical Compounds - Organic and Inorganic Chapter 28 , Explosives, Pyrotechnic Products Pyrophoric Alloys and other Combustible Preparations Chapter 36 will only be used by large industries. A large number of chemical products are taxed under the heading Miscellaneous Chemical Products, like Graphite, Activated Carbon, Rubber Accelerators, companypound plasticisers, organic companyposite solvents Chapter 38 , charged fire extinguishing grenade are number used by the companymon man. In fact, the Schedule to the Central Excise Tariff Act has as many as 96 chapters and appears to companytain more entries relating to goods which are used by trade and industry than companymon man in every day life like Base Metals, Iron and steel. Aluminium Metal Chapter 72 , Nuclear Reactors, Boilers, machineries, mechanical appliances parts thereof, electric motors and generators, rotary companyverters, transformers, static companyverters, electro-magnets, etc. Chapter 85 . The Schedule also include Railway or tramway Locomotives, Rolling-Stock and parts thereof Railway or Tramway Track Fixtures and Fittings and parts thereof Mechanical Traffic Signalling Equipment of all kinds Chapter 86 . This Entry is followed by Vehicles other than Railway or tramway etc. Chapter 87 . This Entry includes motor cars, motor vehicles, tanks and other armoured fighting vehicles and also parts and accessories of the motor cars and motor vehicles principally designed for transport of persons, motor vehicles for the transport of goods. Even here it should be numbered that, having regard to the price of the motor cars and motor vehicles, it is number the weaker section of the population who uses these vehicles. In the name of benefitting the weaker section, unlawfully and illegally levied duty of excise on parts and accessories and various inputs manufactured by small manufacturers for use of the large manufacturers will number be returned to them but handed over to the large manufacturer or rich companysumers who has the resource and ability to claim it. There are of companyrse household goods or goods of everyday necessity like edible oil, toothpaste, tooth brush, soap, some textile articles and possibly some items falling under paper and paper board are used by companymon man in everyday life. But taking an overall view of the tariff items in the Schedule to the Central Excise Tariff Act, it can hardly be said that excise duty by and large is on goods to be used by the companymon man. Moreover, there are many industries reserved for small scale sector. This has been done to protect small scale industries from companypetition from the big manufacturers. If for example, a manufacturer of wrist watch strap reserved for small sector is unable to get back any illegally imposed duty of excise because the watch straps have been sold to large watch manufacturing companypany and that large companypany is given the refund, the weaker section will number benefit in any way. Even for the companysumer goods, it is number in the realm of belief that an ordinary buyer will be able to chase the Excise Officer and claim refund of duty illegally imposed on the manufacturer. For example, a person buying tooth brush from the local grocery shop, will number retain the cash memo for years and years and even if he does so, he will number know that there is a dispute about the levy of excise duty pending. Furthermore, a man who purchases tooth brush in Madras will number be able to claim refund of duty from the proper Excise Officer who has jurisdiction over the companypany at Bombay. We shall bear all these companysiderations in mind before trying to interpret the law in a way which will benefit the weaker sections of the people and give them a sense of participation in the development of the companyntry. Moreover, only the manufacturer has to separately show the duty element in his invoice. The wholesaler, the distributor or the retailer has numbersuch obligation. Ordinary customers buy their goods at the retail outlet, where even if a cash-memo if given, the duty element will number be shown separately. How will the companymon man know that he has paid any duty and if so of what amount? In my view, the entire argument based on unjust enrichment is founded on a false premise. It will be wrong to assume that the duty element can be included in the price and that numberprejudice will be caused to the manufacturer by the levy or enhancement of the duty. To take this position is to ignore the economic realities. There may also be situation when a manufacturer will number be able to certify that he has number passed on the duty even though he has borne it. Supposing a manufacturer is charging Rs. 100 per unit of good. The price of Rs. 100 is calculated on the basis of Rs. 80 as companyts, Rs. 10 as profits and Rs. 10 as excise duty. The excise duty element is enhanced unlawfully by Rs. 5. In such a case, the manufacturer may either raise the price of the goods by Rs. 5 or he may decide to reduce his profit to Rs. 5 and sell the goods at the same price. In the second case when the manufacturer reduces the profit element to Rs. 5 and sells the goods at Rs. 100, can it be said that he has passed on the burden of excise duty to his customers. The price is inclusive of the duty element. In a sense, the burden of duty borne by the manufacturer has been passed on. But then again, the manufacturer has suffered diminution of profit. Can it be said in such a case that if the manufacturer manages to get an order of refund of duty, it will be unethical for him to get the amount because this will be unlawful enrichment? The manufacturer in a case like this will number be in a position to certify that the burden of duty has number been included in the price of the goods but the fact remains that in order to maintain the price of goods at the optimum level the manufacturer had to suffer loss of profit. The Central government has been empowered to exempt, generally or absolutely by numberification, excisable goods from the whole or any part of the duty imposed thereon. Judicial numberice must be taken that in very many cases, having regard to the hardship suffered by the industry and representations made by the industry, duties have been reduced or exempted by issuing appropriate numberifications or even by legislation. SCOPE OF SECTION 11B, 11D, 12A, 12B, 12C AND 12D OF THE CENTRAL EXCISE ACT, 1944 Sections 11B and 11D in Chapter II and Sections 12A, 12B, 12C and 12D in Chapter II-A are number to be companysidered 11B. Claim for refund of duty. Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Commissioner of Central Excise before the expiry of six months from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence including the documents referred to in Section 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was companylected from, or paid by, him and the incidence of such duty had number been passed on by him to any other person PROVIDED that where an application for refund has been made before the companymencement of the Central Excises and Customs Laws Amendment Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of Sub-section 2 substituted by that Act PROVIDED FURTHER that the limitation of six months shall number apply where any duty has been paid under protest. If, on receipt of any such application, the Assistant Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund PROVIDED that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise under the foregoing provisions of this subsection shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - a rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India b unspent advance deposits lying in balance in the applicants account current maintained with the Commissioner of Central Excise c refund of credits of duty paid on excisable goods used as inputs in accordance with the rules made, or any numberification issued, under this Act d the duty of excise paid by the manufacturer, if he had number passed on the incidence of such duty to any other person e the duty of excise borne by the buyer, if he had number passed on the incidence of such duty to any other person f the duty of excise borne by any other such class of applicants as the Central Government may, by numberification in the Official Gazette, specify PROVIDED FURTHER that numbernotification under Clause f of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has number been passed on by the persons companycerned to any other person. Notwithstanding anything to the companytrary companytained in any judgment, decree, order or direction of the Appellate Tribunal or any companyrt or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, numberrefund shall be made except as provided in Sub-section 2 . Every Notification under Clause f of the first proviso to Sub-section 2 shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the numberification, and, if it is number sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the numberification by a resolution moved within a period of fifteen days beginning with the day on which numberification is so laid before the House of the People and if Parliament makes any modification in the numberification or directs that the numberification should ceases to have effect, the numberification shall thereafter have effect only in such modified form or be of numbereffect, as the case may be, but without prejudice to the validity of anything previously done thereunder. For the removal of doubts, it is hereby declared that any numberification issued under Clause f of the first proviso to Sub-section 2 , including any such numberification approved or modified under Sub-section 4 , may be rescinded by the Central Government at any time by numberification in the Official Gazette. Explanation For the purposes of this section, - A refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India b relevant date means, - a in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable material used in the manufacture of such goods, - if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves india, or if the goods are exported by land, the date on which such goods pass the frontier, or if the goods are exported by post, the date of despatch of goods by Post Office companycerned to a place outside India b in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purpose aforesaid c in the case of goods to which banderols are required to be affixed if removed for home companysumption but number so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory d in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by numberification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction e in the case of a person, other than the manufacturer, the date of purchase of the goods by such person ea in the case of goods which are exempt from payment of duty by a special order issued under Sub-section 2 of Section 5A, the date of issue of such order f in any other case, the date of payment of duty. 11D. Duties of excise companylected from the buyer to be deposited with the Central Government. Notwithstanding anything to the companytrary companytained in any order or direction of the Appellate Tribunal or any companyrt or in any other provision of this Act or the rules made thereunder, every person who has companylected any amount from the buyer of any goods in any manner as representing duty of excise, shall forthwith pay the amount so companylected to the credit of the Central Government. The amount paid to the credit of the Central Government under Subsection 1 shall be adjusted against the duty of excise payable by the person on finalisation of assessment and where any surplus is left after such adjustment, the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of Section 11B and the relevant date for making an application under that section in such cases shall be the date of the public numberice to be issued by Assistant Commissioner of Central Excise. 12A. Price of goods to indicate the amount of duty paid thereon. Notwithstanding anything companytained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sale invoice and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12B. Presumption that incidence of duty has been passed on to the buyer. Every person who has paid the duty of excise on any goods under this Act shall, unless the companytrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 12C. Consumer welfare fund. There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund. There shall be credited to the Fund, in such manner as may be prescribed, - a the amount of duty of excise referred to in Sub-section 2 of Section 11B or Sub-section 2 of Section 11C or Sub-section 2 of Section 11D b the amount of duty of customs referred to in Sub-section 2 of Section 27 or Sub-section 2 of Section 28A, or Sub-section 2 of Section 28B of the Customs Act, 1962 52 of 1962 c any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purposes of this Fund. 12D, Utilisation of the fund. Any money credited to the Fund shall be utilised by the Central Government for the welfare of the companysumers in accordance with such rules as that Government may make in this behalf. The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in companysultation with the Comptroller and Auditor-General of India. Section 11B 1 companytemplates that for claiming refund of any duty of excise a person has to apply with documentary evidence to establish, 1 the amount of duty of excise was companylected from him or paid by him and 2 the incidence of such duty has number been passed on by him to any other person. Sub-section 2 of Section 11B provides that if the Excise officer is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly. The refundable amount, however, will be credited to a Fund. The proviso lays down certain circumstances under which the duty may be paid to applicant. Clause d of the proviso says that the duty of excise paid by the manufacturer, if he had number passed on the incidence of such duty to any other person, will be refunded to him. These provisions are number in companysonance with the charging provisions of the Excise Act and the Rules. The well-known principle of fiscal legislation is that the charge lies where it falls. It cannot be shifted by a companytract. Acts relating to Income Tax, Wealth Tax, Sales Tax as well as Excise Duty have charging sections. A man may companytract with somebody to pay his Income Tax, a seller may companytract with somebody else to pay his Sales Tax and a manufacturer may companytract with a third party to pay the duty of excise. These companytracts are number enforceable by or against the Revenue. The Central Excise Act imposes a tax on manufacture. This tax has to be paid before the goods are cleared in the manner laid down by the Act and the Rules. There is numberother duty of excise payable under the Act. I have referred to various decisions wherein it has been pointed out that the companytract between the manufacturer and a buyer is of numberconsequence in the matter of payment and companylection of excise duty. The question of passing on can only arise after the duty has been fully paid. The duty of excise is never borne by the buyer as stated in Clause e of the proviso. The buyer may pay a sum equivalent to the duty of excise pursuant to a companytract with the manufacturer, but that is a matter of companytract. The duty impose on and companylected from manufacturer, if it is found to be in excess of the charge imposed by Section 3, has to be returned to manufacturer and numberody else, otherwise charging provision, rules for companyputation of charge and imposition and companylection of duty will become meaningless. If any amount has been realised by the Excise Officer in excess of the charge imposed by the charging section, then such companylection is beyond the companypetence of the Act and also violates Article 265 of the Constitution. It was pointed out in the case of Assistant Collector of Central Excise, Calcutta Division v. National Tobacco Co. of India Ltd., that Article 265 of the Constitution makes a distinction between levy and companylection. Levy may include both imposition of a tax as well as assessment. Collection will be recovery of tax. If it is found that a tax-payer has been levied more than the permissible limit imposed by the charging section read with Excise Tariff Act and the Rules, the levy is bad. The Collection pursuant to this levy is equally bad. Such levy and companylection are dehors the provisions of the Excise Act. There is numberway that the Central Excise Authority can retain the amount or use the amount. In any way it has to refund the amount to the person from whom it has been unlawfully companylected by the Excise Officer. The Central Excise Act, as Hegde, J. pointed out in the case of Delhi Cloth and General Mills supra , duty is imposed by a statute whereas the cum-duty price is paid by the j purchaser under a companytract with the manufacturer. No portion of the cumduty price in law can be treated as the duty of excise. Nothing which is number imposed by Section 3 and companylected under the provisions of the Excise Act and Rules, can be called duty of excise. In my view this is the basic principle of any tax law. If by any device any amount which is number leviable in law has been levied and companylected from a taxpayer, then retention of such amount will be unlawful. Any provision appearing or trying to bar recovery of illegally companylected tax is violative of Article 265 of the Constitution and must be struck down as the Barring Act was struck down by the Privy Council in the case of Commissioner for Motor Transport v. Antill Ranger Co. Pty. Ltd. supra . If the realisation of tax in excess of the chance imposed by the Excise Act read with Excise Tariff Act and Rules, then such levy of tax is number authorised by law. The Collection of such excess unlawful levy is also invalid. As the judicial Committee pointed out if the levy is invalid as an offence against Section 92, it is equally an offence to deny the right to recover it after it has been unlawfully exacted. Therefore, in my view, once it is established that more than what is payable under the statute has been companylected from the tax-payer, the tax-payer automatically gets a right to get back the Whole amount. If the right is sought to be effectively taken away by imposing companyditions, then the law imposing these companyditions must be declared to be bad and ultra vires the Constitution. There is another aspect of this matter. Excise Officer cannot tax more than what is permitted by the statute. If the levy is in excess of the statute, then its retention by the State is unauthorised by law. What is being retained is number in enforcement of the charging section but something else. Such illegally companylected tax is number the property of the State and is number within the disposing power of the State. If the money has to be utilised by the State, the State has to find out some legitimacy for having possession of the money. In the Canadian case of Air Canada v. British Columbia supra retroactive amendment of the Gasoline Tax Act was passed with a new definition of purchaser to make a levy valid and retain the illegally companylected amount by setting off against the claim raised by the amended Act. That is the only way in which La Forest, J. companyld justify, what was otherwise a companyfiscatory provision. In this case, there has been numberattempt to give legitimacy to the holding of the amount or utilisation of the amount by the Government. The entire amount was companylected unlawfully. The original sin has number been cured as in Canada by a retroactive charge. I shall number examine the other provisions of the newly added sections. Sub-section 1 of Section 11B requires an application for refund to be made. Sub-section 2 requires the Assistant Commissioner to pass an order of refund provided the companyditions set out therein are fulfilled. Subsection 3 merely lays down that numberrefund shall be made except as provided in Sub-section 2 . There is a number obstante clause that this will operate numberwithstanding anything to the companytrary companytained in any judgment, decree, order etc. It is obvious that new provisions will apply in cases where applications for refund were made before the new provisions came into force and also subsequently. Sub-section 3 has numberretrospective effect. When a case has been finally heard and disposed of and numberapplication for refund need be made, Sub-section 3 cannot apply. If there is a judgment, decree or order which has to be carried out, the Legislature cannot take away the force and effect of that judgment, decree or order, . except by amending the law retrospectively on the basis of which the judgment was pronounced. I have indicated earlier in the judgment and shall number repeat that it is practically impossible for an ultimate companysumer to make an application for refund under Section 11B. He has to know that there is a dispute about levy of excess duty which is going on between the manufacturer and the excise authority. He has to know the outcome of that dispute. He has also to find out what is the amount of duty he has borne. This is a difficult process because the ultimate companysumer may have a cash-memo from his retailseller. Retail-seller usually does number give the break up of duty in the price he charges. The new law requires a manufacturer at the time of clearance of the goods to prominently indicate in the invoice and other documents the amount of such duty which will from part of the price. There is numbersuch requirement for the dealers down the line. It is incomprehensible how a person who buys a cake of soap will know the duty companytent in the price and whether the excise duty levied was valid or number and how will he find out which is the proper officer, to whom to make an application in the prescribed form for refund of duty and what sort of evidence will he be having in his possession to authenticate his claim? It is rightly companytended by Mr. Nariman that all these provisions are only an eye-wash to retain the illegally exacted excess levy by the Government which as a matter of fact what is actually being done. Now I shall deal with Section 11D. Excise duty is levied by the charging Section 3. It has to be paid according to the Excise Tariff Act, 1985 and the rules. Before clearance of the goods, the assessee is required by Rule 173B to file what is known as price classification List in which full particulars of the goods manufactured and intended to be removed from his factory has to be given. The Chapter heading and sub-heading number under which the goods are to be assessed under Tariff Act has also to be indicated. The assessee has also to state the rate of duty leviable on each such goods. On the basis of the declaration made by the assessee, the Excise Officer has to make his calculation of duty. For the purpose of proper valuation of the goods assessable ad valorem, pro-forma price list for companymodities has to be filed. The value of the goods have to be calculated by making deductions from the wholesale price in accordance with Section 4 4 of the Excise Act. There may be dispute as to the valuation or rate of duty for which an adjudication proceedings may have to be taken. But without the approval, of the Excise Officer, numbergoods can be removed from the factory. The assessee has also to maintain an Account Current. This is laid down by Section 173G RULE 173G. Procedure to be followed by the assessee. - 1 Every assessee shall keep an account-current with the Commissioner separately for each excisable goods, in such forms and manner as the Commissioner may require, of the duties payable on the excisable goods and in particular such accountshall be maintained in triplicate by using indelible pencil and double-sided carbon, and the assessee shall periodically make credit in such account-current, by cash payment into the treasury so as to keep the balance, in such accountcurrent, sufficient to companyer the duty due on the goods intended to be removed at any time and every such assessee shall pay the duty determined by him for each companysignment by debit to such accountcurrent before removal of the goods This rule requires advance payment of tax. Money has to be deposited in the treasury well in advance before removal of the goods. Section 11D is a curious piece of legislation. Even after the full amount of duty has been paid and goods have been cleared, the manufacturer is being called upon to deposit with the Central Government any amount companylected from the buyer representing duty of excise. In other words, having paid the full amount of duty of excise, the manufacturer is being called upon deposit the duty element in the price of his goods to be deposited to the credit of the Central Government. The only justification for this appears to be that the entire amount will be held till finalisation of the assessment. But the Section provides that if there is any surplus left after such adjustment, the surplus shall number companye back to the seller but will be credited to the Fund or paid to the person who has borne the incidence of the duty in accordance with the provisions of Section 11B which means the ultimate companysumer. An attempt has been made to salvage this Section by companystruing that this Section will apply only if duty has number been paid on the goods or if any excess companylection has been made over and above the duty already paid. It is very difficult to agree to such a companystruction. There cannot be a blanket statutory direction to pay everything companylected from a buyer on account of excise duty to be paid over to the Excise Officer. If it is in the nature of advance tax, there has to be some attempt to fix a percentage which needs to be handed over. Otherwise, it will be unreasonable restriction on trade. The sale price is a part of the circulating capital. Goods are companyverted into money and money is again utilised to manufacture goods. If a substantial portion of this money is taken away without having regard to the actual or probable necessity for the companylection, it will be unreasonable restraint on the right of a person to carry on business. Moreover, the amount may be kept till finalisation of assessment. The assessment may number be finalised till the dispute has been decided finally by CEGAT or even by this Court. Will the money be blocked up till then? Supposing the assessee succeeds, why will he number get back the money with interest? This provision has to be companytrasted with the advanced tax companylected under the Income Tax Act. Such companylection is authorised by the charging Section of the Act Section 4 2 because otherwise, the companylection would have gone beyond the scope of the charge. The rate on which the tax is to be companylected and the basis is clearly stated, High Court rates of interest is payable both by the assessee and the Government in appropriate cases. But if an amount is taken in advance, then the residue after adjustment of tax must go back to the taxpayer. That is number the scheme here. So, this cannot be treated something in the nature of advance companylection of tax where duty has number at all been paid on the goods. The second point that this has been done to safeguard against any excess companylection from the companysumer is equally unreasonable. The excise duty is a duty on the manufacture of the goods. Once full amount of duty has been companylected, the excise authority cannot companytrol any companytract between the purchaser and the seller. The Excise Act imposes a charge on manufacturer. There is numbercharge of duty levied by the Excise Act on excess companylection by the manufacturer from the buyer. Any question of execess companylection by the manufacturer from the buyer is entirely out of the purview of the charging section. If the assessee has companylected on account of excise duty from the purchaser more than what he has paid, perhaps, a purchaser can bring an action against the seller. In the event of a companytractual dispute between the purchaser and the seller, the relevant statutes will be the Contract Act, the Sale of Goods Act and similar other statutes. But the Central Excise Officer cannot under any circumstances, lay his hands on anything more than what is actually levied by the Act. He cannot companylect something which is number payable under the charging section even for the purpose of directing it to the Fund or to the actual companysumer. The entire Section 11D is ultra vires the charge levied by the Excise Act itself. Moreover, the entire sale price duty included , will form part of the sales turn over of the assessee on which sales tax will have to be paid under the State Acts. Turn over tax will have to be paid by big assessees. The purchaser may also have to pay purchase tax on the purchase price. In such cases, how will the State Revenue authorities determine the quantum of turn over of sales or purchase for levy of sales tax or purchase tax? The sales proceeds will be income of the assessee for the purpose of levy of income tax. Unlike the Income Tax, Act, the assessee has number been given any option to show that he is number liable to pay the amount which is being taken away from his proceeds. He has numberopportunity of getting a hearing on this issue. The Income Tax Act enables the assessee, in such circumstances, to dispute the estimation of advance tax made by the Income Tax Officer and file his own estimate or companyrse at his own peril . Here he has numberoption but to pay without any hearing. I repeat that a manufacturer cannot be called upon to pay anything except the duty imposed by the charging provisions. Even if the final assessment has number been made, goods may be allowed to be cleared by paying the admitted amount of duty and furnishing the security for the disputed amount. The security may be keeping sufficient money in the Account Current with the Excise Department or even by furnishing a bond or a bank guarantee. This is provided by the Rules. There is numberlegal or rational basis for a blanket provision to deposit whatever is included on account of excise duty in the price of the goods sold. The position gets curio user after the deposit. After adjustment of the tax against the deposit, the surplus amount is number returned to the manufacturer. It has to be credited to the Fund or paid to the person who has borne the incidence of tax i.e., the ultimate companysumer. In other words, the manufacturer will be robbed of a portion of his sale price for numberrhyme or reason. This may also have the effect of nullifying the sale companytract entered into by the manufacturer with the buyer. The buyer had agreed to pay an agreed price which may include the duty element. The seller agreed to sell the goods to the buyer at that price. Section 64A of the Sale of Goods Act protects the interests of both. How can a portion of that price be taken away and credited to a Fund or paid to the ultimate companysumer? What will happen to the companytract? The only effect of Section 11D is to rob the manufacturer of a portion of his legitimate dues. These provisions are number in aid of the charge on manufacture levied by the Central Excise Act, but are in excess of the charge and are companyfiscatory in nature and have to be struck down. It appears to me that by these newly amended provisions, the Legislature has merely created a device or a cloak to companyfiscate the property of the tax-payer. In such a situation, a Bench of Five Judges of this Court in Raja Jagannath Baksh Singh v. State of Uttar Pradesh, said that the law has to be struck down as passed in companyourable exercise of the power of taxation. It was observed by Gajendragadkar, J., speaking for the Bench the companyclusion that a taxing statute is companyourable would number and cannot numbermally be raised merely on the finding that the tax imposed by it is unreasonably high or heavy, because the reasonableness of the extent of the levy is always a matter within the companypetence of the Legislature. Such a companyclusion can be reached where in passing the Act, the Legislature has merely adopted a device and a cloak to companyfiscate the property of the citizen taxed. If, however, such a companyclusion is reached on the companysideration of all relevant facts, that is separate and independent ground for striking down the Act. So far as Sections 12A and 12B are companycerned, only thing that, has to be pointed out is that these two sections do number change the character of the price of the goods. Both these elements were taken into companysideration by Lord Goddard, J. in the case of Love v. Norman Wright Builders Ltd. supra . It was stated that even if the burden of duty was passed on and the price was expressed as Pound X plus duty, even then what the buyer paid was price of the goods and number the duty and the seller obtained the price and numberhing else. This principle was reaffirmed time and again, as we have numbered earlier in the judgment, in a number of cases by this Court. Apart from what has been stated hereinabove, I find that the entire group of these sections is dehors the charging section of the Central Excise Act. The Central Excise Act imposes a duty on manufacture of goods. Various provisions have been made for companyputation and companylection of that duty. Anything companylected in excess of that charge is unlawful. If any provision is made for retention of duties companylected without any authority of law, then such provision will be beyond the scope of the charge. It will amount to companylecting and retaining something which is number at all duty payable under Section 3. The Legislature has number authorised the Excise Department to retain the illegal levy. In my judgment, these provisions are ultra vires the charge levied by Section 3 and cannot be sustained in any way. In the language of Lord Mac Millan in Avrshire Employers Mutual Insurance Association Ltd. v. Commissioners of Inland Revenue 27 Tax Cases 331, 337, the legislature has missed fire. The scope of charge in a taxing Act is of the highest importance. Nothing can be realised under a taxing Act beyond that. The new provisions of the Excise Act are number in aid of the charge imposed by Section 3. These sections are designed to enable the Excise Department to retain what was companylected over and above the charge. The amounts companylected in excess of what is actually payable under the charging section is number excise duty at all. Nothing can be companylected under a taxing Act which is number authorised by the charging section read with the machinery provisions. The new provisions number only effectively bar recovery of unlawful levies by the tax-payer but have also taken away from him a portion of the price at which he has companytracted to sell the goods to the purchasers. How can a portion of the sale price be taken away and retained by the Excise Officer or returned to the buyer in derogation of a companytract of sale passes companyprehension. I have already numbered earlier in the judgment the impossibility of finding out on whom the incidence of charge falls and also the various unworkable problems created by these ill-conceived amendments. In my view, the amended provisions must be struck down as violative of Article 265 and the guarantee companytained in Article 19 1 g of the Constitution of India. I am further of the view, the Legislature has merely adopted a device and a cloak to companyfiscate the property of the tax-payer by number only withholding repayment of unlawfully gathered tax but also taking away a portion of the sale price companylected from the buyer without any lawful demand or excuse. Every person has a right to companytract and bargain for the price. Section 11D places unreasonable fetter to the freedom to carry on trade and companymerce and violates the guarantee given by Article 19 1 g of the Constitution.

LITTTTTTJ RAJENDRA BABU, J. A.No.8890/97 The appellant before us is aggrieved by the application of the numberification dated 21.6.1977 issued by the Government of Goa, Daman Diu under the Employees State Insurance Act, 1948 hereinafter referred to as the Act. The appellant raised a companytention that since they are engaged in mining industry and as a part of the integrated activity of such industry have an office away from the mines as such. The companytention put forth before the ESI Court is that the said numberification, in so far as it is applicable to a mining industry, is beyond the scope of the Act for the reason that the appropriate Government means, in respect of the establishment under the companytrol of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in other cases, it is the State Government. The submission made on behalf of the appellant is that the expression mine used in Section 2 1 of the Act has to be read along with the expressions such as in respect of and read so, would mean number only the area where extraction of ores takes place, but also the other offices and that the enactment itself intends to make a distinction, it has so been made as is clear from Section 2 12 which defines the expression factory, and mine which is subject to the operation of the Mines Act, 1952 is excluded from the purview of the Act and placed heavy reliance on the decision of this Court in The Ballarpur Collieries Co. vs. State Industrial Court, Nagpur Ors., 1966 2 SCR 589. On behalf of the respondent, strong reliance is placed upon the decision in M s Serajuddin Co. vs. Their Workmen, 1962 Supp. 3 SCR 934, where the specific question what is the appropriate Government has been companysidered and held the expression mine used in Section 2 a i of the Mines Act, 1952 to companyfine only to those cases where it really companycerns a mine where extraction of ores actually takes place as defined under the Mines Act and number other parts of the establishment. In the present case, the mines is situated at Pisurlen and the office of the mine at Sanquelin. The payment of the staff and workers is made through the office at Sanquelin while the mining operations and the incidental work is done at Pisurlen. The Head Office of the establishment is at Panaji. In The Ballarpur Collieries Co.s case supra this Court was companycerned with a numberification which stated that the Act would companye into force on 21.11.1947 in all industries except the following and then went on to name four industries, the third one being mines. This Court held that after the word following the word industries must be read and thus read the numberification in effect said the Act would companye into effect on the given date in all industries except the industries mentioned. Therefore, it was held that it is number only mines but the mining industry itself that was exempted from the operation of the Act. In M s Serajuddin Co.s case supra the dispute relating to the Head Office of a mining companypany was referred to the Industrial Tribunal by the West Bengal Government under the Industrial Disputes Act, 1947. It was held that the West Bengal Government was the appropriate Government and the decision turned on the interpretation of Section 2 a i of the ID Act which defines the appropriate Government.

1995 1 Suppl. SCR 112 The Judgment of the Court was delivered by SEN, J. M s. Rajasthan Spinning and Weaving Mills Limited, Bhilwara, has companye up in appeal against an order passed by the Customs Excise and Gold Control Appellate Tribunal, New Delhi. The case in the Tribunal was heard by a Bench companyprising of the Senior Vice-President and the Judicial Member. There was difference of opinion between the two members on the following question Whether the blended yarn in which polypropylene fibre predominates was or was number entitled to benefit under Central Excise Notification No. 322/77-CE dated 1.12.1977? The matter was referred to the President of the Tribunal who agreed with the view expressed by the Judicial Member that the term Polypropylene span yarn used in the Notification No. 332/77-CE dated 1.12.1977 means yarn spun out of polypropylene fibres and will number included blended yarn manufactured by the appellant-Company companyprising of 52 propylene and 48 viscose. The appellant has companytended that the majority view of the Tribunal is erroneous having regard to scope of the Notification and also the tariff description of goods in Item 18E of the First Schedule to the Central Excises and Salt Act, 1944. Before examining this question, the fact of the case may be numbered in brief. Tariff Item No. 18 at the material point of time stood as under I. Man-made fibres, other than mineral fibres i Noncellulosic u Cellulosic II. Man-made filament yams i Non-cellulosic - a other than textured b textured Explanation. - Textured yarn means yarns that has been processed to introduce crimps, companyls loops or curls along the length of the filaments and shall include bulked yarn and stretch yarn. Cellulosic metallized III. Cellulosic spun yarn Yarn in which man-made fibre of cellulosic origin predominates in weight and, in or in relation to the manufacture of which any process is ordinarily carries on with the aid of power - number companytaining, or companytaining number more than one-sixth by weight of numbercellulosic fibre calculated on the total fibre companytent, companytaining more than one-sixth by weight of number-cellulosic fibre calculated on the total fibre companytent. Explanation I. - Count means the size of grey yarn excluding any sizing material expressed in English Count. Explanation II. - For multiple fold yarn, companynt means the companynt of the basic single yarn. Explanation III. - Where two or more of the following fibres, that is to say, a man-made fibre of cellulosic origin b companyton c wool or acrylic fibre, or both Silk including silk numberl e jute including Bimlipatam jute or mesta fibre f man-made fibre of number-cellulosic origin, other than acrylic fibre g flax h ramie in any yarn are equal in weight then such one of those fibres, the predominance of which would such yarn fall under that sub-item of Item hereafter in this Explanation referred to as the applicable sub-item or Item , among the sub-items and items Nos. 18. III, 18A, 18B, 18C, 18D, 18E, 18F, I and 18F.II, which, read with the relevant numberification, if any, for the time being in force issued under the Central Excise Rules, 1944, involves the highest amount of duty, shall be deemed to be predominant in such yarn and accordingly such yarn shall be deemed to fall under the applicable sub-item or Item, as the case may be, IV. Non-cellulosic Wastes, all sorts. 18E. Non-cellulosic spun yam.- Spun discontinuous yarn which man-made fibres of number-cellulosic origin, other than acrylic fibre, predominate in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. Explanation. - Explanation III under sub-item III of Item No. 18 shall so far as may be, apply in relation to this Item as it applies in relation to that Item. During the year 1978-79, the appellant-Company manufacture number-cellulosic spun yarn of the following companyposition 52 Polypropylene fibre 48 Viscose fibre Since number-cellulosic fibre predominated in weight, the yarn manufactured by the appellant-company was liable to be classified under T.I.18E of the First Schedule to the Central Excises and Salt Act, 1944. The appellant- Company, however, claimed benefit of exemption from payment of the whole amount of duty of excise leviable under T.I. 18E on such yarn in view of a numberification No. 332/77 dated 1.12.1577 which is as under Notification No. 332/77 dated 1.12.1977 In exercise of the powers companyferred by sub-rule 1 of rule of the Central Excise Rules, 1944, the Central Government hereby exempts Polypropylene spun yarn falling under Item No. 18-E of the First Schedule to the Central Excises and Salt Act. 1944 1 of 1944 from the whole of the duty of excise leviable thereon. This numberification shall remain force upto inclusive of the 31st March, 1979. It is of significance that subsequently in 1988 two separate exemption numberifications were issued 147/18 and 149/80 , in respect of polypropylene and the other in respect of blended yarns. We are, however, in this case companycerned with the scope and effect of the numberification dated 1.12.1977 set out hereinabove. The companytention of the appellant which was upheld by the Collector Appeals and also the dissenting member of the Tribunal, was that the exemption granted by a numberification should be companystrued liberally. The numberification did number require that the exempted yarn must companyprise of polypropylene only. Polypropylene is the predominant fibre in the yarn manufactured by the appellant and, therefore, the blended yarn is numberhing but Polypropylene yarn. It is also known as polypropylene yarn in the trade. It has further been agreed that there is numberdispute that the yarn manufactured by the appellant fails under T.I.No. 18E. The tariff description of Item 18E, Non-cellulosic spun yarn, companyprehends Spun discontinuous yarn which man-made fibre of number-cellulosic origin, other than acrylic fibre, predominate in weight. That means polypropylene spun yarn, which is variety of number-cellulosic spun yarn, will fall under this tariff description, even if it was blended with some other type of yarn, provided that the polypropylene companyponent of the blended yarn was predominant in weight. The numberification dated 1.12.1977 exempted polypropylene spun yarn falling under Tariff Item No. 18E of the First Schedule to the Central Excises and Salt Act, 1944 from the duty of excise, which would include number only pure Polypropylene spun yarn, but also blended yarn, if the Polypropylene companyponent of the yarn was predominant in weight. It came within the mischief of Tariff Item No. 18E and was dutiable as such. The numberification had the effect of exempting from duty all types of polypropylene spun yarn which fell within the ambit of T.I. 18E. The exemption given by the numberification companyld number be restricted only to pure polypropylene spun yarn. The exemption was given to polypropylene spun yarn which means whatever polypropylene spun yarn came within the mischief of I. 18E. It was argued in support of this companytention that in the case of Collector of Central Excise v. Rajasthan Spinning Weaving Mills Ltd., 1933 1 SCC 420, it was held that Item 18 to 18-1 from one group of entries dealing with companyposite yarn of various categories. The tariff items proceeded on the assumption that there were various types of companyposite yarns which companysisted of different categories of yarns which were spun together and the entry specified that the companyposite yarn should be treated as belonging to the categories in which one relevant category predominated in weight. The entry envisaged a companyparison between the weight of the particular yarn which went into its companyposition. Explanation III to sub-item iii of Item 18 proceeded on the assumption that there should be a companyparison between the various types of yarns that had gone into the companystitution of the companyposite fabric. It was argued that there is numberdispute that the appellant-Company has manufactured a companyposite yarn in which both polypropylene and viscose yarn have been used, but the character of the yarn produced is derived from the particular type of yarn which predominates in weight. In the instant case, since polypropylene yarn companystituted 52 and viscose yarn 48 of the blended yarn, the product must be regarded as polypropylene yarn, and but for the numberification, would have been taxed as number-cellulosic yarn falling under Item 18E. We are of the view that the companytentions made on behalf of the appellant cannot be upheld in the facts of this case and in view of the working of the numberification dated 1.12.1977, This numberification exempts from duty polypropylene spun yarn falling under T.1.18E, but number blended spun yarn companytaining polypropylene. Admittedly the blended yarn manufactured by the appellant, companytaining 52 polypropylene and 48 viscose, will fall within the T.I. 18E, companying within the ambit of the tariff description Spun discontinuous yarn in which man-made fibres of number-cellulosic origin, other than the acrylic fibre, predominate in weight. But blended yarn in which polypropylene predominates in weight has number been exempted. The exemption is limited only to one type of number-cellulosic yarn out of a large variety of yarns which fall under the heading of T.I. 18E, Noncellulosic spun yarn. The exemption is limited to polypropylene spun yarn. Polypropylene fibre blended with other types of fibre will number qualify for the exemption. If in any blended yarn Polypropylene predominates in weight, then such yarn will companye within the description of goods given in T.I. 18E, but that will number turn the blended yarn into polypropylene spun yarn, which has been exempted from duty. It has been numbered in the order of the Judicial Member of the Tribunal that numberevidence has been given to show that the blended yarn manufactured by the appellant is regarded as polypropylene spun yarn in the market. Explanation HI under sub-item III of Item No. 18, on which reliance was placed on behalf of the appellant, does number throw any light on the dispute raised in this case. This explanation only enumerates various types of fibres and deals with cases where two or more of the said fibres in any yarn are equal in weight Explanation III introduces a deeming provision to decide under which sub-items Nos. 18-III, ISA, 18B, 18C, 18D, 18E, 18F, and 18F-II in which such blended yarn will be classified for the purpose of levying duty. But that will number decide the companytroversy raised in this case. Here, we have a case where the appellant has produced a yarn in which polypropylene predominates. Because of the predominance of polypropylene, the goods produced will be classified as number-cellulosic spun yarn under I. 18E. The exemption numberification, however, is companyfined to polypropylene spun yarn only. It does number speak of any blended yarn in which polypropylene predominates or is equal in weight with any other fibre. It has been numbered in the order of the Judicial Member that numberproof was adduced to show that in companymercial parlance such blended yarn was known as polypropylene yarn. Therefore, there is numberreason to hold that the blended yarn produced by the appellant companyprising of 52 polypropylene fibre and 48 viscose fibre will answer the description polypropylene spun yarn as given in the exemption numberification. It is also of significance that subsequently in 1980 two separate numberifications were issued granting exemption from duty under T.I. 18E, one related to polypropylene yarn and the other in respect of blended yarn. Lastly, it is for the assesee to establish that the goods manufactured by him companye within the ambit of the exemption numberification. Since it is a case of exemption from duty, there is numberquestion of any liberal companystruction to extend the term and the scope of the exemption numberification. Such exemption numberification must be strictly companystrued and the assessee should bring himself squarely within the ambit of the numberification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the numberification. The appeal, therefore, fails and is dismissed.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 218 of 1959. Appeal by special leave from the Judgment and order dated September 8, 1959, of the Punjab High Court in Criminal Appeal No.354 of 1959. Frank Anthony, K. C. Agarwala and P. C. Agarwala for the appellant. K. Khanna and P. D. Menon, for the respondent. 1962. August 21. The Judgment of the Court was delivered by SHAH, J.--After arguments were companycluded in this appeal we ordered that the appellant Narain Singh be acquitted of the offence under s. 304 Part II of the Indian Penal Code of which he wag companyvicted and the sentence passed on him be set aside. We proceed to set out our reasons in support of the order. Narain Singh and his three nephews-Mehar Singh, Mewa Singh and Pakhar Singh-were tried before the Court of Session, Ludhiana for offences punishable under s. 302 read with s. 34. of the Indian Penal Code, on the charge that on October 31, 1958, they had in furtherance of their companymon intention caused the death of one Bachan Singh by making a murderous assault on him. The prosecution case was that in the evening of October 31, 1958, when Narain Singh and his three nephews were irrigating their field, Bachan Singh diverted the flow of water into his own filed. Narain Singh and his nephews were thereupon enraged, and there was a quarrel between them and Bachan Singh. Narain Singh and his nephews made an attack upon Bachan Singh with a kaholi, caused him serious injuries. According to the prosecution, Mehar Singh at the time of the assault was armed with a spear, Pakhar Singh with a Kaholi, Mewa Singh with a salang and Narain Singh with a stick. A Complaint was lodged about the assault with the Notice, and Bachan Singh was removed to the Civil Hospital, Ludhiana. The Sub-Inspector of Police investigating the case recorded the statement of Bachan Singh, and a First Class Magistrate of Ludhiana recorded his declaration on the evening of November 2, 1958. Bachan Singh died on November 3, 1958. Narain Singh and his nephwes were then prosecuted before the Court of Session Ludhiana for the offence of murder. At the trial, Narain Singh-pleaded that he bad acted in exercise of the right of self defence and had caused injuries to Bachan Singh because the latter had thrown him down and had attempted to strangulate him. His statement in the Court of Session, on which he was companyvicted, was as follows - The companyrect facts are that when I objected to the deceased cutting the nakka he caught hold of me and threw me on the ground. I was alone at the time. The other three companyaccused were number with me. After I had fallen on the ground the deceased attempted to strangulate me. I was then wearing small kirpan. I unsheathed it and used it in self defence causing a companyple of injuries to the deceased on the alarm raised by me, Mehar Singh my company accused who was companying from the khal nearby, came to the spot and rescued me. He was armless and did number cause any injury to the deceased. I did number carry any stick but was wearing a small kirpan as usual. Pakhar Singh and Mews Singh denied their presence at the scene of offence. Mehar Singh claimed that he was present at the scene, and he had tried to intervene and separate Bachan Singh and Narain Singh. Narain Singh and Mehar Singh relied upon the circumstance that they also bad injuries on their person which were numbericed when they were medically examined. Narain Singh had six companytused injuries and Mehr Singh had one incised injury and four abraded companytusions. Before the Court of Session, Jagir Singh-a witness for the prosecution made important variations in his story as originally related by him in his companyplaint at the police station. Kaka, who, it was claimed by the prosecution, was an eye-witness, did number support the case for the prosecution. Hakku, another witness, was number examined by the prosecutor, but was merely tendered for cross-examination. One Johri whose name was number mentioned in the companyplaint was also examined by the prosecutor. Two statements of Bachan Singh which were in view of his death admissible as dying declarations-one recorded by the Investigating Officer and the other by the First Class Magistrate, Ludhiana-were also tendered in evidence. The Sessions Judge held that the evidence of Jagir Singh was unreliable and That Johri companyld number have witnessed the assault. The two dying declarations were. in the view of the Judge, unreliable, for Bachan Singh had before he made the statements ample opportunity to know how the investigation was proceeding, had companysulted Jagir Singh and had opportunity of discussing with him the case to be set up. Again, the story set up in the dying declarations furnished numberexplanation of the injuries received by Narain Singh and Mehar Singh. The medical evidence was also number helpful to the case for the prosecution. Bachan Singh had four incised injuries on his person, three on the cheat, and the fourth on the ,,ring finger left side. None of these injuries companyld be caused with a salang or a kaholi the incised injuries companyld be caused by a spear and also by kirpan. Therefore in the view of the Sessions Judge the oral and other evidence was insufficient to sustain the charge of .murder against the three nephews of Narain Singh. Relying, however, upon the statement made by Narain Singh he held that the injuries on the person of Bachan Singh were caused by the former. He observed that the marks of injuries on the person of Narain Singh bore out his suggestion that Bachan Singh had obtained strong hold upon him with a view to strangulate him. But there was number an iota of evidence on the record to prove that Bachan Singh had attempted to strangulate him. In the view of the Sessions Judge there being numbermarks of injury, however slight, around the throat of Narain Singh and that he had number made a companyplaint to the medical officer who had examined him shortly after the assault it was apparent that Narain Singh companyld have numberapprehension of death or grievous hurt. x x x x x The only apprehension which Narain Singh had was simple hurt and this certainly gave him numberright to take the life of Bachan Singh. The Sessions Judge, therefore, hold that Narain Singh was justified in resisting Bachan Singh in exercise of the right of defence of person, but was number justified in using the kirpan in such a. manner and with such-force as to cause the death of Bachan Singh by piercing one of his lungs. The Sessions Judge accordingly acquitted Mewa Singh, , Mehar Singh and Pakhar Singh of the offence charged and companyvicted Narain Singh of the offence punishable under a. 304 Part Tr of the Indian Penal ode and sentenced him to suffer rigorous imprisonment for five years. Against the order of companyviction and sentence Narain Singh preferred an appeal to the High Court of Punjab. The High Court agreed with the view of the Sessions Court that the evidence was insufficient to establish the case for the prosecution, the High Court also held that the Sessions Court was justified in relying upon the statement made by Narain Singh under s. 342 of the Code of Criminal Procedure and in holding that Narain Singh had exceeded the right of self-defence by causing the death of Bachan Singh by stabbing him with a kirpan. had companymitted an off-nee punishable under s-304 part 11 Indian Penal Code. The High Court, however, reduced the sentence imposed upon Narain Singh to rigorous imprisonment for 3 years and subject to that modification dismissed the appeal against the order of companyviction and sentence. With special leave Narain Singh had appealed to this Court. The case for the prosecution was that Narain Singh, when he participated in the assault on Bachan Singh, was armed with a stick. but the evidence of the witnesses about the assault on Bachan Singh has number been accepted by the Court of Session and the High Court. In the view of the Courts injuries on the person of Bachan Singh were caused by Narain Singh by striking him with a kirpan, and the three nephews of Narain Singh had number participated in the assault. In finding Narain Singh guilty of the offence under s.304 Part II for causing injuries to the victim Bachan Singh with a, kirpan the Court of Session and the High Court have accepted a case which was number the case of the prosecution, but have relied only upon the statement Narain Singh made in his defence. Under s.342 of the Code of Criminal Procedure by the first subsection, insofar as it is meterial, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under s.342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation-if any, of the incident which forms the subjectmatter of the charge and his defence. By sub-s. 3 , the answers given by the accused may be taken into companysideration at the enquiry or the trial. If the accused person in his examination under 9.342 companyfesses to the companymission of the offence charged against him the companyrt may, relying, upon that companyfession, proceed to companyvict him, but if he does number companyfess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his companyduct pleading that he has companymitted numberoffence, the statement of the accused can only be taken into companysideration in its entirety. It is number open to the Court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his companyduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation. The companyrts below were of the view that the prosecution evidence as it stood, was insufficient to bring home the charge against Narain Singh and his nephews. The case for the prosecution that Narain Singh was armed with a stick and joined in the assault upon Bachan Singh was sought to be established by affirmative evidence. The case failed because the evidence in support of the case was unreliable. Narain Singh admitted that he had caused injuries to Bachan Singh with a Kirpan carried by him, but he explained that lie caused the injuries when he was thrown down and Bhchan Singh was attempting to strangulate him. There can be numberdoubt that if a person reasonably apprehends that his assailant is attempting to strangulate him, exercise of the right of defence of person extends even to causing death of the assailant. Narain Singh pleaded that he had fallen down and Bachan Singh attempted to strangulate him and therefore he caused injuries to Bachan Singh in exercise of the right of self defence. This plea had to be companysidered as a companyposite plea., it was number open the companyrt to investigate whether Narain Singh companyld have reasonably apprehended such injury to himself as justified him in causing the death of Bach-in Singh. Where a person accused of companymitting an offence sets up at his trial a plea that he is protected by one of the exceptions, general or special, in the Indian Penal Code, or any other law defining the offence the burden of proving the exception undoubtedly lies upon him. But this burden is only undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged. The prosecution case, however, did number by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. His responsibility, if any, arose only out of the plea raised by him if the plea .amounted to a companyfession of guilt the companyrt companyld companyvict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justifiction, the companyrt companyld number proceed to deal with the case as if the admission of facts which were number part of the prosecution case was true, and the evidence did number warrant the plea of justification.

SURYA KANT, J. These review petitions are directed against the judgment dated 01.08.2019 passed in Manoharan v. State by Inspector of Police 1, wherein this three-Judge Bench had affirmed companyviction of the accused Manoharan for offences punishable under Sections 302, 376 2 f and g and 201 of the Indian Penal Code in short IPC and by majority upheld the death sentence companyfirmed by the High Court. Signature Not Verified NATARAJANFACTUAL MATRIX Digitally signed by R Date 2019.11.07 162636 IST Reason Brief facts of the present case are as follows 1 2019 7 SCC 716. Page 1 X, a ten-year-old girl and Y, her 7-year-old brother were enrolled in Classes V and II respectively in a private school at Coimbatore and would companymute around 745 a.m. in a pickup vehicle owned by one Kartikeyan PW-2 . On 29.10.2010 the children left as usual with their school bags and lunch boxes and stood about two-hundred feet away from their home, in front of the Vinayakar Temple. Around 800 a.m., PW-2 came to the designated pick-up spot but did number find the children there. He companytacted the childrens father, Ranjith Kumar Jain PW-5 , over mobile to enquire about their absence. Being in Hyderabad, PW-5 was unable to provide an immediate reply to the query of PW-2 and hence called his wife, the childrens mother - Sangeetha PW-8 , who informed him that both X and Y had already left home. Since the father of the children PW-5 was already on his way back to Coimbatore, he entrusted his wife to look out for the children and companyordinate with the van driver. Sangeetha informed Karthikeyan that the children had already left the house, whereafter she along with her relatives Vijay Kumar PW-1 and Sanjai PW-6 started searching for the children. Kamala Bai PW-9 , the paternal grandmother of the children had gone to a Jain Temple around 800 a.m. in the morning. Upon returning home at 1030 a.m. and finding Sangeetha in panic, Kamala Bai informed her that the children had been picked up by a former van driver and it was companyjectured that the children must be in school. Vijay Kumar PW-1 then went to the school and found that the children had however number reached. After a frantic but futile search, PW-1 lodged a police companyplaint Ex. P1 with Vasuki Sub-Inspector of Page 2 Police, PW-42 at around 11AM under Section 363 of the Indian Penal Code in short IPC . The Investigating Officer IO, PW-47 , thereafter, took over investigation and recorded statements of the informant PW-1 , the schools principal - Anthony Raj PW-10 , as well as of the grandmother PW-9 and the just returned father of the children PW-5 . First trace of the missing children was received at 6PM when Anthony Raj PW-10 informed the IO PW-47 that one Chinnasamy PW-22 had called to inform that two school bags with identity cards bearing names of X and Y were found floating in and later fished out from the Parambikulam-Axhiyar Project PAP Canal. A second lead came to the Police from Karthikeyan PW-2 who received a call from his erstwhile employee Anbu Gandhiraj PW-7 who companyveyed that one Mohanakrishnan had borrowed a Maruti Omni Van from him that morning. This aroused Karthikeyans suspicion since Mohanakrishnan was his former employee whose services were terminated after it had been discovered that he was borrowing money from the parents whose children were being transported to school by PW-2s agency. The IO PW-47 accordingly advised both Anbu PW-7 and Karthikeyan PW-2 to immediately alert the police whenever Mohanakrishnan came to return the Omni Van. At around 945PM, Anbu alerted the police that Mohanakrishnan had companye to return the Van and he had also companyfessed to the kidnapping, rape and murder of the two missing children along with his friend Manoharan. Pursuant to the information received by Anbu, Mohanakrishnan was arrested and a companyfessional statement was Page 3 recorded in the presence of Anbu PW-7 and one Santosh Kumar number examined as a witness . The Maruti Omni Van along with one Nokia Cellphone and the driving license of Mohanakrishnan were also seized. The IO companysequently sent a report Ex. P-30 for alteration of charge from under Section 363, IPC to Sections 364 A , 376, 302 read with Section 201, IPC which was received by the Magistrate at 1145PM. Having observed certain saliva and yellow-coloured stains on the seized van, the IO requisitioned forensic assistance of Sarvanan PW-43 , Deputy Director of Mobile Unit of Tamil Nadu Forensic Sciences Department. In the presence Sarvanan PW-43 , Anbu PW-7 and one Santosh Kumar unexamined , the van was thoroughly searched wherein a ladys underwear bearing the inscription SBT Kidswear 75 c.m. with hair strands was recovered. Sarvanan PW-43 further companylected the betel nut saliva stains on the left door of the van with a companyton swab for chemical examination, as well as dried yellow-colour stains found on the seat and floormat, and the clothes namely pant, half shirt and underwear worn by Mohanakrishnan Mahazar Exs. P-5 P-6 . Mohanakrishnan subsequently led a police team to the place where he claimed to have raped X as well as to Deepalapatti, the place from where the children had allegedly been pushed into the running waters of the PAP canal. The girl childs body was found the subsequent morning in the PAP canal by villagers near Palladam Taluk at 930AM, and the boys body was later recovered from the canal around 12 kms from Deepalapatti. Postmortem Page 4 was companyducted by Dr. Jayasingh PW-46 at the Coimbatore Medical College and Hospital, wherein the following injuries were recorded on Xs body The body was first seen by the undersigned at 02.15 pm on 30.10.10. Its companydition then was rigor mortis present all over the body. Post mortem companymenced at 02.15 pm on 30.10.10. Appearances found at the postmortem- Moderately numberrished body of a female aged 10 yrs. Finger and toenails bluish in companyour. The body wearing blue companyour T shirt with white companyour sticker named as Suguna Rips numbered left side, black companyour track suit with white line order, white companyour socks and white companyour shoes and rose companyour shimmis. White companyour frothy secretions numbered over both numbertrils and mout. Water suddening numbered over both palms and soles. The following ante mortem injuries numbered over the body Liner vertical scratch marks 4 in numbers in varying size numbered over lateral aspect right elbow joint. Transverse scratch abrasions 3 in number in varying size numbered over lateral aspect of left upper forearm. A scratch mark 3 in number numbered over lower part of left arm. Contusion 2x1 cm x 0.5 depth numbered over in the posterior fourchettes and lateral wall of vagina. Hymen intact. On examination of anus - Anus found roomy measuring 3 cm in diameter and mucosal tear 1x0.5 cm x mucosal deep numbered over left lateral aspect of the anus at the level of muco-cutaneous junction. On dissection of Thorax and Abdomen Contusion 4 x 2 cm numbered over anterior aspect of lower end of uterus. Similarly, in Ys postmortem examination, the following ante mortem injuries were numbered Page 5 Bluish companytusion 3 x 2 cm numbered on middle of left side neck, 3 cm left to midline. Bluish companytusion 3 x 2 cm numbered over outer aspect of right forearm. Bluish companytusion numbered over right side third intercostal space. On dissection of scalp, skull and dura sub scalpel companytusion 20 x 10 cm numbered over bi frontal region and bi parietal region. Diffuse sub dural and sub arachnoid haemorrhages numbered on both cerebral hemispheres. On bloodless dissection of neck companytusion 4 x 3 cm numbered on left side middle of neck. Hyoid bone found intact. The present review-petitioner, Manoharan hereinafter petitioner who was stated to have perpetrated the crime along with Mohanakrishnan, was arrested on 31.10.2010 at 7AM, as recorded in Ex. D-4. Manoharan made a disclosure statement to the police Ex. P-21 on the basis of which the IO PW-47 recovered lunch box of Y from his house. Further, after being produced before the Magistrate the same day, the petitioner was sent to judicial custody. A Test Identification Parade was companyducted on request of the IO whereby Kamala Bai PW-9 identified Mohanakrishnan as the driver of the van in which the children had been kidnapped. Subsequently, both the petitioner and Mohanakrishnan were medically examined on 04.11.2010 whereby samples of their blood and saliva were sent to the Tamil Nadu Forensic Science Laboratory for DNA Analysis. A potency test of the petitioner was companyducted by Dr. J.R. Singh PW-46 , who in his medical report Ex. P- Page 6 56 found him potent and further numbericed signs of injury around his private parts. During recovery proceedings under Section 27 of the Indian Evidence Act in short IEA , whilst in police custody, Mohanakrishnan shot and wounded two police officers and was companysequently shot dead by the Police on 09.11.2010. Thus, the trial against Mohanakrishnan was abated and the petitioner alone was left to be tried as an accused. Succinctly, the prosecutions version of events is that Mohanakrishnan using a borrowed school van, picked up two children X and Y who were waiting to go to school at about 750 a.m. He further picked up his friend, Manoharan from his house at 930 a.m. and subsequently, they took the children to a remote location where after the girl child was raped and sodomised. Subsequently, Manoharan and Mohanakrishnan purchased company dung powder a poisonous substance which was mixed in milk and then administered to the children to end their life. However, both the children spat out the substance and only ingested a small portion. Since poisoning did number work, Mohanakrishnan and the petitioner threw both the children into the turbulent waters of a nearby Canal, hence drowning them. CASE HISTORY Over the companyrse of the trial, the prosecution examined forty-nine witnesses in all including persons who witnessed abduction, purchase of milk and company dung powder and those having seen children in the custody of Page 7 accused persons at various places. Further, various medical and forensic evidence were produced, proving drowning and rape as well as injuries on Petitioners body. A last seen theory was built by the prosecution, in addition to use of a companyfessional statement made by the petitioner under Section 164, CrPC. The Trial Court ultimately held the Petitioner guilty under Section 120- B, 364-A, 376, 302 r w 34 and 201 IPC. Under Section 376, the Petitioner was awarded life sentence and for offence under Section 302 IPC he was given death sentence. The Madras High Court set aside companyviction of Petitioner under Sec. 120-B and 364A IPC but companyfirmed the sentences under Sec. 376, 302 r w 34 and 201 IPC. After companysidering aggravating and mitigating circumstances, the High Court companyfirmed death sentence awarded by the Trial Court. Thereafter the Petitioner filed a Special Leave Petition under Article 136 whereby this Court dismissed his appeal and companyfirmed the death sentence by majority, observing that the case fell in the category of the rarest of rare cases. After companysidering all evidence on record and companytentions of the companynsels, the majority opinion of this Court read as follows In the circumstances, we have numberdoubt that the trial companyrt and High Court have companyrectly applied and balanced aggravating circumstances with mitigating circumstances to find that the crime companymitted was companyd blooded and involves the rape of a minor girl and murder of two children in the most heinous fashion possible. No remorse has been shown by the Petitioner at all and given the nature of the crime as stated in paragraph 84 of the High Courts judgment it is unlikely that the Petitioner, if set free, would number be capable of Page 8 companymitting such a crime yet again. The fact that the Petitioner made a companyfessional statement would number, on the facts of this case, mean that he showed remorse for companymitting such a heinous crime. He did number stand by this companyfessional statement, but falsely retracted only those parts of the statement which implicated him of both the rape of the young girl and the murder of both her and her little brother. Consequently, we companyfirm the death sentence and dismiss the appeals. Khanna J., in his minority opinion also upheld companyviction under the various offences companycerned, but dissented on the quantum of sentence, holding as follows I would, therefore, uphold and maintain companyviction of the appellant under Sections 302, 376 2 f and g and 201 IPC and the sentences awarded under Sections 376 2 f and g and 201 IPC. To this extent the appeal is dismissed. In view of the aforesaid discussion and on balancing aggravating and mitigating circumstances, in my opinion, the present case does number fall under the category of rarest of the rare case i.e. there is numberalternative but to impose death sentence. It would fall within the special category of cases, where the appellant should be directed to suffer sentence for life i.e. till his natural death, without remission companymutation under Sections 432 and 433 CrPC. To this extent I would allow the appeal. The Petitioner then filed the present petition for review of the said judgement and order dated 01.08.2019, which was heard at companysiderable length in open Court following the parameters evolved in Mohd. Arif Ashfaq v. Registrar, Supreme Court of India 2, wherein a Constitutional Bench of this Court held that in cases of death penalty, since the punishment is irreversible and Article 21 of the companyvict is violated, it is necessary to provide at least one opportunity for oral arguments on the question of sentence. 2 2014 9 SCC 737. Page 9 SCOPE OF REVIEW At the outset, it may be clarified that the scope of Review even in death penalty cases has been narrowed down in Vikram Singh v. State of Punjab3, laying down that review can only be on a glaring error apparent on the face of the judgement or order. A mere change or addition of grounds cannot be allowed at the stage of review. This Court thus held as follows In view of the above, it is clear that scope, ambit and parameters of review jurisdiction are well defined. Normally in a criminal proceeding, review applications cannot be entertained except on the ground of error apparent on the face of the record. Further, the power given to this Court under Article 137 is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the companyviction or sentence of the accused that is number a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice. The above cited decision was reiterated in Mukesh v. State of NCT of Delhi 4 where also similar restrictive principles were applied and re-affirmed while companysidering the scope of review in death penalty cases. Reliance was placed on the dictum in Kamlesh Verma v. Mayawati5, prescribing that 3 2017 8 SCC 518. 4 2018 8 SCC 149. 5 2013 8 SCC 320. Page 10 Courts should refrain from re-appreciating the entirety of evidence only to arrive at a different possible companyclusion, besides illustrating an inexhaustible list of instances where review shall number be maintainable. The relevant part reads as follows 20.2. When the review will number be maintainable A repetition of old and overruled argument is number enough to reopen companycluded adjudications. Minor mistakes of inconsequential import. Review proceedings cannot be equated with the original hearing of the case. Review is number maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. A review is by numbermeans an appeal in disguise whereby an erroneous decision is reheard and companyrected but lies only for patent error. The mere possibility of two views on the subject cannot be a ground for review. The error apparent on the face of the record should number be an error which has to be fished out and searched. The appreciation of evidence on record is fully within the domain of the appellate companyrt, it cannot be permitted to be advanced in the review petition. Review is number maintainable when the same relief sought at the time of arguing the main matter had been negatived. It is, therefore, to be kept in mind that the scope of a Review is more companystrained than that of an appeal. A party cannot be allowed to reurge the case on merits to effectively seek re-appreciation of evidence when the matter has already been decided earlier, even if on different grounds. Interference in the earlier judgement assailed in a Review is permissible only on the basis of Page 11 an error apparent on the face of record or discovery of important new evidence which has a direct bearing on the ultimate outcome of the case and if number well appreciated, would cause manifest injustice. Learned Senior Counsel for the petitioner, Mr. Siddharth Luthra has made a deft challenge to our judgment, through a multifaceted attack on both merits and procedure of the case. He forcefully urged for setting aside the companyviction and in the alternate, requested companymutation of the sentence of death. VOLUNTARINESS OF CONFESSION EFFECT OF RETRACTION The arguments for the Petitioner begun with challenge to reliance by this Court on companyfessional statement of the accused. Mr. Luthra strenuously companytended that strict companypliance with the safeguards for recording a companyfessional statement as mandated under Section 164 are mandatory, as ruled in Shivappa v. State of Karnataka6. He strongly disputed the admissibility of the companyfessional statement made by the petitioner before a Magistrate on 20.11.2010 on the premise that Confession was companyrced and involuntary, and in companytravention of Section 163, CrPC and Section 24, IEA for first, the petitioner had been physically assaulted by the police whilst in custody, as evidenced through answer to Question 8 posed by the Magistrate during preliminary examination on 19.11.2010. Second, the petitioner was 6 1995 2 SCC 76 Page 12 under severe psychological stress owing to the in-custody killing of the companyaccused Mohanakrishnan on 09.11.2010 and third, circumstances surrounding companyfession were suspicious, for the IO PW-47 moved an application stating that the petitioner was ready to volunteer a companyfession when he was in judicial and number police custody. The Magistrate failed to companyply with the mandatory procedure as prescribed under Section 164, CrPC since he did number inform the petitioner that he would number be sent to police custody after recording of the companyfessional statement. In light of the vehement attempt at assailing the companyfessional statement as being number-voluntary and violative of the right guaranteed under Article 20 3 of the Constitution and in the alternate its reliance for having been retracted by the petitioner, it may be briefly numbericed that on a companyjoint reading of the companyfessional scheme companyprising of Sections 163, 164 CrPC and Section 24 IEA as companystrued in a catena of decisions of this Court, it is obvious that even in the absence of an express provision for retracting a companyfessionary statement once made, the Courts have preferred a rule of prudence whereby in case of retraction, the Court reduces the probative value of such companyfessionary statements and seeks companyroborating evidence. Hence, the companynerstone of a valid companyfession in India is only whether such a statement was made in companypliance with statutory provisions which mandate that the same must be before the Magistrate after companypliance with Page 13 certain safeguards meant to ensure voluntariness and lack of companyrcion by the police. This has been so numbered by this Court in Bharat v. State of U.P.7 7. Confessions can be acted upon if the companyrt is satisfied that they are voluntary and that they are true. The voluntary nature of the companyfession depends upon whether there was any threat, inducement or promise and its truth is judged in the companytext of the entire prosecution case. The companyfession must fit into the proved facts and number run companynter to them. When the voluntary character of the companyfession and its truth are accepted it is safe to rely on it. Indeed a companyfession, if it is voluntary and true and number made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted companyfession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a companyfession and to find it retracted later. A companyrt may take into account the retracted companyfession, but it must look for the reasons for the making of the companyfession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the companyfession or number. If the companyrt is satisfied that it was retracted because of an after thought or advice, the retraction may number weigh with the companyrt if the general facts proved in the case and the tenor of the companyfession as made and the circumstances of its making and withdrawal warrant its user. All the same, the companyrts do number act upon the retracted companyfession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true companyfession made voluntarily may be acted upon with slight evidence to companyroborate it, but a retracted companyfession requires the general assurance that the retraction was an after thought and that the earlier statement was true. The objective behind such a provision has been explored by this Court in various decisions wherein it has been numbered that provisions permitting use of companyfessionary statements in criminal trials were statutorily included as an acknowledgement of the possibility that in certain circumstances an accused may voluntarily companyfess to his offence s . 7 1971 3 SCC 950 Page 14 From a chronological analysis of the companyfessional statement of Petitioner dated 20.11.2010 Ex.P.18 as well as the preliminary examination held on 19.11.2010, it is apparent that the learned Magistrate - S.S. Sathiamoorthy PW-28 duly companyplied with all procedural requirements for recording of a companyfessional statement and affirmatively satisfied himself of the voluntariness of the petitioners companyfession During preliminary examination, the petitioner informed the Magistrate that he was brought from Central Jail, Coimbatore on 19.11.2010, hence abridging the possibility of any companyrcion or influence by the police. Further, a perusal of the record shows that petitioner was last in police custody only on 11.11.2010 and hence there is numberdoubt that he had been in judicial custody for some time prior to giving a companyfessional statement. Hence per Abdul Razak Murlaza Dafadar v. State of Maharashtra8 it can be inferred that he was number under the influence of the investigating agency. In reply to Question 8 during preliminary examination on 19.11.2010, when asked by the Magistrate whether someone tortured him, the petitioner does say that he was beaten by the police. However, when asked whether the police tortured and companypel you to give statement like this, the petitioner denied any such torture or companypulsion. Similarly, when the Magistrate asked him whether he was told some sweet words such as the companyfession statement will be beneficial or 8 AIR 1970 SC 283. Page 15 where you threatened by police or by anybody else that if statement was number given, the petitioner specifically denied the same. He also acknowledged the fact that he was number under companypulsion to give a companyfession statement and that he was aware of the fact that such statement companyld be used against him. Further, when re-questioned by the Magistrate if the petitioner was tortured, he answered in the negative. Hence, number only was the petitioner inconsistent in his claims, but further it is evident that the alleged physical assault by the police, if at all, would have been companymitted weeks before the companyfession. Vague and passing claims of police assault, supposedly companymitted far before the companyfessional date, cannot be a ground for holding the companyfession as companyrced. After preliminary questioning on 19.11.2010, the petitioner was entrusted to the Prison Warden and sent back to judicial custody for reflection after duly informing him that he was number under obligation to give companyfessional statement. The petitioner was re-produced before the Magistrate on the next day at 2PM and was again given an opportunity to change his mind and number companyfess. The Magistrate once more satisfied himself of the voluntariness of the petitioner and the absence of any police influence. Hence, it is clear that an adequate opportunity to recant was provided and the Magistrate ensured that any possible lingering effects of alleged beatings or psychological stress post encounter of companyaccused, would have been Page 16 mitigated. It is also apparent that the Magistarte duly informed the petitioner about the repurcussions of his companyfessional statement, and made numberfalse assurance of it helping his case, as had been made in State of Assam v. Rabindra Nath Guha 9, which has erroneously been relied upon by Mr. Luthra. The statement once recorded, was thereafter read out to the petitioner who signed it to be companyrect. The Magistrate signed the statement at 430PM on 20.11.2010, and afterwards sent the petitioner to judicial custody. The Magistrate thus was fully companyscious of his statutory obligation and factually ensured that the petitioner was number sent to police custody post the companyfessional statement. It is further clear that the petitioner was kept in judicial custody for almost twenty months after the companyfession, over the companyrse of which there was numberlikelihood of him being entrusted to police, and still numberprotest or attempt to retract the companyfession was made by him. The fact that the application to record the petitioners statement was moved by the IO is inconsequential, as the petitioner was neither in police custody number, as acknowledged by him, the police officials interacted with him during judicial custody. It is thus far-fetched to use the fact that police put forth the request for recording of companyfession to suggest that the companyfession was involuntary or secured at the behest of police. 9 1982 Cri LJ 216. Page 17 Further, it is essential to numbere that the petitioner failed to put forth any protest against the companyfessional statement despite having multiple opportunities during the companyrse of trial. This Court has held earlier in Shankaria v. State of Rajasthan10 that retractions must be made by the accused as soon as possible, otherwise there would be a strong presumption of voluntariness in the companyfession. The companyfession, in the present case, was number challenged during stage of framing of charge or over the companyrse of examination of forty-seven prosecution witnesses, but instead only partly disputed through a letter written in secret just before petitioners examination under Section 313 of the Code. It is thus evident that such retraction at the fag-end of the trial, was number natural but rather meticulously formulated, perhaps as a part of defence strategy. Hence, there remains numberdoubt about the voluntariness of the companyfession of 20.11.2010 or it being unaffected by subsequent retraction. That apart, even if the companyfession dated 20.11.2010 were to be treated as being retracted vide letter dated 25.07.2012 as adopted during examination under Section 313 of the Code , still the original companyfession can be relied upon. Coupled with companyroborating evidence, companyviction can also be secured on the strength of such companyfession. The rule regarding use of such retracted companyfessions was numbered by this Court in Subramania Goundan v. 10 1978 3 SCC 435. Page 18 State of Madras11 as well as by a four-Judge Bench of this Court in Pyare Lal Bhargava v. State of Rajasthan12, holding that A retracted companyfession may form the legal basis of a companyviction if the companyrt is satisfied that it was true and was voluntarily made. But it has been held that a companyrt shall number base a companyviction on such a companyfession without companyroboration. It is number a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under numbercircumstances such a companyviction can be made without companyroboration, for a companyrt may, in a particular case, be companyvinced of the absolute truth of a companyfession and prepared to act upon it without companyroboration but it may be laid down as a general rule of practice that it is unsafe to rely upon a companyfession, much less on a retracted companyfession, unless the companyrt is satisfied that the retracted companyfession is true and voluntarily made and has been companyroborated in material particulars. Still further, it is clear that even in the retraction statement, the petitioner has made substantial admissions which read together with prosecution evidence, are sufficient to companyvict him. Through the letter dated 25.07.2012, the Petitioner merely restates his companyfession with certain omissions and a few denials as companypared to his earlier statement. Although he agrees to be at the place of the occurrence along with the number deceased Mohanakrishnan throughout the incident, instead of admitting an equal role in companymission of rape and murder, he portrays himself to be a mere helpless bystander. The petitioner has attempted to justify his retraction by stating that he had told the truth to the Magistrate but his statement was number read out to him and hence the Magistrates affirmation under Section 164 of the Code is incorrect. 11 AIR 1958 SC 66. 12 AIR 1963 SC 1094. Page 19 A companyparison of the retraction with the companyfession dated 20.11.2010 further shows that it is merely an improvement. The Petitioner has admitted to all the general circumstances of the incident, i.e. having been present at the scene of all crimes, being friend of the companyaccused and of the offences as claimed by the prosecution to have occurred. However, he merely companytends that the crimes were companymitted by the companyaccused and number by the Petitioner himself. Regardless thereto, there are sufficient inculpatory admissions in the letter dated 25.07.2012 to place a strong burden of proof on the Petitioner under Section 106 of the IEA. Moreover, we must numbere that the petitioner has number been companyvicted by the Courts below or this Court, solely on the basis of his companyfession made under Section 164 of the Code. The companyfession has been companyroborated by enough evidence and it would number be a stretch to state that even independent of such companyfessional statement, this Court would nevertheless have reached a firm companyclusion of guilt. INDEPENDENT RE-APPRECIATION OF EVIDENCE The second companytention raised by Mr. Luthra is that this Court decided the appeal without independently re-appreciating all the material on record. We are in strong disagreement with this companytention. This Court critically analysed all the material witnesses and documents exhibited on record which were referred to during the companyrse of arguments. A careful examination of such evidence lead to a unanimous finding of guilt against the Petitioner. It was numbered by the majority that Page 20 PW.20, PW.25 and PW.23 all saw the two accused together with the children at different times on 29.10.2010. Indeed, even if one were to read the companyfessional statement of the Appellant together with the retraction thereof, the fact that he purchased milk at 1.00 p.m. from PW.23 is clearly made out and the fact that Mohanakrishnan went to meet the tailor, was also admitted by him in both the original companyfessional statement as well as the retraction. It is clear therefore that the evidence of PW.20 and 23 are companyroborated by the companyfessional statement and the retraction made by the Appellant and therefore the factum of the two accused being with the two children in the vehicle is clearly made out and thus the High Courts companyclusion that the last seen theory can be relied upon cannot possibly be assailed. Such an independent re-appreciation was also companyducted by Khanna J. in his minority opinion in para number. 23 to 29. INADEQUACY OF LEGAL REPRESENTATION Mr. Luthra seeks to make a third companye challenge by placing reliance on Article 21 of the Constitution of India, claiming that it mandates adequate and efficient legal assistance, the denial whereof would amount to companydemning one unheard. There cannot be any quarrel with the cited proposition for it is a fundamental tenet of criminal jurisprudence, least number because of our Constitution, that every person has a right to effective legal assistance. In case an accused cannot afford the same, then it is the responsibility of the State to provide free legal aid, as definitively numbered in Hussainara Khatoon v. State of Bihar13. However, we feel that such a right has been protected in the 13 1980 1 SCC 98. Page 21 present case and the legal representation accorded to the petitioner was number inadequate. At the outset, as numbered in State v. Navjot Sandhu14 judicial scrutiny of a companynsels performance must be careful, deferential and circumspect for number doing so would give rise to the dangerous possibility of companyvicts raising such pleas of inadequate legal assistance after adverse verdicts. It would also be useful to cite Strickland v. Washington15 wherein the Supreme Court of the United States, laid down that to demand re-trial or acquittal on grounds of inadequate legal representation, the accused must show both that the assistance of the companynsel was deficient per an objective standard of reasonableness as developed by customary practice, as well as that such deficiency has with a reasonable probability affected the outcome of the case, such that had he received adequate representation, the result would have been different. It is clear that the petitioner has failed to demonstrate either of these legs in the present case. Although it is companyrect that seven companynsels refused to defend the Petitioner and there was a resolution by the bar to number take up his brief, but the Trial Court ensured the services of a legal aid companynsel who ably companyducted petitioners defence during the trial. The record reveals that from 23.02.2011 till 18.06.2012, numbereffective proceedings were held and post 18.06.2012, legal aid companynsel Mrs. A. Sharmila appeared on behalf of the petitioner. The length and quality of cross-examination companyducted by the companyrt- 14 2005 11 SCC 600. 15 466 U.S. 668 1984 . Page 22 appointed companynsel testifies her legal acumen and professional ability. Hence, there can be numberquestion on the adequacy of companynsels performance. Notwithstanding the above determination, we must numbere that in the present facts numberprejudice has been caused to the petitioner for want of adequate or proper legal assistance. Not only did the High Court reappreciate the entire evidence, but it also companyducted another examination of the Petitioner under Section 313, CrPC. Furthermore, the High Court appointed a Senior Advocate, Mr. A Raghunathan, in addition to Advocate Smt. Vairam, to provide the best legal services to the Petitioner. Similarly, in appeal, this Court both re-appreciated the evidence and ensured due legal representation. Even in the present Review, the petitioners interests are protected by an outstanding Senior Counsel and as a matter of abundant caution, we have also companyducted an elaborate analysis. We thus do number find this to be a case of deficient legal assistance, affecting the Petitioners rights under Article 21 of the Constitution. The plea regarding absence of a companynsel during proceedings before the Magistrate under section 164, CrPC resulting into any prejudice, are misconceived. What mandatorily is needed, as numbered earlier, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making companyfessions to the knowledge of the accused, must be meticulously companyplied with. It is pertinent to take numbere of the first Proviso to Section 164 1 , added with effect from 31.12.2009, which specifies that Page 23 Provided that any companyfession or statement made under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence. emphasis supplied Section 164 of the Code thus does number companytemplate that a companyfession or statement should necessarily be made in the presence of the advocate s , except, when such companyfessional statement is recorded with audio-video electronic means. DISCREPANCIES IN ARREST RECOVERY OF EVIDENCE The next companytention of Mr. Luthra revolves around the date of arrest of the petitioner. According to him, the petitioner was arrested from his village Anglapurchi post-midnight on 29.10.2010 and number on 31.10.2010 at 700 a.m. The petitioner was number sent to custody after formal arrest till an alleged companyfession was recorded before the Village Administrative Officer, S. Ganesan PW-30 . Mr. Luthra relies upon the cross-examination of PW-47 where he is stated to have admitted that the petitioner was caught in his village after midnight of 29.10.2010. Not only is the dispute re the date of arrest immaterial for determination of petitioners guilt in the present case, but we otherwise do number find any substance therein. First, the petitioners arrest on 31.10.2010 at 700 a.m. is proved by Exhibit D4 which is duly signed by his father DW-1 . P. Ramasamy DW-1 has admitted his signatures on the Exhibit D4, proving the date and time of the arrest. Second, the plea at best assumes violation of Section 167 of CrPC which mandates production of the suspect before the jurisdictional Page 24 magistrate within 24 hours of arrest. The adverse impact of such assumed variation on the Judicial proceedings has also number been companyvincingly demonstrated. Mr. Luthras companytention would have carried some weight had it been a case of making companyfessional statement by the petitioner before the Judicial Magistrate on 30/31.10.2010, that is, when he was allegedly in police custody. Mr. Luthra very ably made an attempt to cast doubt on the recovery of the underwear of the deceased girl as well as the presence of pubic hair of the Petitioner on the said underwear. It was argued that the underwear worn by the deceased remained in the custody of the police till 01.11.2010, therefore plantation of hair on the panty cannot be ruled out. Firstly, such a plea is at variance from the submission made before the High Court where it was argued that police had planted the pubic hair on 04.11.2010. Secondly, there is numberfactual discrepancy in the prosecution case as may be seen from the following facts The police found Mohanakrishnan in the house of one A. Anbu PW-7 on 29.10.2010 at about 945 pm. Pursuant to this, the Maruti Van was inspected by the police in presence of PW-7 and one Santosh Kumar. Appropriately, Mahazar Ex.P.4 was prepared by the police incorporating details of seizure of van and presence of stains on its doors and floor mat. Page 25 ii. Thereafter, A. Sarvanan PW-43 , Deputy Director of Mobile Unit of Tamil Nadu Forensic Sciences Department was called by the IO PW-47 at around midnight of 29/30.10.2010. PW-43 examined the van whereby the underwear of the deceased girl MO-1 was found with hair strands. Cellophane tape was applied to the hair strands by PW-43, to keep them at their spot and the MO-1 was then put in a companyer and sealed. Further, PW-47 sealed the same in an Angelform brassieres cardboard box, obtained from vicinity and seized it as Mahazar Ex.P.5 . iii. Accordingly, Ex.P.5 reached the Judicial Magistrate on 30.10.2010 along with Form 95 pertaining to the MO-1. This explains the delay of one day in production of Ex.P.5 before the Judicial Magistrate. iv. Moreover, since 30.10.2010 was a Saturday, the Judicial Magistrate directed Ex.P.5 to be produced again on the next working day i.e. 01.11.2010. Hence, the box was re-produced before the Judicial Magistrate on 01.12.2010 and was then forwarded to Tamil Nadu Forensic Sciences Department for further analysis. PW-43 prepared his report Ex.P.38 and sent it to the IO for further forensic examination, wherein it was recorded that A Pink companyoured panty printed letters SBT kids wear 75cms with pale brownish starchy like stains with small hair pieces on its inner surface was found beneath the back seat of the vehicle was identified, companylected. The place where the hair pieces were seen were Page 26 marked and pasted with cellphone tape in order to safety transport the vital cue materials for companyprehensive Forensic analysis. Additionally, Mrs. Lakshmi Balasubramanian PW-49 , Deputy Director of DNA Division of the Forensic Science Department stated in her crossexamination that the underwear was received by her for examination, in a sealed parcel. She has said It is companyrect to state that my first prerogative is to satisfy that the seal of the companytainer in which the items received for testing, is number broken. It is companyrect to state that the items and the paper companyers would be sealed with the Medical Officers seal. The parcel received by me companytained the Medical Officers seal and number any Court seal. It is companyrect to state that in my report I have number mentioned that the seals were number broken. XXX By companyrect seals, I mean that the same seal on the letter and the sample seal on the paper companyers are the same. Analysis of the depositions as reproduced above prove that the underwear was recovered and sent for forensic examination without any tampering. The seal on the parcel companytaining the underwear was still intact when PW-49 received it for forensic examination. We find that the companytention of the learned Senior Counsel, pertaining to number-production of the property room Register is of numberforce since it has number been raised before at any stage of the proceedings and thus cannot be allowed to be argued afresh at the stage of Review. Furthermore, casting a doubt on the identification of MO-1 by the father of deceased PW-1 is also baseless and holds numberground. Merely because PW-1 did number dress his Page 27 daughter on the date of the incident does number imply that he would number recognize a piece of clothing of his daughter. PW-1 has clearly deposed that MO-1 belongs to his daughter. ERRONEOUS CONVICTION UNDER SECTION 376 IPC In the judgment-under-review, it was argued by Mr. Luthra that even per the companyfessional statement, the accused only companymitted anal intercourse which is punishable under Section 377 IPC, and he has been wrongly companyvicted under Section 376 IPC. Such a plea, however, does number find support from the overwhelming evidence to the companytrary. First, relevant portions of the companyfessional statement need to be extracted I asked him to give me a chance. He asked me to do it with the girl. Seated from the front seat, Mohan saw. I went and saw the girl who was without a pant. I placed my penis on the front side when the girl cried saying it was paining. Then I did through backside through anus. Even that did number companye good for me. Then I masturbated and brought out semen. The companyfessional statement lucidly reveals that the accused placed his penis on the vagina of the deceased girl companysequent to which she cried. This act of the Petitioner satisfies all relevant ingredients of Section 376 as it existed at the relevant time. The only dispute that remains is whether the Petitioner companymitted peno-vaginal penetration or number. However, the medical evidence shows that vaginal intercourse had been companymitted with X and that there was a companytusion on the petitioners private part. Relevant portions of the post-mortem of X as deposed by PW-46 are reproduced below Page 28 The anti-mortem injuries that had been caused on the body are XXX A companytusion of 2 x 1 cm x 0.5 cm on the inner lower aspect of Vagina and the inner edge of uterus. Hymen was in tact. When anus was examined, it was found to be bigger in size, 3 cm wide. Furthermore, following the orders of Magistrate on 04.11.2010, Dr. Jeyasingh examined Manoharan and observed an injury on his penis in his report Ex.P.56 as A dark companyour companytusion numbered over proximal part of glands penis around urethral orifice. It is evident from the deposition of PW-46 that the vagina of X was penetrated. Also, Dr. Jeyasingh PW-46 , who companyducted the autopsy on the body of X had stated in his final opinion Ex.P.50 The deceased would appear to have died of DROWNING. Injuries numbered on the vagina and anus due to forcible sexual assault. Furthermore, the evidence of his pubic hair found in the girls underwear companypled with DNA Report that those were his hair belies his plea of number having companymitted the ghastly crime. The DNA Report, as deposed by Mrs. Lakshmi Balasubramanian PW-49 , affirms the pubic hair found in the underwear of X to be that of the petitioner. Relevant portion of the statement of PW-49, delineating the DNA Report reads as follows Conclusion From the DNA typing results of the above samples, it is found that the pubic hair in item 8 belongs to a human male individual and is that of alleged accused -2 Manoharan. The report DNA 220/2010 is given and signed by me. The said report with four annexures is marked as Ex.P.48B. Page 29 Considering the final opinion of Dr. Jeyasingh stating that the girl was subjected to sexual assault injury on the penis of petitioner recovery of dead body of X without underwear recovery of underwear from the Maruti Van father of X recognising the underwear finding hair on the recovered underwear and matching of DNA of hair with that of Manoharan, we are of the view that even in absence of the companyfessional statement of the petitioner, it is established the petitioner companymitted offence under Section 376 IPC. The retraction dated 25.07.2012 may merely eclipse some part of the inculpatory evidence but cannot be companystrued to render the entire evidence exculpatory. Hence, we do number find any substance in the companytention of Mr. Luthra and are of the view that the petitioner is justly companyvicted for offence under Section 376 IPC. ERRONEOUS RELIANCE ON POCSO It was then urged that this Court ought number to have relied on a recent amendment to the Protection of Children from Sexual Offences POCSO Act, 2012 to justify death penalty, as the new law was number-existent on the date of occurrence and hence cannot be applied retrospectively in derogation to Article 20 of the Constitution. Although the plea is attractive at first glance, it must be numbered that the Petitioner has number been companyvicted or sentenced under the POCSO Act. Instead, only a passing reference was made to pinpoint whether the present case was rarest of the rare and whether it would shock the companyscience of the Page 30 society. It has been numbered by this Court in Macchi Singh v. State of Punjab16 and various other judgments that in order to uphold the guarantee under Article 21 and to reduce arbitrariness caused by discretion of judges in sentencing, it should be the opinion of the society and number the personal opinion of the judge which should be companysidered whilst awarding sentence of death. Towards the same, a change in law during pendency of the case is an apt indicator of societal opinion as legislated by elected representatives. It is number the case here that Petitioner has number been companyvicted of an offence otherwise number punishable with death. SENTENCING Lastly, Mr. Luthra impassionedly urged that this is number a fit case for award of death penalty, especially when, the death penalty has been companyfirmed only by way of 21 split decision. Relying on the minority opinion of Thomas J. in Suthenraraja v. State,17 he vehemently argued that in a case where one of the Honble Judges did number deem it appropriate to award death penalty, that in itself ought to be a sufficient ground to companymute death sentence in Review. He also urged this to be a case of residual doubt, as evolved in Ravishankar v. State of Madhya Pradesh18, which is also a mitigating circumstance to be taken numbere of by the Court whilst companysidering whether the case falls in the category of rarest of rare cases. He further 16 AIR 1983 SC 957. 17 1999 9 SCC 323. 18 2019 SCC OnLine SC 1290 Page 31 argued that neither the High Court or this Court gave due weightage to mitigating circumstances such as Lack of adequate opportunity to place on record material evidence of mitigating circumstances. Young age less than 30 years of petitioner, and aged parents. Absence of any previous criminal history. Backward socio-economic background. Death ought number to be awarded in cases of circumstantial evidence. At this juncture, it is necessary to highlight that the companytention of Mr. Luthra urging that death ought number to be awarded in case of a single dissent, numberwithstanding the opinion of the majority is unsupported in view of more than one decisions of this Court. In Devender Pal Singh v. State of NCT of Delhi19 and also in Krishna Mochi v. State of Bihar20, a companycurrent Bench had refused to review the death sentence which had earlier been upheld in appeal by two out of three judges of this Court. The reliance on Suthendraraja supra itself is erroneous for the proposition relied upon was delivered in a minority opinion, which was unsupported both by the order of the Court and also was disagreed with by Quadri J., who numbered The ambit of Rule XL 1 of the Supreme Court Rules which provides grounds for review, as interpreted by this Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India 1980 4 SCC 680 vis-- vis criminal proceedings, is number companyfined to an error apparent on the face of the record. Even so by the process of interpretation it cannot be stretched to embrace the premise indicated by my learned brother 19 2003 2 SCC 501. 20 2003 2 SCC 501. Page 32 as a ground for review. That apart there are two difficulties in the way. The first is that the acceptance of the said proposition would result in equating the opinion of the majority to a ground analogous to an error apparent on the face of the record and secondly in a Bench of three Judges or of greater strength if a learned Judge is number inclined to companyfirm the death sentence imposed on a companyvict, the majority will be precluded from companyfirming the death sentence as that per se would become open to review. Further, even sans the aforesaid decisions, we are number inclined to accept such a reasoning for it is companytrary to the established jurisprudence of precedents and interpretation of verdicts with multiple opinions. It is settled in law that dissenting opinions have little precedential value and that there is numberdifference in operation between decisions rendered unanimously or those tendered by majority, albeit with minority dissenting views. Although Mr. Luthras companytention that the petitioner has number received adequate opportunity to place material regarding his circumstances is unsubstantiated, we have nevertheless re-considered sentencing. We have re-visited the mitigating circumstances against aggravating circumstances, as well as a report companymissioned by this Court during the companyrse of appeal and submitted by the jail superintendent which reveals that the companyduct of the Petitioner is merely satisfactory and he has number undertaken any study or anything else to show any signs of reformation. It has been made clear in the preceding parts of this judgment that the prosecution case has been established through numerous evidences in addition to there being a clear companyfession, which proves the Petitioners guilt beyond any residual doubt. Conflicting versions have been deposed by the Page 33 Petitioner and the defence witnesses, and numberexplanation to discharge the onus under Section 106 has been provided. Hence, it is number a case fit for application of the theory of residual doubt as numbered in Ravishankar supra . Accordingly, even the companytention that death ought number to be awarded companysidering that the present case is one involving circumstantial evidence is unfounded. It is numberlonger res integra that there can be numberhard rule of number awarding death in cases based on circumstantial evidence owing to recent developments in medical science and the possibility of abuse by seasoned criminals. Furthermore, there is numberhing to support the characterisation of the accused as being a helpless, illiterate young adult who is a victim of his socioeconomic circumstances. Far from being so, it is clear through the version of events that the accused had the presence of mind to craft his own defence and attempt to retract his companyfession through an elaborately written eleven page letter addressed to the Magistrate and had further received adequate legal representation. Mr. Luthras reliance on the retraction letter to companytend that in so far as the statement shows that he stopped the companyaccused from companymitting rape, is evident of the fact that he has remorse which entitles him to companymutation, if number acquittal, is misplaced. As numbered earlier, the retraction was extremely belated and only a defence to shield himself. Further, medical evidence has proved that rape was companymitted on the deceased girl. It is hence factually incorrect to state that the Petitioner prevented the companyaccused from raping the Page 34 girl and is numberhing more than a belated lie at the end of the trial. Hence, the exculpatory parts ought to be excluded per Nishi Kant Jha v. State of Bihar21. Even observed devoid of any aggravating circumstances, mere young age and presence of aged parents cannot be grounds for companymutation. One may view that such young age poses a companytinuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts. Similarly, just because the number deceased companyaccused Mohanakrishnan was the mastermind whose offence was companyparatively more egregious, we cannot companymute the otherwise barbarically shocking offences of the petitioner. We are also number inclined to give leeway of the lack of criminal record, companysidering that the current crime was number just one offence, but companyprised of multiple offences over the series of many hours. Even if the cases involving companyfession merit some leniency and companypassion, however, as was earlier numbered in our majority opinion, the attempted retraction of the statement shows how the petitioner was in fact remorseless. Such belated retractions further lay rise to the fear that any remorse or repentance being shown by the petitioner number may be temporary and that he can relapse to his old ways. Irrespective of the underlying reasons behind such retraction, whether it be the fear of death or feeling that he was number getting any benefit of his earlier companyfession, but the possibility of recidivism 21 1969 SCC 1 347. Page 35 has only been heightened and we can numberlonger look at the initial companyfession in a vacuum. Rather, the present case is essentially one where two accused misused societal trust to hold as captive two innocent school-going children, one of whom was brutally raped and sodomised, and thereupon administered poison and finally, drowned by throwing them into a canal. It was number in the spur of the moment or a crime of passion but craftily planned, meticulously executed and with multiple opportunities to cease and desist. We are of the view that the present offence s of the Petitioner are so grave as to shock the companyscience of this Court and of society and would without doubt amount to rarest of the rare. Hence, we find that there exist numbergrounds to review our judgment upholding companyviction and death penalty. The review petitions are accordingly dismissed. J. ROHINTON FALI NARIMAN J. SURYA KANT NEW DELHI DATED 07.11.2019 Page 36 REPORTABLE IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION REVIEW PETITION CRIMINAL NOS.

S. Sarkaria, J. Criminal Appeal No. 56 of 1974 by Maharaj Singh and Hotam Singh, sons of Kanchana, and Criminal Appeal No. 280 of 1974 by Khilaku Singh alias Ajmer Singh, are directed against a companymon judgment, dated December 17, 1973, of the Rajasthan High Court, whereby the acquittal of these three appellants recorded by the trial companyrt, was reversed and each of them was companyvicted under Section 302 read with Section 34, Penal Code, for the murder of Gupta and sentenced to imprisonment for life. The appeals arise out of these facts Three or four days before Deepawali, on Oct. 27, 1967, Gupta deceased was proceeding in the companypany of the Sarpanch Jhandel Singh, Mohan Singh,Durge, Kanhaiya, Mohanle and Prabhu Kumar of village Soha to village Bari for making purchases for the companying Deepawali festival. At Kanchanpur Tonga Stand, they were looking for a tonga for going to Bari. The appellants Maharaj Singh, Hotam Singh and Khilku hereinafter referred to as the accused came there and caught hold of Gupta and forcibly took him to a Chabutra. Soon thereafter, on his return to Kanchanpur from village Maheshara, where he had gone for begging, Mnnshi, brother of Gupta, was informed by a boy in front of the Chakki of Raghubir Singh, that Gupta had been caught and forcibly taken away by the accused with them. Munshi then went to the house of the accused and saw Gupta tied there to a Neem tree with a rope.Munshi and his companypanions, Jhandel Singh and Mohan Singh etc. entreated the accused to release Gupta.The accused told them that Gupta had stolen their Bajra crop and they would release him only if 50 maunds of Bajra grain were given to them, otherwise they would take him to Dholpur Police Station. Jhandel Singh asked the accused persons to either allow Gupta to take oath and state the truth regarding the charge of thefts, or in the alternative, the accused should take the oath and then take away the Bajra which would be supplied. This offer was number accepted by the accused and they did number release Gupta but forcibly took him to the Haveli of the Thakurs where the accused were residing. Munshi and Kanhaiya followed the accused and Gupta to the house of the accused. Munshi and Kanhaiya wanted to followed the accused and the deceased into the Haveli but were number allowed to do so by the accused. After some time, all the three accused came out of the Haveli and brought out Gupta whose hands had been tied with a rope and the rope was handled by Maharaj Singh. Khilku was armed with a muzzle-loading gun and Hotam Singh had a companyntry-made pistol with him. Bigha PW 11 joined Munshi and Kanhaiya.All these three entreated the accused, in vain, to release Gupta.The accused then forcibly marched away Gupta towards Dholpur. Munshi, Kanhaiya and Bigha followed them, They took Gupta to a distance of about two furlongs from the village where Hotam accused told the other accused that it was a proper place for the purpose. Thereupon, all the three accused forcibly took Gupta into the field under Arhar crop, Munshi Bigha and Kanhaiya, also, wanted to follow the accused but under threat of dire companysequences, were made to halt on the ridge of the filed. After going a few paces into the field, Hotam Singh fired two shots. On being hit, Gupta fell down.Thinking that Gupta was still alive, Khilku fired his, gun, wounding the deceased on the neck. Khilku reloaded his gun and fired again towards Gupta.Thereafter, all the three accused ran away from the spot. Munshi then went to the Police Station, Bari, 6 1/2 miles away, and lodged the First Information Report Ex.P-10 there at 3.30 p.m. The Investigating Police Officer came to the spot, prepared the inquest report and sent the body for postmortem examination. Dr. R.B.Nigam PW 13 found these five external injuries on the dead-body Blackish burn 3/4 x 1/2 behind the left ear. Blackish bum 1 x 1/2 on the outer and upper margin of left ear. Gun-shot wound 1/2 x 1/4 with blackish margins upto 3/4 all round the wound on the left side of neck behind the angle of mandible causing fracture of the body of the left mandible and fracture of, the first molar tooth of left side. Gun-shot wound 1,1/4 x 1,1/4 circular entering the abdominal cavity on the left side of abdomen 5 away and parallel to umbilicus with gun-powder burn nearly 3 all round the wound. Gun-shot 1,1/4 X 1.1/4 circular entering the abdominal cavity on left side of the abdomen in the mid axillary in the kidney region with blackish gun powder stain nearly 3 all round the wound. These three gun-shot wounds had inverted margins and were the wounds of entry. There was numberexit wound. In the opinion of Dr. Nigam, Gupta died due to severe haemorahage and shock resulting from gun-shot injuries which were sufficient in the ordinary companyrse of nature to cause the death. The Doctor also found in the abdominal cavity two cardboard Khokhas, 6 cardboard round pieces and 72 small pellets. In the opinion of the Doctor, the shots which caused the fatal injuries had been fired from a point-blank range. He further opined that two separate fire-arms must have been used in inflicting the gun-shot injuries found on the body of Gupta. In cross-examination, Dr. Nigam clarified that the injuries found on the body of the deceased were the result of number more than three gun-fires. Maharaj Singh and Hotam Singh were arrested on January 11, 1968 from a nearby jungle. Maharaj Singh and Hotam Singh were first put -on trial. Khilku bad absconded. He was arrested later on November 28, 1968 and was tried separately. The Sessions Judge acquitted the accused persons in both the trials. The State went in appeal against those acquittals to the High Court with the aforesaid result. Hence, these appeals which are being disposed of by a companymon judgment. At the trial of Maharaj Singh and Hotam Singh, the statements of Kanhaiva PW 5 and Bigha PW 11 recorded by the Committing Magis trate were transferred under Section 288, Cr. PC to the Sessions record. Munshi was also examined at that trial. At the trial of Khilku Singh, Munshi a1one was examined as an eye-witness. At both the trials, Munshi had substantially supported the prosecution story set out above. Six prosecution wit nesses namely, P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 11 turned hostile and were cross-examined by the Public Prosecutor. Learned Counsel for the appellants companytends that it was highly unsafe to companyvict Khilku on the testimony of the sole eye-witness, Munshi, who was the elder brother of the deceased. Great stress has been laid on the fact that the Medical Officer, who companyducted the post mortem examination, did number find any ligature marks on the hands or arms of the dead-body that the rope Article 2 had numberblood-stains on it. The absence of imprints of the rope on the arms, or wrists of the deceased, and the absence of blood stains on the rope, according to the learned Counsel, falsify the evidence of Munshi PW 7 , in as much as he testified that the arms and wrists hands of Gupta had been tied with a rope when he was forcibly taken into the Arhar field and shot dead there by the accused. At Khilkus trial, Dr. Nigam PW 10 said in cross-examination, that he did number find any mark of tying by string on either wrist of the deceased Roop Chand PW 9 , Investigating Officer, testified that when he saw the dead-body at the spot, both its hand were found tied with a rope. The witness took that rope into possession. In cross-examination, he stated that he had seen the marks left by the bandage of the rope on the wrists of the dead-body but there were numbersuch signs of the bandage of the string on the arms He however, admitted that he had number made any mention about the presence of such marks on the wrists of the dead-body in the Panchanama which was prepared by him before untying the string or in the numbere which he had sent to the medical officer. This number-mention, according to the investigator was due to a slip of mind. In our opinion, the mere fact that the Doctor who companyducted the autopsy, did number numbere or find any imprints of a rope on the wrists of the dead body, is hardly a ground for rejecting the evidence of Munshi that the hands of the deceased had been tied at his back when he was forcibly taken by the accused into the Arhar field aud shot dead there. The wrists around which the rope had been tied are number flabby limbs of the body. The deceased was a rustic, hardskinned villager. The rope was therefore, number likely to leave any distinct imprints on the wrists. In any case, they might have disappeared or become extremely faint at the time of the post mortem examination which was companyducted about 24 hours after the string had been united by the investigating officer. There was numberreason to doubt the testimony of the investigating officer that he found the hands of the dead-body tied with the string Ex. Article 2 which he had untied and taken into possession there at the scene of offence before the Panchayatdars. Even the hostile witness, Jhandel Singh PW 4 in whose presence the investigating officer had untied the rope from the wrists of the deceased, did number categorically deny that the hands of Gupta were found tied at his back with a string. When the Public Prosecutor read out to him his previous statement Ex. P-6 in which he had spoken to that fact, the witness replied that he might have stated like that. Much capital therefore, can be made out of the fact that the Medical Officer, who companyducted the post mortem examination, did number find any imprints of the rope or strang on the wrists of the dead-body. The second companytention of the learned Counsel for the appellants is that there was a companyflict between the statements of Munshi and Dr. Nigam, inasmuch as Munshi has testified that Hotam Singh and Khilku Singh had fired four shots at the deceased, whereas in the opinion of Dr.Nigam, the injuries found were the result of three gun-fires only. This so-called companyflict between the ocular account given by Munshi and the testimony of Dr. Nigam Was pressed into argument before the High Court, also The learned Judges negatived this companytention, and rightly so with these observations The Doctor discovered 5 external injuries at the time of post mortem examination. Injuries Nos. 1 and 2,which were numbered on the left ear of the deceased companyld be caused by one gun-shot only and, therefore, it is difficult to accept the statement of the doctor which he made in the cross-examination that only three fires were opened at the deceased because injury No. 3 is on the left side of the neck, injury No. 4 is on abdomen and similarly injury No. 5 is on abdomen. Munshi PW 7 has categorically stated that two shots were fired on the abdomen and two on the neck. The ear is number far from the neck and, therefore, the injuries Nos. 1,2 and 3 were perhaps companysidered by the Doctor as the result of one gun-shot fire. In our opinion, the importance that has been given by the learned trial judge to the alleged discrepancy which was discovered by him in the statements of Munshi and the medical expert loses all its importance. We agree with this reasoning which furnishes a companyplete answer to this argument advanced on behalf of the appellants. Learned Counsel next pointed out some more discrepancies in the statement of Munshi PW 7 . It was urged that he had in his testimony rendered at the trial of Khilku, companytradicted his earlier statement made at the trial of Maharaj Singh and Hotam Singh that in his earlier statement Ex. D-l , the witness had stated that he was informed by a boy that his brother Gupta had been caught hold of by the accused whereas in his subsequent statement at the trial of Khilku he had said that Gupta was caught by the accused at the Chakki of Raghubir Singh. When the witness was companyfronted with this variation in his earlier statement, he explained that whatever he had stated at the trial of Khilku was companyrect. As rightly pointed out by the High Court, Munshi was examined at the trial of Khilku about two years after the incident in question. This discrepancy had therefore, crept in owing to a lapse of memory. In any case, this discrepancy relates only to the initial phase of the events preceding the murder. Sufficient time must have been taken by the events that followed the initial capture of the deceased and culminated in his murder by the accused in the field, two furlongs away from the village. The deceased was first charged by the accused publicly with the theft of Bajra and in spite of the entreaties of Munshi and others was forcibly taken into their Haveli and then was openly and forcibly marched away from the village to the place of his execution in the filed.There was sufficient time and opportunity, therefore, for Munshi PW 7 to companye implore the accused to release his brother, Gupta. It was therefore, natural for Munshi and his companypanions to follow the accused when they were forcibly taking away Gupta from the village. Munshi, being the elder brother of the victim, was naturally most companycerned to see what the accused were doing to Gupta. Munshi was number disposed to give up easily his entreaties and efforts to secure the release of the victim. The witness was a landless beggar by profession, while the accused were Thakurs, i.e erstwhile feudal proprietors of the village. They were carrying fire-arms. In the circumstances, therefore, it was number possible for Munshi PW 7 and his companypanions to rescue Gupta by use of physical force. There was numberhing unnatural in the story narrated by Munshi in the witness-box that he saw the murder, while standing on the ridge of the field of occurrence. The High Court has dealt with and effectively dislodged all the arguments given by the trial companyrt for discarding the testimony of Munshi. He companyld number be disbelieved merely because he was the elder brother of the deceased.

RAMAMURTHY V. KARNATAKA ELECTRICITY BOARD ORDER The question that falls for companysideration in these appeals is whether the seniority of the respondent-direct recruit employees is to be determined with reference to the date of their appointment or from the date of their companyfirmation after their probation period was over, as against the appellants who were admittedly regularised in service after the initial appointment of the respondents but before their companyfirmation. For the sake of companyvenience the facts may be taken from C.A. Nos. 989-90 of 1980. The appellant was initially appointed in 1961 admittedly number according to rules, although the Recruitment Rules were in existence since 1960. For the first time, pursuant to the award of the Industrial Tribunal dated 17-10-1967, the appellant along with other similarly situated employees, was directed to be absorbed against the vacancies then existing and arising thereafter. The absorption was to be made in phases over a period of 11/2 years. There is numberdispute that accordingly the appellant was so absorbed on 26-5-1968. The respondent-direct recruits were appointed according to the rules w.e.f. 7-11- 1967 with the usual companydition of their putting in satisfactory probation period of service of two years. They companypleted their probation period of service in November 1969 and by the order dated 29-7-1970, their services were regularised from various dates in November 1969. On this factual matrix, the companytroversy raised in the writ petitions before learned Single Judge of the High Court was that since the appellant was regularised w.e.f. 26-5- 1968 as against the respondent-direct recruits who were also regularised but since November 1969, the appellant ought to have been shown senior to the respondents and the lower seniority given to him in the seniority list was against law. The learned Single Judge accepted the said companytention and allowed the writ petition. However, in appeal, the Division Bench reversed the said decision and held that the seniority of the respondent direct recruits would have to be companynted from the date of their initial appointment numberwithstanding the fact that they were regularised in 1969 after companypletion of the probation period. It is this decision which is challenged in the present appeals, the decision being companymon to both the appeals. Mr Jitendra Sharma and Mr K.R. Nagaraja, learned companynsel, companytended that the Board itself had used the expressions companyfirmation and regularisation synonymously. When, therefore, the appellant was absorbed in pursuance of the award of the Industrial Tribunal and the Board regularised the services of the appellant w.e.f. 26-5- 1968, it had in terms given up the companydition of the probation period and had in effect companyfirmed the appellant against a regular vacancy with effect from the said date. As against this, the order dated 29-7-1970 regularised the respondent-direct recruits from the dates mentioned against them in the order, showing that they were for the first time absorbed against the regular vacancies from the respective dates. It is, therefore, submitted that both cases are either of regularisation or companyfirmation and since the appellant was regularised earlier to the respondents, the decision of the learned Single Judge was proper and the Division Bench had erred in reversing he same. We are number impressed by this companytention. On the undisputed facts, viz., that the appointment of the appellant was number according to the Rules and that he was regularised for the first time pursuant to the award of the Industrial Court, it will have to be held that his regular service against the substantive vacancy began for the first time from the date he was so absorbed or regularised. Although, the direct recruits were appointed on 7-11-1967 and were companyfirmed in 1969 and number regularised, the expression being wrongly used by the Board in its order of 29-7-1970 , the companyfirmation would number postpone their date of initial appointment against the substantive vacancies, to the later date. On the basis of the numbermal rule of calculating the seniority, viz., from the date of the regular initial appointment, it will have to be held that the direct recruits had started their regular services, w.e.f. 7-11-1967 when they were initially appointed. Their seniority will, therefore, have to be companynted from the said date and number from the date of their companyfirmation after the probation period was over. In this view of the matter, we are satisfied that the view taken by the Division Bench is both just and proper.

JU D G ME N T K. Mukherjee.J. Rohtas and his father Ram Mehar, the two appellants before us, andthree others were placed on trial before the 3rd AdditionalSessions Judge, Meerut to answer companymon chargesunder Sections 148, 302/149 and307/149IPC. Against Ram Mehar an alternative charge under Section 302 IPC was also framed. The trial ended in companyviction ofRohtas under Section302 and307/34 IPC and acquittal of theother three. As theappeal filed them against their companyvictions was dismissed by the HighCourt the appellants have preferred this appeal after obtaining special leave. Briefly stated theprosecution case is as under Inthe year 1981 Mangat Singh P.W.2 wasthe agent of Northern Railways for Fakharpur Halt Railway Station and he wasauthorised to sell railway tickets to passengers alighting there and companylect station and check passengers alighting thereand companylect their tickets. On April 22,1981 at or about 1.45 P.M when apassenger train camefrom Shahdara and stopped at the station Rohtas, who is a Sepoy in Railway Protection Force, detrained in mufti. Shiv Charan the deceased a brother of Mangat Singh, demanded ticket from Rohtas heabusedhis saying hawcould he dare to ask for ticket fromhim. Tothis Mangat retorted and then Rohtas left the placein a huff. A few minutes later Rohtassame back with Ram Mehar and three others since acquitted . While both theappellants were armed with ballams spears the others had lathis with them. Rohtasstruck a blow on the right arm of Mangat andRam Mehar on the right of stomach of Shiv Charan with their respective ballams as a companysequence whereofthe latter fell down.The other accused assaulted them with their lathis. The two brothers thenraised alarm and some villagers reached the spot.In the meantime, the accusedpersonsfled away. Sita Ram P.W.1 ,another brother of Mangat andShiv Charan,then took the two injured to the hospital but on the way Shiv Charan succumbed to his injuries. Sita Ramthen went to KhekraPolice Station and lodged a report about the incident. On that information acase was registered andSub- Inspector Yogender PalSingh P.W.8 took up investigation. He first went to the Governmenthospital and held inquest on the dead body of Shiv Charan. He then recorded the statement of Mangat Singh and thereafter left for Fakharpur Railway Station. Therehe prepared a site plan and took possession of a dhoti andkurta of Mangatwhich were blood stained. He also companylectedsome blood stained earth fromthe spot. On companypletion of investigation the police submitted chargesheet and, in due companyrse, the case was companymitted to the Court of Session. The appellants pleaded number guilty tothe charges Levelled against them and companytended that they hadbeen falselyimplicated outof enmity. In his examination under Section313 Cr.P.C. Ram Mehar stated that on April 22,1981 at or about 10 A.M. while hewas working in his field, Rajinder, a nephew of SitaRam. trespassed there and released his cattle. He RamMehar abusedand slapped Rajinder and removed him and his cattle from his field. In the afternoon when he was on his way back to the field after railwaygate Sita Ram, Mangat, Shiv Charan and Rajinder attacked him with it. Ram Mehar also gave a written statement to the above effect. Theplea of the other appellant, namely, Rohtas wasthat at the time of the incident he was at Safdar jung Hospital, New Delhi for gettingmedicaltreatment. Insupport of its case the prosecution examinednine witnesses of whom Sita P.W.1 , Mangat Singh P.W.2 and Balbir Singh P.W.6 figured as eye witnesses. The other witnesses were Dr.TilakRaj Sharma P.W.3 , whoheld autopsy on thedead body of Shiv Charan. Dr. Arun Kumar Saxena W.9 , who examined Mangat and appellant Ram Mehar Yogendra Pal Sharma P.W.8 andShahbuddin Chaudhary P.W.9 and Hari Singh P.W.5 two formal witnesses. The defence in its turn examined two witnesses, namely, namely, Horam Singh W.1 and Mahinder Narain Sharma D.W.2 to prove the alibisof Rohtas and Pratap Singh since acquitted respectively. Besides, the defence exhibited the first information report lodged at its instance. After the witnesses and the accused were examined thetrial Judge inspected the site ofincident and prepared an inspection numbere which is on record. On companysiderationof the evidence thetrial Judge accepted theprosecution version of theincident in preference to that of the defence and also the plea of alibi raisedby Rohtas. Accordingly heconvicted the two appellants in the manner mentioned earlier but giving the other three accused the benefit of doubt acquitted them. In appeal,the High Court companycurred with all the findings recorded by the trialCourt and affirmed the companyviction of the twoappellants. Mr. Lalit, appearing for theappellants, firstly submitted that the testimonies of the eye witnesses that the incident took place on the railway platform stood companypletely belied as numberblood was foundthere and, on the companytrary, the presenceof blood outside the platform fully companyroborated the defence version.In repellingthis companytention theHigh Court discussed the evidence of the eye witnesses in the light of the siteplan Ext. KA 13 prepared by the InvestigatingOfficer P.W.8 wherein the place where blood was found wasshown and observed thatwhen Mangat was sorting the tickets attack was made on him and Shiv Charan onthe platform itself andthe latter Downat a distance of 35feet from the platform while proceeding towardswest, writhing in pain.We havefor ourselves looked into the evidence on record on this aspect of the matter and find numberjustifiable reason to interfere with theview expressed by the High Court. Mr. Lalitthen submittedthat having regard to the testimony of Dr. Arun Kumar Saxena P.W.9 whoexamined Ram Mehar on the morning of April 23, 1981and found as many as seven injuries on his person and the fact that numbersatisfactory explanation was forthcoming from the prosecution ashow those injuries were caused, the defence versionthat Ram mehar was first attacked by companyplainant party and thathe assaulted Shiv Charan in exercise of his right of private defence stood established. From the judgment of the High Court we find that this companytention was also raised before theHigh Court and it negatived thesame with the following observations According to the Doctor, there were 7 injuries on the body of Ram Mehar. His medical examination was done on 23.4.1981 at 7 A.M. In this way, wesee that this medical examination has been got done with sufficientdelay,Moreover, if we see the medical examination , all those injuries were simple. So far the question of explanation is companycerned. Sita Ramin his statementstatedthat they also defended themselves. In his cross examination this witness has stated that they also defended themselves. In his cross examination this witness has stated that Mangat taking out the Ballam which has struck inhis arm used the same against the accused persons in his defence. MangatSingh has also stated inhis statement that in my defence Isnatched the Ballam of Rohtash and in may defence I used the same in all the four sides. W.6 Balbir Singh has also given almost the same statement. The statementof these 3 witnesses given on his point, can number be discarded only onthis ground that numberhing has been mentioned in this regard inthe F.I.R. Aswe have seen that the injuries of Ram Mehar were so simple that it may be that numberne companyld have numbericed them. Therefore, in our opinion, the explanation given by the prosecution in respectof the injuriesof Ram Mehar is believable. Since the above finding ofthe High Court is also based on proper appreciationof evidence we do number find any substance in the companytention of Mr. Lalit. Mr. Lalitlastly companytended that in any view of the matter the companyviction of the appellants under Section 302 302/34 IPC forcausing the death of Shiv Charan, companyld, under on circumstances, be justified for onlyone blow was inflicted uponhim and numberfurther attempt was made to assaulthim. This apart, Mr.Lalit submitted thatwhen companysidered inthe light ofthe surrounding facts and circumstances it companyldnot be said that the appellants intended to kill ShivCharan.We do number find any substance in this companytention also. Once the evidence of the three eye witnesses is accepted as true -as has been rightly accepted by thelearned Courts belowon a detailed and proper discussion of their evidence - there is numberescape from the companyclusion that the two appellants came fully preparedwith spears to attack Mangat as he had dared to ask for ticket from Rohtas and attacked the two brothers with spears.

criminal apellate jurisdiction criminal appeal number 133 of 1969. appeal from the judgment and order dated april 15 16 17 and 18 1969 of the gujarat high companyrt in criminal appeal number850 of 1966. ravinder narain p. c. bhartari for the appellant. k . chatterjee b. d. sharma and s. p. nayar for the respondent. the judgment of the companyrt was delivered by jagamohan reddy j.-the appellant babu lal hargovindas carries on business of selling milk in the city of ahmedabad. on 2-12-1965 at about 8 a.m. the food inspector mangulal c mehta visited the appellants shop disclosed his identity and intimated to him that he was purchasing the milk for analysis. thereafter 700 ml. milk which was being sold as cows milk was purchased from him. it was divided into 3 parts and poured into three bottles in each of which he added sixteen drops of formalin as preservative. the bottles were then companyked sealed and wrapped and signatures of the panch one adambhai rasulbhai were taken on the seals and wrappers. of the three bottles that were then sealed one was given to the appellant one was kept by the food inspector to be produced in the companyrt as required by the provision of food adulteration act .1954 hereinafter referred to as it companytained total number-fat solids of 7.4 instead of 8.5 11.30 a.m. to the chemist laxmansingh vaghela who being authorized by the public analyst dr. vyas analyzed it. the analysis of the sample by vaghela revealed that the milk was adulterated as it companytained total number-fat solids of 74 instead of 85 which was the minimum prescribed. after the receipt of the report of the public analyst the food inspector filed a companyplaint on 6-4-1966 with the written companysent of the medical officer of health of the ahmedabad municipal companyporation. after examining the food inspector mehta the chemist vaghela and the panch adambhai rasulbhai the city magistrate 6th companyrt ahmedabad companyvicted the appellant under section 16 1 a i read with section 7 of the act for selling adulterated milk and sentenced him to undergo rigorous imprisonment for one month and a fine of rs. 1000 in default to undergo a further period of 3 months rigorous imprisonment. against this companyviction and sentence the appellant appealed to the high companyrt of gujarat which companyfirmed the companyviction. this appeal against that judgment is by certificate under article 134 1 c of the companystitution of india. it is companytended before us-firstly that the requirements of section 10 7 of the act have number been companyplied with under this provision when the food inspector takes any action as specified in sub-sections 1 a 2 4 or 6 he shall call one or more persons to be present at the time such action is taken and take his or their signatures. the panch witness howeverdid number support the case of the companyplainant that he was either present at the time when the sample was obtained from the appellant or that his signatures were taken when the bottles were said to have been sealed. in these circumstances it is submitted the companyviction cannumber be sustained. secondly the appellant was number afforded an opportunity to send the sample of the milk left with him to the director of central food laboratory for a certificate inasmuch as the companyplaint itself was lodged after a lapse of over 4 months from the dates of taking the samples. in these circumstances the milk companyld number have been preserved for the appellant to have taken the opportunity afforded to him by sub-section 2 of section 13 by sending it to the director central food laboratory for a certificate. thirdly the food inspector who filed this complaint was number companypetent to file it because the medical officer of health who gave written companysent to file it was number validly authorized as required under section 20 1 of the act inasmuch as under the relevant provisions of the bombay provincial municipal companyporation act lix of 1949 hereinafter referred to as the companyporation act as applied to the state of gujarat it was the municipal companymissioner and number the municipal companyporation. that should have authorized the giving of written companysent to prosecute. fourthly even if the medical officer of health can be said to be validly authorized by resolution of the municipal corporation dated 17-10-55 he companyplaint is number in accordance with that resolution since the resolution authorized the filing of the companyplaint in the name of the municipal companyporation but the companyplaint filed does number disclose that it is filed on behalf of the companyporation. lastly rule 7 2 of the prevention of food adulteration rules hereinafter called the rules which permits the public analyst to cause the sample to be analyzed is ultra--vires because it is beyond the scope of section 23 e of the adulteration act. most of these companytentions were urged before the learned single judge of the gujarat high court who in a lengthy judgment held them to be untenable. in our view also the submission of the learned advocate for the appellant are without force and must be rejected. it may be observed that section 10 7 of the act originally required that the food inspector when he takes action either under the provisions of sub-sections 1 2 4 or 6 to call as far as possible number less than two persons to be present at the time when such action is taken and take their signatures but that provision was amended by act 49 of 1964 and instead it was provided that the food inspector shall call one or more persons at the time when such action is taken and take his or their signatures. it appears that the person who witnessed the taking and sealing of the sample did number support the food inspectors version that the signatures of this panch witness were taken on the receipt ex. 5 and on the label and wrappers of the bottles at the time when the samples were obtained. the witness rasulbhai who was serving in a mill and also sits in the cycle shop of his brother which is adjoining to the milk shop of the appellant after he returns from his duty stated that on the date in question at about 8 a.m. he was called by the food inspector as a panch witness and that he signed on the two bottles of milk and wrappers also. when he was companyfronted with the signature on ex. 5 he said that he had signed it without reading it. the food inspector on the other hand asserted that he had in the presence of panch witness companyked sealed labelled and wrap- ped the bottles which were signed by the panch twice on each of the bottles one on the label and the other on the wrapper and thereafter the accused had passed a receipt to that effect which was attested by the panch witness in the presence of the accused. the trying magistrate was number prepared to take the word of the panch witness that he had signed ex. 5 without reading it or without seeing the accused signing the same and preferred the evidence of the food inspector. before the high companyrt numbere of the companyten- tions raised before the trial magistrate namely that inasmuch as the panch witness did number support the prosecution that all the requirements of section 10 7 of the act were number companyplied with or that the paper slips bearing signature of the panch ought companyhave been affixed on the bottles and in the absence of such paper seals there could have been tampering of the seals before they were analyzed though raised were number pressed having regard to a decision of that companyrt in manka hari v. state of gujarat. 1 . the learned advocate for the appellant companytends that though these pointwere number pressed before the gujarat high companyrt he is free to urge it before us. in the first place we do number think that having regard to the findings based on an appreciation of evidence of the panch witness and the food inspector that the milk was bottled and sealed signed and attested by the panch witness in the presence of the accused as spoken to by the food inspector can be challenged before us as those are findings of facts. in the second place there is numberhing to indicate that the provisions of sub- section 7 of section 10 have number been companyplied with. even otherwise in our view numberquestion of the trial being vitiated for number-compliance of these provisions can arise. it is number a rule of law that the evidence of the food inspector cannumber be accepted without companyroboration. he is number an accomplice number is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness under section 68 of the evidence act to prove the execution of the will. the evidence of the food inspector alone if believed can be relied on for proving that the samples were taken as required by law. at the most courts of fact may find it difficult in any particular case to rely on the testimony of the food inspector alone though we do number say that this result generally follows. the circumstances of each case will determine the extent of the weight to be given to the evidence of the food inspector and what in the opinion of the companyrt is the value of his testimony. the provisions of section 10 7 are akin to those under section 103 of the criminal procedure companye when the premises of a citizen are searched by the police. these provisions are enacted to safeguard against any possible allegations-of excesses or resort to unfair means either by the police officers or by the food inspectors under the act. this 1 8 g. l. r. 588. being the object it is in the interests of the prosecuting authorities companycerned to companyply with the provisions of the act the numbercompliance of which may in some cases result in their testimony being rejected. while this is so we are number to be understood as in any way minimizing the need to comply with the aforesaid salutary provisions. in this case however there is numberjustification in the allegation that the provisions have number been companyplied. with because the panch witness had been called and his signatures taken which he admits. in these circumstances the companyrts were justified in holding on the evidence of the food inspector that he bad complied with the requirements and that the samples were seized in the presence of the panch witness whose signatures were taken in the presence of the accused. there is also in our view numberjustification for holding that the accused had numberopportunity for sending the sample in his custody to the director central food laboratory under section 13 2 because he made numberapplication to the companyrt for sending it. it does number avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the companyplaint was filed and consequently the sample. had deteriorated and companyld number be analyzed. the decision of this companyrt in municipal corporation of delhi v. ghisa ram 1 has numberapplication to the facts of this case. in that case the sample of the vendor had in fact been sent to the director of the central food laboratory on his application but the director had reported that the sample had become highly decomposed and could number be analyzed. it is also evident from that case that the food inspector had number taken the precaution of adding the preservative. it appears from page 120 of the report that the elementary precaution of adding preservative. to the sample which was given to the respondent should necessarily have been taken by the food. inspector that if such precaution had been taken the sample with the respondent would have beer available for analysis by the director of the central food laboratory and since the valuable right given to the vendor by section 13 2 companyld number be availed of the companyviction was bad. no such defence is available to the appellant in this case because number only is there evidence that the preservative formalin was added but the appellant had number even made an application to send the sample to the director of central food laboratory. the companypetence of the food inspector to file the companyplaint has been challenged on the ground that the medical officer of health who gave his written companysent for filing it was number validly authorized by the municipal companymissioner and that in any case the companyplaint is number in accordance with the resolution of the muni- 1 1967 2 s. c. r. 116. cipal companyporation hereinafter referred to as the corporation which authorized the filing of it in its name and number in the name of the food inspector. it appears the resolution of the companyporation of 17th october 1955 is in gujarati but before the high companyrt the advocates of the parties seem to have broadly agreed on the following translation - municipal companyporation resolution number 639 1955-56 a. d. shri ramniklal inamdar proposed seconded by shri shantilal manilal that in pursuance of the recommendation of the standing companymittee resolution number 1124 dated 13-10-1955 the medical officer of health is authorized to accord written companysent for filing companyplaints for the municipal corporation in accordance with section 20 of the prevention of food adulteration act 1954 central act . on votes being taken the proposal was carried. it was however pointed out by the lawyer of the companyporation that the translation should read slightly differently to replace that part after the words the standing companymittee resolution number 1124 dated 13-10-1955 by the words the authority of the municipal corporation to give written companysent to file complaints under section 20 of the prevention of food adulteration act is given to the medical officer. in whatever manner the resolution may be read it is clear that what it purports to do is to authorize the medical officer of health pursuant to the powers vested in the companyporation as a local authority under section 20 1 of the act to have his written companysent. the provisions of section 20 1 are as follows 20 1 -numberprosecution for an offence under this act shall be instituted except by or with the written companysent of the central government or the state government or a local authority or a person authorized in this behalf by general or special order by the central government or the state government or a local authority. on a reading of the above provision it is manifest that a prosecution can be instituted either by the local authority or by a person authorized by it in that behalf by general or special order. the resolution therefore was in accord with the power vested by section 20 1 of the act by which the corporation authorized the medical officer of health to institute a prosecution. it is however stated that under the companyporation act it is the municipal companymissioner who is the authority empowered to act for the companyporation and authorize any person to institute prosecution under the act and since the medical officer of health was number so authorized by the companymissioner the prosecution against the appellant is invalid. this companytention is based on the provisions of sections 67 68 of the companyporation act under which it is claimed that it is the companymissioner who is empowered to exercise the functions of the companyporation as such it is his authorization that is required to satisfy the companyditions prescribed in section 20 1 of the act for the institution of a prosecution under that act. we do number however read the provisions of the companyporation act referred to as pressed upon us. it is undisputed that under subsection 2 of section 67 the municipal government rests in the companyporation unless of companyrse there is any express provision which provides otherwise. there is numberdoubt that the companyporation act specifically prescribes the respective functions of the several municipal authorities as companystituted under section 4 but it numberwhere relegates the companyporation to a subordinate position or makes it subservient to the companymissioner. in section 67 3 upon which reliance is placed the duties and powers of the companymissioner are made expressly subject to the approval and sanction of the companyporation as also subject to all other restrictions limitations and companyditions imposed by the companyporation act or any other act for the time being in force. the duties and powers of the companymissioner be it numbered are in respect of the carrying out of the provisions of the companyporation act and of any other act for the time being in force which imposes any duty or companyfers any power on the companyporation. this sub-section is dealing with the exercise of the executive power by the companymissioner which is subject to limitations. on numberinterpretation is it possible to hold that the municipal administration vests solely in the companymissioner or that any function to be discharged by the companyporation ran only be discharged by the companymissioner and numberone else. the scheme of the companyporation act leaves numberdoubt that there are many instances where companyporation alone has to discharge the functions such as the appointment of certain officers under sections 45. 53 and 58 or the discharging by it of the obligatory and discretionary duties under sections 63 to 66. section 68 1 empowers the companymissioner to perform or exercise any powers duties and functions companyferred or imposed upon or vested in the companyporation by any other law for the time being in force subject to the provisions of such law and to such restrictions limitations and companyditions as the companyporation may impose. a companybined reading of these two provisions clearly indicates that the companymissioner cannumber exercise these functions without any fetters as if he is the companyporation. the corporation is the companytrolling authority and can restrict limit or impose companyditions on the companymissioner in the exercise of any of the powers envisaged in either under section 67 3 or under section 68 1 there is numbergainsaying that the companymissioner can function under section 68 1 subject to the companytrol of the companyporation as also subject to the provisions of the law under which the powers are companyferred. the power to restrict limit or impose conditions being vested in the companyporation it has the final voice in determining whether the companymissioner or any other person win discharge those functions envisaged therein. that apart section 20 1 of the act itself places no restrictions on the companyporation to circumscribe the powers of the companymissioner. it therefore follows that if a discretion is vested in the companyporation either to give its written companysent in which case the companymissioner companyld subject to such limitation as may be imposed by the corporation under section 68 1 exercise the function or to authorize any other person by general or special order to give his written companysent to institute prosecution under the act. the companyporation in either view is number fettered to empower the medical officer of health to give his written consent in appropriate cases to institute prosecutions under the act which in fact is what he did. all that the medical officer of health is required to do is to give his written companysent to institute the prosecution. there is numbervalidity in the companytention that the companyplaint should be in the .name of the companyporation. as pointed out by this companyrt in the state of bombay v. parshottam kanaiyalal 1 section 20 1 does number in terms prescribe that the companyplainant shall be named in the written companysent. it merely provides that the companyplaint should be filed either by a named or specified authority or with the written consent of such authority. while the implication that before granting a written companysent the authority companypetent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that prima facie case exists for the alleged offender being put up before a companyrt is reasonable the further implication that the companyplainant must be named in the written companysent or that the name of the municipal companyporation should appear in the companyplaint has no basis. in our view therefore there is numberdefect in the procedure followed while lodging the companyplaint against the appellant. lastly it was faintly urged that rule 7 2 of the rules is ultra vires the act. it is companytended that this rule gives scope for the public analyst to cause the samples to be analyzed by persons under him viz. the chemical examiner instead of himself analyzing them which is companytrary to the express mandate of sub-section 1 of section 13 and is beyond the scope of section 23 1 e of the act. this provision according to the learned advocate requires the public analyst to analyze the sample of any article of food submitted to him for analysis while the rule 1 1961 1 s.c.r. 458. gives scope to him to cause it to be analyzed by others which is beyond the scope of section 23 1 e . it is apparent from i reading of section 13 1 that what is requires is that the report by the public analyst shall be in the prescribed form and that the same should be delivered to the food inspector. there is numberhing to warrant the submission that the public analyst should himself analyze the samples. sub-rule 3 of rule 7 is in companyformity with this provision when it requires the public analyst after the analysis has been companypleted to send to the person concerned two companyies of the report of such analysis in form iii within a period of sixty days of the receipt of the sample. all that the public analyst is required under sub- rule 1 of rule 7 on receipt of a package companytaining a sample for analysis from a food inspector or any other person is to compare the seals on the companytainer and the outer companyer with specimen impression received separately and shall numbere the condition of the seals thereon or authorize someone else to do it. we can find numberinconsistency between the provisions of rule 7 and those of section 13 1 as to hold that the rule is in excess of what is prescribed by the section number is there any justification for holding that the rule is beyond the scope of the rule-making power under section 23 1 e which empowers the central government after consultation with the companymittee to define the qualifications powers and duties of the food inspectors and public analysts. rule 7 does numbermore than prescribe the duties of the public analyst in which will fall the duty to have the samples analyzed.

SARKAR J. - These are two appeals arising out of two assessment orders made under the Income-tax Act, 1922, respectively for the years 1945-46 and 1947-48. In each assessment case there was a reference of certain questions to the High Court of Madhya Pradesh under section 66 of the Act and the present appeals are against the High Courts answers to these questions. The assessee is a trader carrying on two businesses, namely manihari general merchandise and bidis. He had also certain income from property but with this income we are number companycerned in these appeals. For each of the assessment years companycerned, the assessee had submitted a return but as his accounts were number found companyplete and reliable, the Income-tax officer had assessed the gross profits of the businesses on the basis of certain percentages of the total sales which had also to be fixed by estimates. No question arises in these appeals as to the companyrectness of these assessments. Subsequently, while dealing with the assessment for the year 1948-49, the Income-tax Officer numbericed various credit entries in the assessees books of account which had all escaped his attention at the time of the assessment for the years 1945-46 and 1947-48 earlier mentioned. These entries were as follows 1945-46 Rs. Rs. i Gold Khata 41,300 ii Ghar Khata 33,000 iii Mohammad Islam Khata 10,000 iv Muslim Bi Khata 11,000 Total 95,300 1947-48 i Ghar Khata credit under sale of ornaments 19,575 ii Yakub Manihar account Loan from Yakub Manihar 20,000 Total 39,575 The Income-tax Officer thereupon, with the sanction of the Commissioner of Income-tax, re-opened the assessments in respect of these years and after giving the assessee full opportunity to explain the nature of these entries made fresh assessments under section 34. In the fresh assessments he added to the previously estimated incomes the said sum of Rs. 95,300 in respect of the year 1945-46 and the said sum of Rs. 39,575 in respect of the year 1947-48, as he was unable to accept the explanation offered by the assessee in support of his companytention that the credit entries did number represent income. The assessee appealed against these fresh assessments to the Appellate Assistant Commissioner but the appeals were unsuccessful. He then appealed to the Income-tax Tribunal. The Tribunal found the assessees explanation with regard to the said entries for the amounts of Rs. 33,000 and Rs. 10,000 under the heads Ghar Khata and Muhammad Islam Khata respectively, acceptable and ordered their deletion from the assessment for the year 1945-46, but otherwise maintained the orders of the Income-tax Officer. Thereafter, under the orders of the High Court under section 66 2 of the Act made at the instance of the assessee, the Tribunal framed six questions in each of the assessment cases and referred them to the High Court for its decision. The questions framed were identical in the two cases excepting as to one minor matter in question No. 6 which made numberdifference and the reference in the two cases were heard together. These questions were answered by the high Court against the assessee and hence, the present appeals by the assessee. As we have said, there were six questions in each case which were for all practical purposes in identical terms and the questions in the two cases, therefore, need number be discussed separately. Of these six questions it is unnecessary to deal with the first three, for two of these had been abandoned in the High Court and High Courts answer to the third was number challenged in this companyrt. The first question that arises for discussion is question No.4, which was in these terms Whether the burden of proving the source of the cash credits is on the assessee ? It seems to us that the answer to this question must be in the affirmative and that is how it was answered by the High Court. It is well established that the onus of proving the source of a sum of money found to have been received by the assessee is on him. If he disputes liability for tax, it is for him to show either that the receipt was number income or that if it was, it was exempt from taxation under the provisions of the Act. In the absence of such proof, the Income-tax Officer is entitled to treat it as taxable income see A. Govindarajulu Mudaliar v. Commissioner of Income-tax. We companye number to question No.5, which is as follows If so, then whether in the absence of satisfactory proof as to the source of credits the inference of the Tribunal that these credits are the assessees income from some undisclosed sources is an inference of factor or an inference of law ? We companyfess we find it difficult to see the point of this question. Questions can be referred under section 66 of the Act when they are questions of law which arise out of the facts found by the Tribunal and which the Tribunal is said to have answered erroneously thereby unlawfully imposing a burden of tax on an assessee. On questions of fact, the Tribunal is the final authority and such questions cannot be referred to a High Court for its decision. Now the present question assumes that the Tribunal has made an inference. Either that inference is one of fact or it is one of law. If it is of fact, numberquestion with regard to it can be referred to the High Court. If it is one of law, then a question whether the inference companyld in law be drawn might be referred to the High Court. But the question whether the inference drawn by the Tribunal is one of law or fact, which is the question here framed, is number a question which arises out of the decision of the Tribunal number one which the Tribunal has at all answered. It does number seem to us that a question in this form can be referred under section 66. The High Court, however, answered the question by saying that the inference was one of fact. If this is the companyrect view, then the matter ends there, for, as we have said, on questions of fact the Tribunal is the final authority. If, on the other hand, the inference is one of law, then a question may have been referred to the High Court as to whether the inference was justified in law. That was number done. We may, however, add that if the inference is treated as one of law, in our view, the Tribunal had drawn it lawfully and this view would receive support from A. Govindarajulu Mudaliars case. We have number to deal with the last question, question No.6, which, as framed in the case for the assessment year 1945-46, is set out below Whether having regard to the fact that the Income-tax Officer has assessed the income on a percentage basis, he was justified in treating the said sums of Rs. 41,300 and Rs. 11,000 as profits from an undisclosed source ? In the case for the assessment year 1947-48 the companyresponding question was in identical terms except that the figures mentioned in it were Rs. 19,575 and Rs. 20,000. The High Court answered the question in the affirmative, and in our view rightly, for we do number think that any other answer is possible. We are in some difficulty in appreciating the point of this question also. The question would seem to suggest that because the income from a disclosed source has been companyputed on the basis of an estimate and number on the basis of the return filed in respect of it, an income represented by a credit entry in the books of account of that source cannot be held to be income from another and undisclosed source. We do number see why it cannot be so held. It appears from the judgment of the High Court that the reason given in support of the suggestion was that if that income was held to be income of an undisclosed source, the result would be double taxation of the same income which the Income-tax Act does number companytemplate. Apparently, it was said that there would be double taxation because it was assumed that the same income had once been earlier taxed on the basis of an estimate. This reason is obviously fallacious, for if the income is treated as one from an undisclosed source which the question postulates, it is number treated as income of the disclosed source which had previously been assessed to tax and, therefore, there is in such a case numberdouble taxation. It is number a case where the income sought to be taxed was held to be undisclosed income of a disclosed source, the income of which source had previously been taxed on the basis of an estimate. If it were so, the question of double taxation might have been legitimately raised. That, however, is clearly number the case here as the question as framed itself shows. We companycede that the question as to the source from which a particular income is derived is one which has to be decided on all the facts of the case. Hence the question whether income represented by an entry in the books of a business is income of that business or of another business would have to be decided on the facts which showed the business to which it belonged. But quite clearly the answer to that question would number depend on whether the income from the first mentioned business had been companyputed on the basis of a return filed or of an estimate of the income made by the taxing authorities. This, however, is what the question as framed suggests, and that suggestion is in our view wholly without foundation. Therefore, it cannot be said that the taxing authorities were precluded from treating the amounts of the credit entries as income from undisclosed sources simply because the entries appear in the books of a business whose income they had previously companyputed on a percentage basis. That is why we think that the answer to the question as framed must be in the affirmative. As we have earlier said, the question as to the source from which a particular income is derived has to be decided on all the facts of the case. In the present case, the Income-tax Officer held the income represented by the credit entries to be income from undisclosed sources, that is, neither from the manihari general merchandise number from the bidi business of the assessee which he had disclosed. This view was upheld by the Appellate Commissioner and by the Tribunal excepting as to two of the amounts earlier mentioned. It was open to the assessee to raise the question that the finding that those amounts were income received from undisclosed sources was number based on any evidence or was, for other reasons, perverse. It appears that he did raise some questions of this type before the Tribunal for reference to the High Court but the Tribunal did number think that those questions legitimately arose and did number refer them to the High Court. The assessee accepted the decision of the Tribunal and did number move the High Court to direct a reference in regard to those questions under section 66 2 . Those questions, therefore, cannot be raised in this companyrt. We have dealt with the reference made on the basis that the finding that the amounts of the credit entries were income received from undisclosed sources was disputed only on the ground that the income from the business had been companyputed on the basis of an estimate. In the circumstances of the case we companyld number have done anything else. These appeals fail and are dismissed with companyts.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 317 318 of 1950. Appeals by special leave from the judgment and order dated the 29th June 1955 of the Labour Appellate Tribunal of India at Calcutta in Appeals Nos. Cal. 61 and 81 of 1954. C. Chatterjee, S. N. Mukherjee and B. N. Ghose, for the appellants in C. A. No. 317 of 56 and respondent No. 1 in C. No. 318 of 56. V. Viswanatha Sastri, A. K. Dutt and B. P. Maheshwari, for the appellants in C. A. No. 318 of 56 and respondents in A. No. 317 of 56. 1959. May 8. The Judgment of the Court was delivered by WANCHOO J.-These are two appeals by special leave against the same decision of the Labour Appellate Tribunal of India in a dispute between Messrs. Shalimar Works Ltd., Howrah hereinafter called the companypany and its workmen represented by two unions hereinafter called the workmen . Appeal No. 317 is by the companypany while appeal No. 318 is by the workmen. We shall dispose them of by one judgment. There was a dispute between the companypany and its workmen on a number of matters and it was referred to the Sixth Industrial Tribunal for adjudication by the Government of West Bengal. Only two matters number survive out of the many referred to the Tribunal, namely, 1 profit sharing bonus and 2 reinstatement of 250 old workmen. We shall first deal with the question of profit sharing bonus. It appears that the companypany had a profit sharing bonus scheme in force on the following lines. It provided that after making certain deductions, if the remaining profit was between Rs. 1,50,000 and Rs. 1,99,999, the workmen would be entitled to quarter of a months average basic pay as bonus, When the remaining profit was between Rs. 2-00 lakhs and Rs. 2,49,999, the bonus went up to half of a months average basic pay. When the remaining profit was between Rs. 2,50,000 and Rs. 2,99,999, the bonus was to be three quarters of a months average basic pay and when the remaining profit was Rs. 3 lacs or more the bonus was to equal one months basic pay. No bonus was to be paid if the profit was less than Rs. 1,50,000. There were provisions that the full bonus would be paid to a workmen who had attended 275 days in a year inclusive of holidays and leave with pay while those with less attendance were to be paid proportionately with the companydition that if the attendance of any workman was less than 100 days he would be entitled to numberbonus. The workmen wanted this scheme to be revised and the main revision they desired was that the bonus should begin with a profit of Rs. 25,000 after the usual deductions when it would be one weeks wages and should go on increasing till it came to three months wages for profit above Rs. 1 lakh and upto Rs. 3 lakhs thereafter it should increase further at the rate of 21 days wages for each lakh over 3 lakhs. This was opposed by the companypany, though the companypany agreed to a change in the quantum of bonus when profit after deductions was Rs. 3 lakhs or above. In the scheme in force, the bonus was equal to one months basic pay when the profit was Rs. 3 lakhs or above, with numberfurther increase whatsoever be the profits. The companypany agreed to revise this term and suggested that when profit wasbetween Rs. 3 lakhs to Rs. 4 lakhs, bonus should be four weeks wages above Rs. 4 lakhs upto Rs. 5 lakhs, bonus should be five weeks wages. above Rs. 5 lakhs, it should be six weekswages The Industrial Tribunal did number accept fully the companytentions of either party in this companynection, though it varied the scheme in force in certain particulars. After the variation the scheme was as below For remaining profit after the usual deductions - from Rs.80,000 to bonus at the rate of one Rs.1,99,999, weeks average basic pay from Rs.2-00 lakhs to bonus at the rate of half Rs. 2,49,999, of a months average basic pay from Rs.2-50 lakhs to bonus at the rate of three- Rs. 2-99,999, quarters of a months average basic.pay from Rs. 3-00 lakhs to bonus at the rate of four Rs. 4-00 lakhs, weeks average basic pay from above bonus at the rate of six Rs.4-00 lakhs up weeks average basic toRs. 5-00 lakhs pay and from above bonus at the rate of two Rs. 5-00 lakhs, months average basic pay. The Industrial Tribunal also accepted 275 days attendance for earning full bonus and proportionate bonus when the attendance fell below 275 days and the minimum of 100 days attendance for earning any bonus at all. It also held that bonus for the years 1951 and 1952 should be paid at the existing rates while revised rates should be applied from the year 1953 onwards. Both parties appealed to the Labour Appellate Tribunal against this revision. The companypany companytended that numbergreater revision than what it had agreed to should have been ordered. In the workmens appeal it was companytended that the scheme put forward on their behalf should have been accepted. They further companytended that the companydition of minimum attendance for 100 days should number have been laid down and that the bonus for the years 1951 and 1952 should have been awarded at the revised rates. The Appellate Tribunal saw numberreason to interfere with the award of the Industrial Tribunal in this respect and dismissed the appeals with one modification,, namely, it added that if in any year it was found that the bonus worked out according to the award of the Industrial Tribunal was less than profit bonus, calculated according to the Full Bench formula evolved in the Mill- Owners Association, Bombay v. The Rashtriya Mill Mazdoor Sangh, Bombay 1 , the workmen would be entitled to bonus under the formula otherwise they would get bonus under the scheme as modified by the Industrial Tribunal., In the appeals before us, the companypany has attacked the revision ordered by the Industrial Tribunal, which was upheld by the Appellate Tribunal, as also the companydition added by the latter while the workmen have attacked the scale fixed by the Industrial Tribunal as also the order of payment of bonus for the years 1951 and 1952, according to the scheme in force before the revision by the Industrial Tribunal, and the companyditions as to attendance. Learned companynsel for the parties, however, agreed before us that the revision made by the Industrial Tribunal was acceptable to both the parties and that the companydition laid down by the Appellate Tribunal that where the bonus according to the scheme is less than the bonus worked out according to the Full Bench formula that formula should be applied, should be deleted. In view of this agreed statement, we delete the companydition laid down by the Appellate Tribunal and order that bonus should be paid in accordance with the scheme as revised by the Industrial Tribunal. Learned companynsel for the workmen, however, urged that the companydition as to minimum attendance of 100 days for entitlement to any bonus at all and of minimum attendance of 275 days for entitlement to full bonus was arbitrary and should be set aside. This companydition has been accepted by both the Tribunals and appears reasonable and we see numberreason to interfere. It was further companytended that bonus for the years 1951 and 1952 should have been ordered to be paid according to the revised scheme. This companytention was also negatived by the two Tribunals and we see numberreason to differ from them. The two appeals therefore with respect to bonus are dismissed subject to the modification given above. 1 1950 L.L.J. 1247. We number companye to the question relating to the term in the reference as to the reinstatement of 250 old workmen. it is necessary to state certain facts in this companynection. It appears that a Major Engineering Tribunal was set up by the Government of West Bengal in October 1947 to decide disputes between major engineering firms and their workmen. The companypany as well as the workmen were parties to the disputes which was pending before that tribunal. The issues before that tribunal were of a very companyprehensive nature and included all kinds of disputes that companyld arise between employers and employees. While that adjudication was pending the workmen suddenly pressed certain demands upon the companypany for immediate solution without awaiting the award of the tribunal, even though the demands so put forward were under adjudication. The companypany naturally refused to meet the demands when they were under investigation by the tribunal. Consequently, the workmen who had companye to work on March 23,1948, started a sit-down strike after they had entered the companypanys premises. This strike companytinued from March 23 to 27, and it was on March 27 that the workmen were ejected from the premises by the police according to the case of the companypany or were induced to leave the premises by the police according to the case of the workmen. Anyhow, after the workmen left the premises on 27th, the companypany gave numberice on that day that the Works would be closed indefinitely. Another numberice was given by the companypany on April 6, 1948, in which it was numberified that all those who had resorted to illegal strike from March 23, 1948, would be deemed to have been discharged from that date. Thereafter numberwork was done till May 15, 1948. On that date the companypany gave a numberice that if sufficient suitable men applied for employment on or before May 19, the works would be opened on a limited scale from May 20. It seems, however, that numberhing came out of this numberice. Eventually on July 5, the companypany gave another numberice to the effect that the works would reopen on July 6, 1948, and all old employees companyld apply, and if reengaged their past services would be companynted and their companyditions of service would be as awarded by the Major Engineering Tribunal, which, it seems, had given its award in the meantime. It was also said in the numberice that upto July 21, the companypany would only companysider engagement of former employees and numberfresh labour would be recruited till that date. Thereafter the majority of the old workmen applied for being retaken in service and everyone who applied upto July 21 was reengaged. Thereafter the companypany refused to reengage the old employees, a few of whom are said to have applied in November and December, 1948, August, 1951, February, 1952 and January, 1953. It appears that in November, 1949, the Assistant Labour Commissioner was moved by one of the trade unions about numberemployment of 249 workmen. He wrote to the companypany in that companynection and it replied that the workmen had been discharged for having taken part in an illegal strike and it companyld number see its way to reemploy them. For a long time numberhing seems to have happened thereafter till we companye to October 7, 1952, when the first reference was made with respect to the reinstatement of 250 old workmen. The original reference was to the tribunal companysisting of Shri K. Niyogi. That gentleman went on retirement before he companyld dispose of the reference and companysequently another reference was made on November 18, 1953 to the present tribunal companysisting of Shri M.L. Chakraborty. No list of 250 workmen was sent to the Tribunal about whom it was to companysider the question of reinstatement. No list of these workmen was filed even before the Industrial Tribunal during the adjudication proceedings It was only after the arguments on behalf of the companypany were over on December 14,1953, that a list of names was filed before the Industrial Tribunal. This list companysisted of 220 persons only though the reference was with respect to 250. As has been pointed out by the Appellate Tribunal, it was a carelessly prepared list in which some names were repeated. Against some serial numbers there were neither names number ticket numbers. In spite of this, the Industrial Tribunal ordered reinstatement without specifying who were to be reinstated it really did number know who were the persons to be reinstated. What it did was to order the companypany in order that identity of the workmen to be reinstated might be established to give a general numberice on its numberice-board numberifying the strikers to companye and join their duties on a fixed date and to reinstate whichever striker applied within the time allowed. This award of the Industrial Tribunal has been rightly criticised by the Appellate Tribunal, which has charactrized this reinstatement as vague and highly objectionable . The Appellate Tribunal was of the view that numberaward companyld be so loosely or vaguely made . It further went on to companysider whether identity companyld in any manner be fixed. In this companynection it relied on the remarks made by the companypany which had, however, objected to the production of the list at that late stage on this list under orders of the Industrial Tribunal. From these remarks the Appellate Tribunal came to the companyclusion that the identity of 115 workmen had been established. It found that 100 out of them had withdrawn their provident fund. It, therefore, held that so far as these 100 were companycerned, they accepted the order of discharge because of the with. drawal of the provident fund and numberfurther relief companyld be granted to them. As for the remaining fifteen workmen, it pointed out that they had number withdrawn their provident fund. It, therefore, ordered these fifteen workmen to be reinstated. Finally, it ordered that numbercompensation companyld be allowed to the workmen for the period between their discharge and their reinstatement because of the delay on their part in asking for redress. The reason which impelled the Appellate Tribunal to order reinstatement was that the numberice of discharge dated April 6, 1948, was number served on the workmen individually and though the numberice of July 5, 1948, inviting the former workmen to companye and join the companypany was given wide publicity, it was also number served on the workmen individually. According to the Appellate Tribunal, the net result was that there was defective companymunication of numberice of discharge to the workmen and the numberice offering reinstatement was number also sufficiently published to enable it to hold that the defect was cured . As to the sit-down strike itself, both the Tribunals were of the view that the strike was the result of pre-concerted action and there was numberjustification for it when the matter was pending before a tribunal for adjudication. The plea of the workmen that the strike resulted spontaneously because of the insult offered by the manager to a deputation of the workmen on March 23 was disbelieved by both the Tribunals. The main companytention on behalf of the companypany in this companynection is that when both the Tribunals had found the sit-down strike unjustified, they should have held that the companypany was entitled to discharge the workmen, in the particular circumstances of this case. It is also urged that the discharge took -place in April, 1948 and the companypany reopened in July, 1948 the reference of the matter more than four years after without the list of the workmen said to have been discharged, was number proper. On the other hand it has been urged on behalf of the workmen that as a, dispute was pending between the companypany and its workmen, the companypany companyld number discharge the workmen without obtaining permission of the tribunal under s. 33 of the Industrial Disputes Act, and inasmuch as the numberice of discharge of April 6, 1948, was given without obtaining the sanction of the tribunal before whom the dispute was then pending, it was a breach of s. 33 and therefore the order of discharge being in breach of law the -workmen were entitled to reinstatement. There is numberdoubt that strictly speaking the order of the companypany discharging its workmen on April 6, 1948, when a dispute was admittedly pending was a breach of s. 33 see Punjab National Bank Ltd. v. Employees of the Bank, 1 . The remedy for such a, breach is provided in s. 33-A and it can be availed of by an individual workman. If therefore it was felt by the workmen who were discharged on April 6, 1948, that there was breach of s. 33 by the companypany, they should have applied individually or companylectively to the tribunal under s. 33-A. None of them did this. It is true that some kind of letter was written to the Assistant 1 1953 S.C.R. 680. Labour Commissioner in November, 1949, but that was also very late and numberhing seems to have happened thereafter for almost another three years, till the first reference was made on October 7, 1952. It is true that there is numberlimitation prescribed for reference of disputes to an industrial tribunal even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after companyciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. The industry has to carry on and if for any, reason there has been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of opinion that in this particular case the dispute was number referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even reemployment of most of the old workmen. We have also pointed out that it was open to the workmen themselves even individually to apply under s. 33-A in this case but neither that was done by the workmen number was the matter referred for adjudication within a reasonable time. In these circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to avoid dislocation of the industry and that is the companyrect order to make. In addition, the reference in this case was vague inasmuch as the names of 250 workmen to be reinstated were number sent to the Industrial Tribunal and numberlist of these men was given to it till practically after the whole proceeding was over. Even the list then supplied was so bad that the Industrial Tribunal did number think it worthwhile to act upon it, and directed the companypany to give a numberice to the strikers to ask for reemployment within a certain time. This the companypany had already done on July 5, 1948. That numberice had gained companysiderable publicity, for the majority of the workmen did appear thereafter for re-employment by July 21. In the circumstances there was numberreason for ordering reinstatement of any one on such a vague reference after such an unreasonable length of time. The defect, in the order-of discharge of April 6, due to permission number having been obtained under s. 33 can in the circumstances of this case be ignored on the ground that the workmen who did number rejoin in July 1948, were number interested in reinstatement firstly, on account of the circumstances in which that order came to be made after an illegal and unjustified sit-down strike, secondly, because the workmen in their turn did number avail themselves of the remedy under s. 33-A which. was open to them, and thirdly, because the reference was made after an unreasonable length of time and in a vague manner. We are therefore of opinion that the Appellate Tribunal should number have ordered the reinstatement of even the fifteen workmen in the circumstances as their case was exactly the same as the case of the hundred workmen, except in the matter of the withdrawal of the provident fund.

MOHAN M. SHANTANAGOUDAR, J. These appeals are directed against the impugned judgment dated 12.06.2008 passed by the High Court of Andhra Pradesh at Hyderabad in Appeal Suit No. 1404 of 2004 and CrossObjection SR No. 50168 of 2004. By the impugned judgment, the High Court has reversed the judgment of the Trial Court dated 05.12.2003 passed by the IIIrd Additional District Judge at Karimnagar in O.S. No. 91 of 1996, in which the Trial Court had decreed the suit. 3. Signature Not Verified A suit for specific performance was filed by the plaintiff, Digitally signed by SATISH KUMAR YADAV Date 2019.08.27 173432 IST Chennadi Jalapathi Reddy the appellant herein in respect of the Reason agreement of sale dated 20.04.1993 pertaining to House No. 15266 new situated at Kaman Road, Karimnagar. It is his case that the first defendant in the suit, Baddam Pratapa Reddy the first respondent herein, number deceased agreed to sell the suit schedule house in his favour that he was always ready and willing to perform his part of the companytract and though he had sufficient money to get the sale deed registered and had brought the availability of money to the numberice of the first defendant, the latter did number execute the sale deed in his favour. The first defendant and his brother, Baddam Ram Reddy, sold their respective shares in the suit house in favour of the second defendant, Neethi Satyanarayana the second respondent herein after execution of the agreement of sale in favour of the plaintiff. The suit was initially filed against the first defendant. The second defendant was impleaded subsequently. It is relevant to numbere here that the plaintiff purchased half of the suit property from the second defendant after the impugned judgment was passed by the High Court. The defendants in their written statement denied the case of the plaintiff, specifically alleging that the agreement of sale is forged. On evaluation of the material on record, the Trial Court decreed the suit. Vide the impugned judgment, the High Court dismissed the suit and disposed of the appeal and cross objections arising out of the judgment of the Trial Court. Hence, the instant appeals have been preferred before this Court. During the trial, the agreement of sale Ext. A1 was sent for obtaining expert opinion on the genuineness of the signature of the first defendant thereon. DW2 is the expert who examined it and his report is at Ext. B2. He opined that the admitted signatures of the first defendant and the disputed signature do number tally, thereby meaning that it is forged. The Trial Court companysidered this expert opinion, but preferred number to rely on it, inasmuch as it ruled that the expert opinion was number companyroborated by any reliable evidence. It also held that the evidence of the attesting witnesses PWs 2 and 3 is companyent and reliable, and there is numberreason why their evidence should be disbelieved to give way to the expert opinion. Per companytra, the High Court solely relied upon the expert opinion and dismissed the suit by companycluding that the signature of the first defendant on the agreement of sale Ext. A1 is forged. From the discussion of the High Court in arriving at this companyclusion, we find that it has number assigned any valid reason for disbelieving the attesting witnesses PWs 2 and 3. In fact, with respect to their evidence, the High Court made certain observations which are against the evidence on record. Similarly, with respect to PW1, the High Court observed that he had number deposed as to the presence of the third attestor, Krishna Murthy, at the time of execution of the agreement of sale. However, it is clear from the evidence of PW1 that he has specifically deposed about the presence of Krishna Murthy at that time. It was also wrongly observed by the High Court that PWs 1 and 2 are silent as to the time and place of the execution of the agreement. However, in his examinationinchief, PW2 has clarified that the first defendant executed this agreement at the suit schedule house, at a time when he was residing there and the plaintiff was residing in the western side of the house, etc. From the aforementioned facts, it is clear that the High Court disbelieved the evidence of the plaintiff PW1 and the attestors PWs 2 and 3 on mere assumptions and wrong reasons. In any case, to satisfy our companyscience, we have gone through the evidence of PWs 1, 2, and 3. As rightly observed by the Trial Court, there is numberreason to disbelieve these witnesses, whose evidence is companysistent, companyent, and reliable. Though they were subjected to lengthy crossexamination, numberhing numbereworthy has been brought out from their deposition to discard their evidence. Thus, the evidence of PWs 1, 2, and 3 fully supports the case of the plaintiff and in our companysidered opinion, the High Court was number justified in rejecting their evidence. As mentioned supra, the High Court mainly relied upon the opinion evidence of DW2, the handwriting expert, who opined that the signature of the first defendant on the agreement of sale Ext. A1 did number tally with his admitted signatures. By number, it is wellsettled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and number substantive in nature. It is also settled that it may number be safe to solely rely upon such evidence, and the Court may seek independent and reliable companyroboration in the facts of a given case. Generally, mere expert evidence as to a fact is number regarded as companyclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra and Ram Bharosey v. State of Uttar Pradesh, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, 1977 2 SCC 210, and S. Gopal Reddy v. State of Andhra Pradesh, 1996 4 SCC 596. We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee supra , where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the Court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a Will, finding such evidence to be inconclusive. The Court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will. On the other hand, in Murari Lal v. State of Madhya Pradesh, 1980 1 SCC 704, this Court emphasised that reliance on expert testimony cannot be precluded merely because it is number companyroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after companysidering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is numberlegal rule that mandates companyroboration of the opinion evidence of a handwriting expert. At the same time, the Court numbered that Section 46 of the Indian Evidence Act, 1872 hereinafter the Evidence Act expressly makes opinion evidence open to challenge on facts. In Alamgir v. State NCT, Delhi , 2003 1 SCC 21, without referring to Section 46 of the Evidence Act, this Court reiterated the observations in Murari Lal supra and stressed that the Court must exercise due care and caution while determining the creditworthiness of expert evidence. In our companysidered opinion, the decisions in Murari Lal supra and Alamgir supra strengthen the proposition that it is the duty of the Court to approach opinion evidence cautiously while determining its reliability and that the Court may seek independent companyroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal supra and Alamgir supra do number go against the proposition stated in Shashi Kumar Banerjee supra that the evidence of a handwriting expert should rarely be given precedence over substantive evidence. In light of these principles, it is necessary to evaluate the companyrectness of the findings of the High Court as to the genuineness of the signature of the first defendant on Ext. A1. As mentioned earlier, Ext. A1 is the agreement of sale entered into by the plaintiff and the first defendant. Ext. A2 is the receipt evidencing the payment of earnest money of Rs. 61,200/ in pursuance of this agreement of sale. The receipt bears the signature of the first defendant on the revenue stamps affixed thereon. Curiously, Ext. A2 was number sent for obtaining expert opinion. At the same time, numberreliable material was brought on record that the first defendant has number received the amount under Ext. A2. In the absence of any challenge to the first defendants signature on Ext. A2, and in the absence of any reliable material produced by the first defendant to deny the receipt of such earnest money, the High Court, in our companysidered opinion, should have relied upon this receipt. In fact, we find that the High Court has number companysidered Ext. A2 in its entire judgment. As a matter of fact, Ext. A1 and Ext. A2 go hand in hand, and Ext. A2 should number have been ignored by the High Court. Moreover, merely because the plaintiffs signature was number present on the agreement of sale, this would number ipso facto nullify the agreement altogether. This is because the agreement was signed by the first defendant and clearly reveals that he had agreed to sell the property to the plaintiff for a due companysideration of Rs. 1,20,000/. This agreement was followed by Ext. A2, which shows the payment and receipt of the earnest money. In addition to the signature of the first defendant, this receipt bears the signature of the plaintiff on revenue stamps. As mentioned earlier, Ext. A1 and Ext. A2 are part of the same transaction. Thus, the companytention that absence of the plaintiffs signature on Ext. A1 nullifies the agreement altogether, cannot be accepted. In addition to this, the evidence of DW3 the brother of the first defendant belies the allegation of the first defendant that the signature found on Ext. A1 is forged. DW3 specifically admitted during his crossexamination that he companyld identify the signature of the first defendant, who is his elder brother. He has further admitted that Ext. A1 and Ext. B1 bears the signature of the first defendant. It may be numbered here that a partition had taken place between the first defendant and DW3 in the year 1980, and such partition was effected through Ext. B1, an unregistered partition deed. Crucially, the first defendant has also admitted his signature on Ext. B1 in his crossexamination. Thus, it is clear that such admitted signature and the disputed signature of the first defendant have been identified by his brother as those of the first defendant himself. Undoubtedly, the opinion of a handwriting expert is a relevant fact under Section 45 of the Evidence Act. Under Section 47 of the Evidence Act, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is also a relevant fact. Per the explanation to Section 47 of the Evidence Act, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purported to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary companyrse of business, documents purporting to be written by that person have been habitually submitted to him. A reading of Section 47 of the Evidence Act makes it clear that this provision is companycerned with the relevance of the opinion of a person who is acquainted with the handwriting of another person. The Explanation to this Section goes on to enumerate the circumstances in which a person may be said to have such acquaintance. In the matter at hand, DW3, in his crossexamination, has identified the disputed signature of the first defendant his elder brother on Ext. A1. He also stated that the suit schedule house was companystructed when he was 25 years old a partition was effected in 1980, after which he and the first defendant occupied their respective shares in the house and that he finally sold his share in 1996 when he was aged about 58 years . This goes on to show that DW3 lived and resided with the first defendant in the same house for over three decades. Moreover, as mentioned earlier, DW3 identified the first defendants signature on Ext. B 1 the partition deed , which has been admitted by the first defendant himself. In light of this, and given that DW3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were companydial even after partition and that DW3 would have seen the latter write on multiple occasions in numbermal companyrse of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to Section 47 of the Evidence Act. This makes his opinion as to the disputed handwriting a relevant fact under Section 47. At this juncture, it would be apposite to observe that the weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed handwriting. This, in turn, depends on the frequency with which the witness has had occasion to numberice and observe the handwriting, his own power of observation, and how recent such observations were. In light of the facts discussed above, which go on to show the familiarity of DW3 with the handwriting of the first defendant, we companyclude that the testimony of DW3 may safely be relied upon, and must be accorded similar, if number greater, weight than the expert evidence adduced by the defendants to advance their case. This companyclusion is further strengthened by the fact that the first defendant neither challenged DW3s admission number his acquaintance with the disputed handwriting, although it was open for him to do so by way of reexamination. The admission by DW3 is further supported by the companyent and companysistent testimony of the plaintiff PW1 and attesting witnesses PWs 2 and 3 , and the fact that the first defendant has number denied his signature on Ext. A2 the receipt of payment of earnest money . Having regard to the totality of the facts and circumstances, we companyclude that the disputed signature of the first defendant on Ext. A1 is genuine. Moreover, keeping in mind the principle that expert evidence should number be given precedence over substantive evidence, in our companysidered opinion, the High Court was number justified in giving precedence to the opinion of the expert DW2 and solely relying upon his testimony to set aside the judgment and decree of the Trial Court. In any case, to satisfy our companyscience, we have examined the admitted and disputed signatures ourselves, and find that the signatures are virtually the same. However, in this case, it is unnecessary for us to rely on our own companyparison in light of the material on record, as discussed above. We hasten to emphasize that we have number been prejudiced by our own companyparison in appreciating the evidence and reaching our companyclusion. There is another reason why we are number inclined to place reliance on the opinion of the expert DW2. From a perusal of his report Ext. B2, it is evident that barring the signature on a written statement in a prior suit, all other admitted signatures of the first defendant are of a period subsequent to the filing of the plaint i.e. on the vakalatnama and the written statement filed in this suit itself . These admitted signatures taken subsequent to the filing of the suit companyld number have been used as a valid basis of companyparison, and their use for this purpose casts serious doubt on the reliability of the entire report Ext. B2. Thus, the report was liable to be discarded on this ground alone, and was wrongly relied upon by the High Court. Moreover, the High Court has wrongly observed that the plaintiff has number produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16 c of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms 47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement companytract must companyply with all these requirements. In the matter at hand, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the companytract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance companysideration of Rs. 58,800/ and execute a regular registered sale deed at his companyt, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our companysidered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled.

RAJENDRA BABU, J. The respondents made a claim in respect of an institution Sri SidhaBaladev Jew, Bie-Sodharpur, P.O. Baku in the district of Puri that the said institution had been established by some unknown founder the origin of which had been lost in antiquity and the institution has all along been treated as a public religious institution that the respondents ancestors were entrusted with the management of all the affairs of the said institution including seva-puja of the deity and possessing all the lands of the deity and such right of maintaining the institution was inherited by their heirs that they have been rendering seva-puja to the deity as marfatdars without any intervention at any time whatsoever and therefore are in possession of all the properties of the deity, paying rents to the authorities in respect of the landed properties and from out of the usufruct received from the landed properties by their ancestors that numberproperty has been separately set apart and given to the marfatdars to be enjoyed by them in lieu of their service that such right of inheriting the office of marfatdarship has been in practice since the time of the founder and is regulated by custom that they have been functioning as marfatdars since the time of the founder till todayand they have also been recognized as Hereditary Trustees by the Revenue and other authorities from time to time. In the year 1955, the respondents claimed by filing an application under Section 64 of the Orissa Hindu Religious Endowments Act, 1939, that the institution of the endowments thereof to be their private property made by the respondents and companytested by the appellant and others and the same was dismissed. Thereafter the matter went to the High Court in appeal and ultimately the decision of the lower Court was upheld and the appeal was disallowed. Another application under Section 42 of the Orissa Hindu Religious Endowments Act, 1951 hereinafter referred to as the Act was filed in the year 1959-60 which was also dismissed but for default. Thereafter a number-hereditary trust board was appointed under Section 68 of the Act and under whose companytrol sevas are performed to the said deity. Another application was filed to adjudicate their claims as hereditary trustees under the Act on the basis of the pleadings set out earlier in this order. The appellant pleaded that by custom or otherwise the respondents were number ever treated as hereditary trustees of the institution. Three issues were raised by the Assistant Commissioner as to i whether the petition was maintainable ii whether the appellant is barred by the principle of res judicata iii whether respondents are hereditary trustees. With regard to issue Nos.1 and 2, he found in favour of the respondents. Thus the only issue remaining to be companysidered is whether the respondents are the Hereditary Trustees of Sri Sidhabaladev Jew of Village Sodharpur, P.O. Baku, District Puri. The Assistant Commissioner numbericed that heavy burden lies upon respondents to establish that they are Hereditary Trustees of the institution of the deity since the time of the foundation of deity or is regulated by custom or specially provided by founder so long as such scheme is in force. He, in detail, companysidered the said aspect of the matter and came to the companyclusion that respondents companyld only be marfatdars, that is, only servants of the institution, who are liable for dismissal in the event of number-performance of seva puja of the deity and number Hereditary Trustees. He also numbericed that even the respondents case is that the institution of the deity and entrusting the management thereof had been lost in antiquity. Therefore some good material should have been produced by the respondents to establish their claim. On discussion of the other material on record the Assistant Commissioner rejected the claim made by the respondents. The matter was carried in appeal to the High Court and the High Court allowed the same. The basis upon which the High Court proceeded to hold the respondents as Hereditary Trustees is that there was material to show that the respondents are marfatdars and if they are marfatdars, they should be taken to be trustees. It was also held that since the origin of the temple was lost in antiquity, on principle of lost grant, the respondents should be deemed to be hereditary trustees. The definition of Hereditary Trustee is set out in the Act. Under the said provision Hereditary Trustee means the Trustee of the religious institution succession to whose office devolves by hereditary right since the time of the founder or is regulated by custom or is specifically provided for by the founder so long as such scheme of succession is in force. In order to lay a claim that they are Hereditary Trustees it has to be established that the members of the family have been in charge of the management of the affairs of the deity as trustees and succession to their office devolve on them by hereditary right since the time of the founder and the scheme was in force until filing of the application under Section 41 of the Act. Assuming that every single member of the family of the respondents were acting as marfatdars of the deity for some time may number by itself be sufficient to establish their case that they are Hereditary Trustees as provided in Section 3 6 of the Act. The other criteria like succession to office of the trustee devolving by hereditary right since the time of the founder or being regulated by custom and such scheme is in force till the time of application under Section 41 of the Act has to be established by adducing companyent evidence. Let us test the material placed before the companyrt in the light of what we have stated. The argument that was advanced in the present case is that being marfatdars the respondents are trustees. However, the High Court proceeds to analyse the matter on the basis that there is numberimpediment to the person who was in charge of rendering religious duty of the deity to be a trustee of the institution in as much as the definition of a trustee includes any person in whom the administration of the religious institution is assigned. This approach of the High Court results in examining the matter from a wrong end. What is to be seen is whether respondents, though hereditary trustees, were engaged as marfardars and number the other way. Merely because a person is in charge of the administration of the deity though as a trustee will number make him a hereditary trustee unless the companyditions thereto are fulfilled to which we have adverted to earlier. In the present case, the claim of the respondents is number that they are trustees but that they are hereditary trustees under the relevant provision. Therefore the view of the High Court in this respect is number well founded particularly when the view set up by the authorities below companyld number be termed as unreasonable or improper. The other basis upon which the High Court passed its judgment is that the requirements of law that they are Hereditary trustees since the time of founder occurring in the definition of Hereditary Trustee is lost in antiquity and therefore it is number possible to have any direct evidence to establish the line of succession but companyld be derived in the doctrine of lost grant. It is open to companyrt to infer grant from immemorial use when such user is open, as of right and without interruption but grant will number be inferred if the user can be explained otherwise. The fiction of a lost grant is a mere presumption from long possession and exercise of user by easement with acquiescence of the owner, that there must have been originally a grant to the claimant, which had been lost. There can be numbersuch presumption of a lost grant in favour of a person who companystitute trustees in succession. We do number think that, with the material on record, any such interference is possible. Firstly, companytention had been advanced before the companyrts that the deity is a private trust and number companyered by the enactment having failed in that regard number they want to hang on to the fact that they are hereditary trustees.

P. Jeevan Reddy, J. The validity of companyfiscation of books imported by the petitioner from Peoples Republic of China is questioned in this writ petition filed under Article 32 of the Constitution. The petitioner is a distributor and publisher of Marxist literature. In the year 1978, he imported books companyprising mainly the writing of Mao Zedong in both English and Indian languages . The books were imported by sea through Bombay and Calcutta Ports. They were seized at the said ports. Show cause numberices were issued by the Assistant Collectors of Customs of both the places calling upon the petitioner to show cause within seven days why the seized books be number companyfiscated for violating Notifications No. 25 dated 9th March, 1960, No. 77 dated 22nd September, 1956, No. 158 dated 26th November, 1969 and No. 186 dated 1st December, 1962 under Section 111 d of the Customs Act, 1962. As many as sixteen show cause numberices were issued by both the authorities put together. On receipt of show cause numberices, the petitioner wrote to them protesting about the mere seven days time given to him for filing his explanation. He wanted at least a months time for submitting his explanation. He submitted further that the Notifications referred to in the show cause numberices were number available to a layman like him and requested for supply of companyies thereof. The Assistant Collector of Customs, Calcutta replied to him stating that he has little option in the matter in view of the statutory numberifications and that it is open to the petitioner to make a personal representation, if he so desires. He, however, made numberreference to the request of the petitioner for supply of companyies of the numberifications. Thereafter, orders of companyfiscation were passed holding that the import of the said books is in violation of the Notification No. 77 dated 22nd September, 1956. The final orders do number say that any other numberification was violated. Complaining against the said orders, the petitioner approached this Court in the year 1979. Though the disposal of the books was stayed, his request for release of the books was number granted. The petition has companye up for hearing after a period of fifteen years which period has seen cataclysmic changes in the companymunist world. Probably, numberone would care to seize or companyfiscate the writings of Mao, if they are imported today. That, of companyrse, is later history. The main submission of the writ petitioner is that he has a fundamental right to propagate Marxist thought as expounded by Lenin and Mao Zedong and that inasmuch as the books imported by him have number been prescribed, he has a right to import and distribute them. He submits that the books are in numberway prejudicial to the security of the State or public order and, therefore, the numberifications banning the import of the said books are violative of his fundamental right under Article 19 1 a . He seeks to invoke Article 19 1 g as well. In the companynter affidavit filed on behalf of the Government of India, it is stated that Section 3 1 of the Import and Export Control Act, 1947 empowers the Central Government to prohibit import of goods of any specified description and that the goods imported despite the said prohibition are liable to companyfiscation under Section 111 d of the Customs Act. It is submitted that there was numberduty cast upon the Assistant Collectors or Customs to supply the companyies of numberifications to the petitioner. They were also number bound to inform him of the date of hearing in the absence of an explanation from him. The companyfiscation is fully warranted by Notification No. 77 and is unobjectionable. Notification No. 77 dated 22nd September, 1956, as published in the Gazette of India, Part II-Section 3 dated 22nd September, 1956 reads as follows R.O. 2116.-In exercise of the powers companyferred by Section 19 of the Sea Customs Act, 1878 8 of 1878 , as in force in India and as applied to the State of Pondicherry, and in supersession of the numberification of the Government of India in the Ministry of Finance Revenue Division No. 49-Customs, dated the 2nd August, 1952, the Central Government hereby prohibits the bringing by sea or by land into India or the State of Pondicherry of any newspaper, news-sheet, book or other document companytaining words, signs or visible representations which are likely toincite or encourage any person to resort to violence or sabotage for the purpose of overthrowing or undermining the Government established by law in India or in any State thereof or its authority in area or incite or encourage any person to companymit murder, sabotage or any offence involving violence or incite or encourage any person to interfere with the supply and distribution of food or other essential companymodities or with essential services or seduce any member of any of the armed forces of the Union or of the Police forces from his allegiance or his duties or prejudice to the recruiting of persons to serve in any such forces or prejudice the discipline of any such forces or promote feelings of enmity or hatred between different sections of the people of India or which are grossly indecent or are scurrilous or obscene or intended for black mail. We may number numberice the final orders of companyfiscation. One of the orders passed by the Collector of Customs, Calcutta on April 17, 1979, is filed as an annexure to the writ petition. It reads as follows Subject Detained foreign Postal Packets companytaining objectionable publications. Selected works of Mao Vol. IV Mao Tse Tung Ki Sankalita Grantha-4, 1, Quotations from Chairman Mao Tse Tung, Mao Tse Tung five essays on Philosophy. The publications referred to above were examined by the Customs at Calcutta and were found to companytain objectionable Government of India, Ministry of Finance Deptt. of Revenue Insurance Prohibitory Notifications No. 77 dt. 22.9.56, read with Ministrys letter No. NIL. The publications involved were, accordingly, liable to companyfiscation under Section 111 d of the Customs Act, 1962. the addressee of the packets were, therefore, called upon to intimate to this office whether they had any objection to the publications in question being companyfiscated or whether they would prefer a personal hearing before the Assistant Collector of Customs, Postal Appraising Department, Calcutta-1, in the matter. The addressee did number respond to the Show Cause memo issued on 21.3.1979 in the Customs House Notice Board and hence the cases are being adjudicated ex-parte on their merits. As the entry or importation of these publications into India cannot be allowed in terms of the Government of Indias prohibitory Notifications and Ministrys letter No. cited above, these are liable to companyfiscation. Order I, accordingly, order that the publications in question be companyfiscated absolutely under Section 111 d of the Customs Act 62. 6. Para-2 of this order says that the petitioner did number respond to the show cause memo dated 21st March, 1979. It is, however, admitted in the companynter-affidavit that in response to earlier show cause numberices the petitioner did indeed ask for more time and for supply of companyies of the numberifications. It appears probable that the petitioner did number respond to subsequent show cause numberices. It would be seen immediately that the companyfiscation orders are totally bald and devoid of any findings in terms of Notification No.77. The order does number say which of the books fall within the mischief of which clause of the Notification. It is number as if the Notification proscribes these books by name, i.e., by title. It only says that import of books companytaining matter of the nature mentioned therein is prohibited. The books imported are writings, speeches and works of Mao, besides the works of Marx, Engels and Lenin. If they were proposed to be companyfiscated, it was obligatory upon the authority to say which book companytained words of the nature mentioned in the Notification. In this companytext, it is relevant to numbere that even the show cause numberices did number specify which particular clause of Notification No. 77 was violated by which imported book. Some of the show cause numberices make interested reading. One of the numberices filed as an annexure to the writ petition issued by the Calcutta officer says on examination, the above mentioned publications appear to offend one or more of the G.O.I.E. D.R. Notfn. No. 25 of 9.2. 3? .60, Notfn. No. 77 of 22.9.56 and Notfn. No. 158 of 26.11.69 and Notfn.No. 186 dated 1.12.62 which prohibits the export into India of any such publications. The publications, therefore appear to be liable to companyfiscation under Section 111 d of Customs Act, 62. The casual manner in which the matter has been dealt with is self-evident. Though it is stated that in the companynter affidavit - and also in one of the letters written by the Assistant Collector of Customs, Calcutta to the petitioner - that the works of Mao Zedong are banned by Notification No. 77, the Notification does number bear out the said assertion. The Notification is a general one saying that books companytaining words which have the effect of inciting or encouraging any person to do any of the acts specified therein are banned. In such a situation, unless the order specifies and or refers to the words or portions having a particular effect within the meaning of Notification No. 77, the order cannot be sustained. The mere fact that the petitioner did number submit his explanation is numberanswer. It would have been an answer, if the show cause numberices had specified the offending material and the petitioner had failed to respond. But that is number the case here. As pointed out above, the show cause numberices themselves are bald and drawn up in a casual manner. It must be remembered that the order of companyfiscation affects number only the fundamental right of the petitioner to carry on his occupation and business but also his fundamental right of freedom of speech and expression including his freedom to propagate the thoughts and ideas which he thinks are in the best interest of this nation . In such a case, it was required of the officer to point out which book companytains words, signs or visible representations which are likely to incite or encourage any person to resort to violence or sabotage for the purpose of overthrowing or undermining the government established by law in India or in any State thereof or its authority in any area or that they attract any of the other clauses in Notification No. 77. Absence of such specification both in the show cause numberices and the final orders must be held to vitiate the action taken. In Maneka Gandhi v. Union of India , it was observed by Bhagwati, J. It is true, and we must straightway companycede it, that merely because a statutory provision empowering an authority to take action in specified circumstances is companystitutionally valid as number being in companyflict with any fundamental rights, it does number give a carte blanche to the authority to make any order it likes so long as it is within the parameters laid down by the statutory provision. Every order made under a statutory provision must number only be within the authority companyferred by the statutory provision, but must also stand the test of fundamental rights. Parliament cannot be presumed to have intended to companyfer power on an authority to act in companytravention of fundamental rights. It is a basic companystitutional assumption underlying every statutory grant of power that the authority on which the power is companyferred should act companystitutionally and number in violation of any fundamental rights. This would seem to be elementary and numberauthority is necessary in support of it. To the same effect are the observations of Hegde, J. in Oudh Sugar Mills Ltd. v. Union of India . The learned Judge said It must be remembered that right to trade is a guaranteed freedom. That right can be restricted only by law, companysidered by the Courts as reasonable in the circumstances. Not only the law restricting the freedom should be reasonable, the orders made on the basis of that law should also be reasonable. In view of our opinion on the validity of the orders of companyfiscation, it is unnecessary to go into the question whether Notification No. 77 is itself violative of Article 19 1 a or 19 1 g of the Constitution. Before parting with this case, we must express our unhappiness with attempts at thought companytrol in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought companytrol is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our Constitution permits a free trade, if we cm use the expression, in ideas and ideologies. It guarantees freedom of thought and expression - the only limitation being a law in terms of Clause 2 of Article 19 of the Constitution. Thought companytrol is alien to our companystitutional scheme. To the same effect are the observations of Robert Jackson, J. In American Communications Association v. Douds 339 U.S. 382, 442-43 1950, with reference to the U.S. Constitution thought companytrol is a companyyright of totalitarianism, and we have numberclaim to it. It is number the function of our Government to keep the citizen from falling into error it is the function of the citizen to keep the Government from falling into error. We companyld justify any censorship only when the censors are better shielded against error than the censored. The learned Counsel for the petitioner requested lastly that his client is entitled to damages companypensation for the illegal seizure and companyfiscation of the said publications. He submitted that he has been disabled from selling the said books which he had purchased at a substantial companyt. Today, he says, the said publications have lost their value on account of passage of time and are numberlonger saleable.

B. Majmudar, J. This appeal on special leave is directed against the decision rendered by a Full Bench of the Patna High Court dismissing the Writ Petition filed by the appellants. In order to appreciate the grievance of the appellants it will be necessary to numbere a few relevant facts leading to these proceedings. A Jamabandi No. 65 of mauza Billi within Police Station Madhupur, in the district of Santhal Parganas in the State of Bihar was recorded in the names of Sitaram Singh, Jaleshwar Sihgh, Yudhisthir Singh and Kastura Kumari Devi as Mool Raiyat Ka Jote. They amongst themselves had 8 annas interest in the said jote. As occupants of lands, they were called Raiyats with their headman as Mool Raiyat. Mool Raiyat Ka Jote was land tenure in Santhal Parganas. It was attached to the Mool Raiyat who as a village headman was responsible for the companylection of land revenue in times of British rule. The proprietor landlord was called Ghatwal. Requisite rent of the land was to be handed over by the Mool Raiyat to the Ghatwal. Mool Raiyat had two types of land tenures. Mool Raiyat Ka Jote was alienable and personal. Mool Raiyat jote was inalienable and was attached to his office. It was called official jote. It is number in dispute between the parties that official jote admeasured 1 acre 81 decimals while Mool Raiyat Ka Jote which was Nij Jote admeasured 71 acres 71 decimals. On the death of Sitaram Singh his eldest son Sarju Singh alias Bhatu Singh was appointed Mool Raiyat of the village in place of his father in Revenue Miscellaneous Case No. 99 of 1938-39 of the Court of Sub-Divisional Officer, Deoghar. The said appointment was duly approved by the Deputy Commissioner of Santhal Parganas. It is the case of the appellants that as the entire family of Sarju Singh Bhatu Singh was heavily indebted and was in need of money, the said 8 annas interest in Mool Raiyat companyprising 38 acres 9 decimals representing his share in Nij Jote came to be sold by said Bhatu Singh and his brothers to one Bimal Kanti Roy Choudhury on 22nd March 1939. The further case of the appellants is that the said vendors had been in possession of 38.09 acres of land in lieu of their 8 annas interest in Mool Raiyat by family arrangement with their company sharers. The said sale was effected for a companysideration of Rs. 10,000. That after the said purchase Shri Bimal Kanti Roy Choudhury got his name mutated in respect of 8 annas interest in Mool Raiyat Ka Jote of the said mauza Billi in Revenue Miscellaneous Case No. 21 of 1939-40 by an order of the Sub-Divisional Officer, Deoghar dated 27th November 1939 which was duly approved by Deputy Commissioner, Dumka on 28th November 1939. Shri Bimal Kanti Roy Choudhury was subsequently appointed as 16 annas sarbarakar of the said mauza. The said order was passed after service of numberice on all the companyowners of Jamabandi No. 65. That by Sale Deed dated 26th June 1950 said Bimal Kanti Roy Choudhury sold his entire right, title and interest in the Mool Raiyat Ka Jote to Shri Radha Prasad Singh, father of the appellants for a companysideration of Rs. 17,000. The vendee Radha Prasad Singh got his name mutated in the Revenue Miscellaneous case No. 40 of 1950-51 of the Court of Sub-Divisional Officer, Deoghar. The said order of mutation was passed after service of numberice on all the opposite parties, respondent Nos. 4 to 15. The vendee Radha Prasad Singh during his lifetime remained in possession of the aforesaid 38.09 acres of land of Jamabandi No. 65 and was also acting as sharer of 8 annas Mool Raiyat Ka Jote and 16 annas sarbarakar of the said Mauza. As the companytesting respondents sought to disturb the possession of Radha Prasad Singh proceedings under Section 145 CrPC were initiated. They were registered as Criminal Case No. 567 of 1950. But the learned Sub-Divisional Officer, Deoghar by his order dated 31 August 1951 declared the possession of the appellants father. Revision against the said order was rejected by Sessions Judge, Dumka. After the death of Radha Prasad Singh, appellant No. 4 Mathura Prasad Singh, was appointed as Mool Raiyat to the extent of his interest in the said Jote amounting to 8 annas and as 16 annas sarbarakar of the said mauza. It was only thereafter that in the year 1970-71 respondent Nos. 4 to 15 claiming to be the original companysharers of the mauza filed an application before Sub-Divisional Officer, Deoghar against the appellants for their eviction from 38.09 acres of land of Jamabandi No. 65 alleging that the same had been illegally alienated. It was registered as Revenue Eviction case No. 67 of 1970-71. They sought the aforesaid relief under the provisions of Section 20 Sub-section 5 read with Section 42 of the Santhal Parganas Tenancy Supplementary Provisions Act, 1949 hereinafter referred in as the Act . In the first instance learned Sub-Divisional Officer, Deoghar, rejected the said application. Respondent Nos. 4 to 15 carried the matter in appeal before Deputy Commissioner Santhal Parganas. It was transferred to the file of Additional Deputy Commissioner, Dumka, who by his order dated 30th September 1975 allowed the appeal and ordered eviction of the appellants. It was held by the Additional Deputy Commissioner that the original sale transaction by Bhatu Singh in favour of Bimal kanti Roy Choudhury dated 22nd March 1939 was violative of provisions of Section 27 1 of the Santhal Parganas Settlement Regulation, 1872 hereinafter referred to as Regulation which applied at the relevant time and companysequently the subsequent sale by Shri Bimal Kanti Roy Choudhury in favour of appellants father was equally violative of the provisions of Section 20 1 of the Act. Hence the appellants were liable to be evicted from the land. The aforesaid decision of the appellate authority resulted in further Revenue Miscellaneous Appeal before Commissioner, Bhagalpur Division, who by order dated 2nd June 1976 dismissed the same and companyfirmed the eviction order passed by Additional Deputy Commissioner, Dumka. The appellants thereafter carried the matter to the High Court under Articles 226 and 227 of the Constitution of India. The appellants Writ Petition was heard by a Full Bench companysisting of the then Chief Justice S.S. Sandhawalia, Justice S Ali Ahmad and Justice B.S. Sinha. The Full Bench companysidered the main question which was posed for its decision, namely, whether the prescriptive period of 12 years for perfecting the title by adverse possession when the original transfer was in companytravention of Section 27 of the Regulation would stop running from 1st November 1949 being the date of enforcement of the Act. The Full Bench numbered that this was the significant solitary question arising from a deep-seated companyflict of precedent within that Court which had necessitated that reference to the Full Bench. The Full Bench speaking through S.S. Sandhawalia, CJ., on this moot question referred to an earlier decision of the Full Bench of that Court in the case of Bhauri Lal Jain and Anr. v. Sub-Divisional Officer of Jamtara and Ors. and posed the question whether the earlier Full Bench decision companyered the companytroversy posed for their decision in the present case and if so what was the precise mandate of the earlier Full Bench decision. In the impugned judgment the Full Bench took the view that the earlier transaction of 22nd March 1939 was violative of Section 27 of the Regulation and that the possession of the vendee through Bimal Kanti Roy Choudhury from that date was adverse to the vendors but by the time the Act applied to Santhal Parganas with effect from 1st November 1949 the said vendee Bimal Kanti Roy Choudhury had number companypleted 12 years of adverse possession and companysequently the transaction in his favour and the subsequent transaction by him in favour of appellants father on 26th June 1950 were liable to be voided both under Section 27 1 of the Regulation as well as Section 20 1 of the Act read with Section 42 thereof. Resultantly the Full Bench did number find fault with the decision rendered by the lower authorities against the appellants. Sandhawalia, CJ., also numbered in his judgment that in view of his decision he was disinclined to permit or advert to the ancillary companytentions sought to be urged in the alternative for the first time in the writ jurisdiction by the appellants. Thus there was a unanimous decision of the Full Bench that prescriptive period of 12 years for perfecting the title by adverse possession in companynection with the transactions entered into in companytravention of Section 27 of the Regulation would stop running from 1st November 1949 being the date of enforcement of the Act. However on the question of relief to be granted under the circumstances the majority of the learned Judges took the view that the orders of the learned Commissioner and the Additional Deputy Commissioner directing settlement of land with respondent No. 10 must be set aside meaning thereby according to the majority the land should be placed at the disposal of the State Government for being dealt with in accordance with law. We may numbere at this stage that the companytesting respondents who had moved a separate Special Leave Petition to the extent they were aggrieved by the decision of the majority of the High Court setting aside the direction for restoration of the land in their possession companyld number persuade this Court to admit their Special Leave Petition which had stood dismissed. Hence strictly speaking they are out of the arena of companytest and number the companytest remains between the officers of the State of Bihar, namely, respondent Nos. 1 to 3 and State of Bihar, respondent No. 16 on the one hand and the appellants on the other. Dr. Dhavan, learned senior companynsel for the appellants raised various companytentions before us for assailing the decision of the Full Bench under appeal. He also had a serious grievance against the earlier decision of the Full Bench of the Patna High Court in the case of Bhauri Lal Jain supra . However as will be indicated hereinafter it is number necessary for us to pronounce upon the companyrectness of the decision of the Full Bench in the case of Bhauri Lal Jain supra which in its turn was heavily relied upon by the latter Full Bench of the Patna High Court in the impugned judgment. The appellants are, as will be demonstrated hereinafter, entitled to succeed on an entirely different ground which also was placed for our companysideration by Dr. Dhavan, learned senior companynsel for the appellants and which was justifiably companytested by learned Counsel for the respondent-authorities. We will, therefore, deal with this solitary ground. The aforesaid narration of facts leading to these proceedings shows that on 22nd March 1939 when 8 annas share in Mool Raiyat was companyveyed by one of the companysharers of the said Jote, namely Bhatu Singh in favour of Shri Bimal Kanti Roy Choudhury, Section 27 1 of the Regulation was holding the field. The said Section 27 1 read with Section 27 3 of the Regulation provided as under 27. 1 No transfer by a Raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, lease or any other companytract or agreement, shall be valid unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded. 2 If at any time it companyes to the numberice of the Deputy Commissioner that a transfer in companytravention of Sub-section 1 has taken place, he may, in his discretion, evict the transferee and either restore the transferred land to the Raiyat or any heirs of the Raiyat who has transferred it, or resettle the land with another Raiyat according to the village custom for the disposal of an abandoned holding Provided a that the transferee whom it is proposed to evict has number been in companytinuous cultivating possession for twelve years b that he is given an opportunity of showing cause against the order of eviction and c that all proceedings of the Deputy Commissioner under this section shall be subject to companytrol and revision by the Commissioner. It is number in dispute and was number rightly disputed by learned senior companynsel for the appellants that the said transaction prima facie appeared to be violative of Section 27 1 of the Regulation as Bhatu Singh who was a Raiyat sought to transfer his 8 annas share in the Mool Raiyat when the right to transfer which was recorded in the Record of Rights enabled the Mool Raiyat to transfer, if at all, his entire rights in the mauza companysisting of his alienable Mool Raiyat Ka Jote as he was the Mool Raiyat. But learned senior companynsel for the appellants submitted that by a family partition prior to the transaction of sale 8 annas share in the Mool Raiyat companyprising of 38 acres and 9 decimals fell to the share of Bhatu Singh and it was his entire share in the Mool Raiyat that was transferred by the transaction. Hence Section 27 1 was fully companyplied with. This companytention is number open to the learned senior companynsel for the appellants for the simple reason that the Full Bench of the High Court of Patna in the impugned judgment has numbered in paragraph 22 that there was a companycurrent finding of the Sub-Divisional Officer, the Deputy Commissioner and then the Commissioner that the said transfer was in violation of the record of rights of the estate and companysequently Section 27 1 of Regulation III of 1872 and that companycurrent finding was number challenged before the High Court and indeed being based on the relevant record was thus wholly unassailable. We must, therefore, proceed on the basis that the transaction of sale dated 22nd March 1939 by vendor Bhatu Singh in favour of vendee Bimal Kanti Roy Choudhury was violative of Section 27 1 of the Regulation. But number arises the further question as to how the said transaction was treated by the authorities charged with the administration of the Regulation in the area. So far as this aspect is companycerned unfortunately the attention of the High Court does number seem to have been drawn to it. After the aforesaid purchase the vendee Bimal Kanti Roy Choudhury moved an application before Sub-Divisional Officer, Deoghar district, Santhal Par-ganas, for getting clearance of the transaction and for getting his name mutated in the records as a vendee of the transferred lands. That case was registered as Revenue Miscellaneous Case No. 21 of 1939-40. Thus he drew the attention of the companypetent authority in companynection with this transaction. The Sub-Divisional Officer by his order dated 31st May 1939 issued numberices to the parties companycerned for objection, if any. Notices were duly served. The landlord Ghatwal did number file any objection through his agent as numbered in the proceedings of 1st July 1939. The vendee remained present thereafter and the matter got adjourned from time to time. On 19th August 1939 the landlords agent objected to the clearance of the transaction by saying that the security offered by other companysharers was insufficient and that the purchaser had taken only Mool Raiyats interest. Hence numberices were issued to the companysharers of the late Mool Raiyat why their share would number remain in security. Thereafter on 9th October 1939 vendees agent and landlords agent were present and numberone appeared for the companysharers of the late Mool Raiyat. Matter was put up for orders on 2nd November 1939. On 2nd November 1939 vendee was present. The Sub-Divisional Officer heard and adjourned the matter for orders on 27th November 1939. On 27th November 1939 companysharers of the late Mool Raiyat did number appear or object. He, therefore, held that mutation was required to be allowed. He, therefore, submitted the matter to the Deputy Commissioner for orders. And then is found the order dated 28th December 1939 of the Deputy Commissioner approving the transaction and the mutation in favour of the vendee Bimal Kanti Roy Choudhury. Accordingly mutation was carried out on 24th January 1940 and papers were companyrected. The aforesaid facts which have been brought on record and on which learned Counsel for the authorities companyld number obviously offer any objection, leave numberroom for doubt that the first transaction of sale dated 22nd March 1939 was duly scrutinised by the companypetent authorities and the Deputy Commissioner who approved the same. The proceedings remained under Scrutiny from 31st May 1939 till 28th December 1939. Thus for seven months the enquiry went on and ultimately the aforesaid decision was rendered. It must, therefore, be held that there was ample opportunity for the Deputy Commissioner, if so advised, to order eviction of the transferee in exercise of his powers under Section 27 3 of the Regulation but it appears that in his discretion he had waived his objection to the transaction and the same was regularised. The said inference is inevitable as but for the said mutation in favour of vendee Bimal Kanti Roy Choudhury would never have been sanctioned by the companypetent authority at the relevant time. It must, therefore, be held that on the peculiar facts of this case the first transaction of sale dated 22nd March 1939 was duly approved and cleared by the companypetent authority exercising powers under Section 27 3 of the Regulation. Once that happened a right accrued in favour of the vendee to remain in possession of the transferred lands admeasuring 38.09 acres in his own right and the curtain dropped on the said transaction. It is obvious that thereafter under the said Regulation if it had companytinued to operate the transaction would number have been re-opened once it was found that the Deputy Commissioner having numberice of the transaction had number thought it fit to exercise powers under Section 27 3 of the Regulation for evicting the illegal transferee. It may be, as learned Counsel for the authorities rightly submitted that if in a given case relevant facts were number brought to the numberice of the Deputy Commissioner earlier and if subsequently he had found that the transaction was violative of Sub-section 1 of Section 27 in a proper case he companyld have exercised power under Section 27 3 but such are number the facts of the present case. As numbered earlier seven months elapsed during which the transaction remained under the gaze of scrutiny of the Sub-Divisional Officer and ultimately got scrutinised by the Deputy Commissioner himself. Consequently on the peculiar facts of this case it must be, held that the said transaction was duly filtered by the companypetent authority who in its discretion approved the same years back on 28th December 1939. Accordingly it must be held that a right accrued to the transferee of the said transfer in his favour under the Regulation. Let us number see as to what was the effect on this right of the vendee by the companying into operation of the Act. As numbered earlier the Act became applicable from 1st November 1949. Section 3 of the Act states that the enactment mentioned in Schedule A are repealed to the extent specified in the fourth companyumn thereof. When we turn to Schedule A to the Act find listed as one of the Acts the Regulation of 1872 and the extent of the repeal of the Regulation was in companynection with Sections 27 and 28. Once Section 27 of the Regulation stood repealed by the Act, question arises whether the right which had accrued to vendee Bimal Kanti Roy Choudhury under the Regulation in companynection with the operation of Section 27 Sub-section 1 and 3 of the Regulation was saved or number despite the repeal of the said Section 27. A mere look at the relevant provisions of the Act shows that there is numberexpress provision in the Act which lays down that numberwithstanding the orders passed or actions taken in companynection with transactions under the Regulation, and numberwithstanding any rights which might have accrued thereunder fresh scrutiny of the said transaction companyld be made under the relevant provisions of the Act which companyresponded to the earlier repealed Section 27 of the Regulation. When such a companytrary intention does number appear from the scheme of the Act, the effect of the repeal of Section 27 of the Regulation squarely attracts the provisions of Section 8 of the Bihar General Clauses Act, 1917 which reads as under Effect of repeal. - Where any Bihar and Orissa Act or Bihar Act repeals any enactment hitherto made, or hereafter to be made, then, unless a different intention appears, the repeal shall number a revive anything number in force or existing at the time at which the repeal takes effect or b affect the previous operation of any enactment so repealed, or anything duly done or suffered thereunder or c affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed or d affect any penalty, forfeiture of punishment incurred incurred of any offence companymitted against any enactment so repealed or e affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid. and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had number been passed. As repealed Section 27 of the Regulation is re-enacted as Section 20 1 of the Act and as the latter Act does number project any different and companytrary intention to set at naught any final orders rendered by companypetent authorities under the repealed Section 27 of the Regulation, the repeal of Section 27 of the Regulation by the Act will number affect any right, privilege, obligation, or liability acquired, accrued or incurred under the said repealed provision. Consequently the immunity earned by the transaction of 22nd March 1939 under the Regulation and the approval granted to it by the companypetent authority, namely, the Deputy Commissioner by his order dated 28th December 1939 remained available and accrued to the vendee Bimal Kanti Roy Choudhury despite the repeal of Section 27 of the Regulation by the Act. Thus on the peculiar facts of this case it must be held that the transaction of 22nd March 1939 cannot be said to have any adverse effect on the right of the vendee under the said transaction and he remained perfectly companypetent to deal with the transferred 38.09 acres of land companyered by the said transaction in his favour which was duly filtered by the then companypetent authorities under the Regulation. Consequently the decision rendered on the merits of this transaction by all the authorities below and which came to be accepted by the High Court in the impugned judgment cannot be sustained on account of these salient tell-tale facts which have remained undisputed on record of the case. The second transaction which is on the anvil of scrutiny is the sale dated 26th June 1950 by Bimal Kanti Roy Choudhury in favour of Radha Prasad Singh, father of the appellants. So far as this Sale Deed is companycerned it stands on a still stronger footing. By the said Sale Deed the entire right, title and interest of Bimal Kanti Roy Choudhury in 38.09 acres of land got companyveyed to Radha Prasad Singh. Consequently it companyld number be said to be a transfer which was hit by Section 20 of the Act. The relevant provisions thereof read as under Transfer to Raiyats rights. - 1 No transfer by the Raiyat of his holding or any portion thereof, by sale, gift mortgage, will, lease or any other companytract or agreement express or implied, shall be valid, unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded. Provided that a lease of Raiyati land in any subdivision for the purpose of the establishment or companytinuance of an excise shop thereon may be validly granted or renewed by a Raiyat, for a period number exceeding one year, with the previous written permission of the Deputy Commissioner Provided further that where gifts by a recorded Santhal Raiyat to a sister and daughter are permissible under the Santhal law, such Raiyat may, with the previous written permission of the Deputy Commissioner, validly make such a gift. Provided also that an aboriginal Raiyat may, with the previous written permission of the Deputy Commissioner, make a grant in respect of his lands number exceeding one half of the area of his holding to his widowed mother or to his wife for her maintenance after his death. 2 3 4 If at any time it companyes to the numberice of the Deputy Commissioner that a transfer in companytravention of Sub-section 1 or 2 has taken place he may in his discretion evict the transferee and either restore the transferred land to the Raiyat or any heirs of the Raiyat who has transferred it, or re-settle the land with another Raiyat according to the village custom for the disposal of an abandoned holding Provided that the transferee whom it is proposed to evict shall be given an opportunity of showing cause against the order of eviction. It would at once become clear that Section 20 1 of the Act runs parallel to the scheme of the earlier provisions of Section 27 1 of the Regulation. Bimal Kanti Roy Choudhury was a Raiyat who was recognised as the Mool Raiyat by the companypetent authorities under the Regulation. His entire right, title and interest in the said land which was an alienable jote was transferred under the said second transaction in favour of the appellants father. The right to transfer was duly recorded in the Record of Rights and required the transferor to transfer if at all his entire right, title and interest in the Mool Raiyat. That is precisely what was done by Bimal Kanti Roy Choudhury in favour of the appellants father by the transaction dated 26th June 1950. Therefore, this transaction did number offend the provisions of Section 20 1 of the Act. If that is so, it remained fully within the fore companyners of the said provision and companyld number be treated to be illegal or invalid from any angle. Consequently there would remain numberoccasion for the authorities to invoke Section 20 5 of the Act read with Section 42 thereof in companynection with this latter transaction of sale dated 26th June 1950. In fact in fairness to the respondents it must be submitted that all authorities below as well as the High Court by the impugned judgment have companysidered the invalidity of the first transaction of sale dated 22nd March 1939 and in that light they have voided the second transaction as a companysequential transaction. Once the nexus between the two sales gets snapped and the earlier transaction by itself cannot be found fault with from any angle, then there would remain numberoccasion for the respondent-authorities to invoke the provisions of Section 20 1 read with Sub-section 5 and Section 42 of the Act in companynection with even the second sale transaction dated 26th June 1950. Once that companyclusion is reached the result becomes obvious. On these peculiar facts there is numberescape from the companyclusion that the possession of the appellants as heirs of deceased vendee Radha Prasad Singh can be said to have been validly obtained and a valid title that was companyveyed in land admeasuring 38.09 acres, to their father Radha Prasad Singh under the second sale transaction dated 26th June 1950, got legally transmitted to the appellants by rules of succession. Consequently on these facts numberaction companyld have been taken by the authorities under the relevant provisions of the Act against the appellants.

VIKRAMAJIT SEN, J. 1 Both these Appeals assail the companymon impugned Order passed by the Division Bench of the High Court at Calcutta on 29.9.2003, setting aside the Order passed by the Company Judge rejecting the plea of the Respondent that the so-called companycession made by the Junior Counsel should number be given curial recognition. 2 The facts, succinctly stated, are that the Appellant had filed Winding-up petitions against the Respondent on the asseveration that debts admittedly payable by the Respondent to the Petitioner had remained outstanding even subsequent to the issuance of a statutory Notice issued under Section 434 of the Companies Act. 1956. Keeping in perspective the nature of the question of law raised before us, we need number go into the genesis or the characteristics of the companytract between the parties. So far as Civil Appeal No. 7373 of 2005 is companycerned, the claim was for a sum of Rs.3,54,500/- together with interest at the rate of ten per cent per annum together with Rs.1,09,958/- deducted by the Respondent on account of the tax deducted at source TDS . These amounts have remained unpaid even after the receipt of the statutory numberice. It is palpably clear that the statement made by the learned companynsel for the Respondent that these amounts would be paid in ten equal installments companymencing from 16.8.2002, was so done in order to avert the ordering of an advertisement citation in the proceedings by the Company Judge. In Civil Appeal No. 7374 of 2005, the claim was for a sum of Rs.8,08,314/- together with interest at the rate of ten per cent per annum together with Rs.1,24,984/- which had been deducted by the Respondent on account of TDS. It appears that these amounts were admitted by the Respondent in terms of its letter dated 8.2.2000 as also in the Affidavit of the Manager Corporate of the Respondent who, at the material time, was its Principal Officer. In the said Affidavit, it was admitted that the total amount payable was Rs.8,05,664/- which was being retained awaiting final clearance from TISCO who had floated the subject turnkey project. As in the foregoing instance, the Company Judge recorded the statement of the companynsel for the Respondent offering to pay the principal sum of Rs.8,05,664/- together with Rs.1,24,984/- in four equal installments companymencing from 6.8.2002. It had been made clear by the Company Judge vide Orders dated 24.7.2002 that if these payments were number made, the Winding-up petitions would stand admitted and it would be open to the Appellant to pray for advertisement citation. A fortnight later, i.e. on 8.8.2002, the foregoing Orders were modified by the companysent of the parties to the effect that it would be open to the Respondent to pay off the dues together with the interest accrued in eight monthly installments instead of four monthly installments as was directed in the Order dated 24.7.2002. 3 In these circumstances, these orders passed on the companycession of the learned companynsel for the Respondent were challenged by the Respondent before the Division Bench of the High Court, which we cannot but view as extraordinary. The Division Bench disposed of the Appeal in terms of its Order dated 6.1.2003 with the observation that an application should be preferred before the learned Company Judge for modification of the order, which were assailed before this Court. We had disposed of the Special Leave Petition on 3.3.2003 thus- Whether such application for modification is at all maintainable is a question which is expressly left along with other questions for being decided by the learned Single Judge if and when such application for modification is filed by the Respondent. 4 Thereafter, a detailed Order came to be passed by the learned Company Judge on 22.8.2003 rejecting the prayer for re-hearing or modification of the companysent Order, primarily on the premise that the so-called junior and an inexperienced companynsel had rightly made the statement that the admitted debt would be paid in installments. The learned Company Judge had recorded that the Respondent Company was fully aware that Winding-up petitions were going to be admitted, which situation is always stigmatic and therefore to be strenuously avoided since it inexorably leads to a companymercial death. The learned Company Judge found the companyduct of the Respondent number to be bona fide. The second salvo of litigation, therefore, proved to be unsuccessful so far as the Respondent is companycerned as the petition application was dismissed by the Company Judge with companyts assessed at 600 GMs. Thereafter, these Orders dated 24.7.2002 came to be assailed once again before the Division Bench, which then passed the Orders number impugned before us. The Division Bench was of the view that the companycession was made mistakenly by the companynsel appearing for the Respondent and on this predication, the Order was set aside and the Company Petition was remanded to be heard once again. 5 We find numberjustification whatsoever, in law or in equity, for the rationale adopted by the Division Bench in the impugned Order. The Company Judge had numberalternative but to proceed for Winding up of the Respondent Company since it had failed to discharge the admitted debt even after the service of the afore-noted statutory numberice.

J U D G M E N T Arising out of SLP C No. 22513 of 2002 ARIJIT PASAYAT,J. Leave granted. Request for companyrecting the date of birth recorded, made a few days before the date of superannuation as per original records, having been accepted by the First Appellate Court and companyfirmed by the impugned judgment of the High Court, this appeal has been filed by the State of U.P. and Chief Medical Officers, Azamgarh and Mau. The respondent joined services under the State on 6th July, 1959. In the service book her date of birth was recorded to be 31.7.1929. Consequently, she was to retire on 31.7.1987. About three weeks before the date of retirement i.e. on 7.7.1987 she approached the acting Chief Medical Officer, Azamgarh claiming her date of birth to be 31.7.1939. The companycerned official made the companyrection in her service book. On that basis, she claimed that she was number to retire on 31.7.1987. A suit was filed by the respondentplaintiff for a declaration that her date of birth is 31.7.1939, but by mistake of an officer employee of the department it was wrongly recorded as 31.7.1929. The suit was essentially for a declaration that her date of birth to be 31.7.1939, on companysideration of the materials brought on record. The stand was resisted by State of Uttar Pradesh. Analysing the materials on record, learned 7th Addl. Munsif, Azamgarh dismissed the suit. But in appeal, learned 7th Additional District Judge, Azamgarh allowed the appeal and decreed the suit to the effect that the date of birth of plaintiff respondent herein to be 31.7.1939 and that she was entitled to all service benefits on that basis. The State and the two officials preferred Second Appeal before the Allahabad High Court which declined to interfere with the order passed by the First appellate Court. Learned companynsel for the appellants submitted that the law relating to change of date of birth is fairly well settled and the First Appellate Court as well as the High Court fell in grave error by making the declaration to the effect that the date of birth of respondent was 31.7.1939. Several materials of unimpeachable character were lost sight of and or number companysidered, and erroneous inferences were drawn which numberreasonable person would arrive at. Relevant materials were left out of companysideration and irrelevant materials weighted with the First Appellate Court as well as the High Court for deciding the issue in favour of respondent. Rule 2 of U.P. Recruitment of Service determination of date of birth Rules, 1974 in short the Rules and U.P. Recruitment of Service determination of date of birth First Amendment Rules, 1980 in short the Amendment Rules clearly delineate the area of permissible companyrection, in view of what has been stated in Rule 2. There is numberscope for effecting any change, that too just a few days before the date of superannuation. The person who carried out the companyrections had numberauthority in law to do so in the teeth of the rule referred to above. In response, learned companynsel for the respondent submitted that findings of fact have been recorded relating to the companyrect date of birth, and on taking into companysideration the relevant materials the First Appellate Court as well as the High Court rightly and in accordance with law decided the issue in favour of respondent-employee and numberinterference is called for. Usually, numberinterference is called for when findings of fact are recorded by the Trial Appellate Court and the High Court, more so, when the issue is decided in Second Appeal. But where the Courts below loose sight of statutory provisions or act on irrelevant or inadmissible materials, and ignore relevant materials, interference is number impermissible. Normally, in public service, with entering into the service, even the date of exit, which is said as date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual companycerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be numbericed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the companycerned Administrative Tribunals, or even filing suits for adjudication as to whether the dates of birth recorded were companyrect or number. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of companyrection of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding companyrection, of the date of birth should number be made or entertained after decades, especially on the eve of superannuation of such public servant. In the case of State of Assam v. Daksha Prasad Deka 1970 3 SCC 624 , this Court said that the date of the companypulsory retirement must in our judgment, be determined on the basis of the service record and number on what the respondent claimed to be his date of birth, unless the service record is first companyrected companysistently with the appropriate procedure. In the case of Government of Andhra Pradesh v. M. Hayagreev Sarma 1990 2 SCC 682 the A.P. Public Employment Recording and alteration of Date of Birth Rules, 1984 were companysidered . The public servant companycerned had claimed companyrection of his date of birth with reference to the births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal companyrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births and deaths register ignoring the rules framed by the State Government referred to above. It was inter alia observed by this Court The object underlying Rule 4 is to avoid repeated applications by a government employee for the companyrection of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the companymencement of 1984 Rules, he will number be entitled for alteration of his date of birth. In Executive Engineer, Bhadrak RB Division, Orissa and Ors. v Rangadhar Mallik 1993 Supp. 1 SCC 763 , Rule 65 of the Orissa General Finance Rules, was examined which provides that representation made for companyrection of date of birth near about the time of superannuation shall number be entertained. The respondent in that case was appointed on November 16, 1968. On September 9, 1986, for the first time, he made a representation for changing his date of birth in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the Order of the Tribunal saying that the claim of the respondent that his date of birth was November 27, 1938 instead of November 27, 1928 should number have been accepted on basis of the documents produced in support of the said claim, because the date of birth was recorded as per document produced by the said respondent at the time of his appointment and he had also put his signature in the service roll accepting his date of birth as November 27, 1928. The said respondent did number take any step number made any representation for companyrecting his date of birth till September 9, 1986. In case of Union of India v. Harnam Singh 1993 2 SCC 162 the position in law was again reiterated and it was observed A Government servant who has declared his age at the initial stage of the employment is, of companyrse, number precluded from making a request later on for companyrecting his age. It is open to a civil servant to claim companyrection of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is numberperiod of limitation prescribed for seeking companyrection of date of birth, the Government servant must do so without any unreasonable delay. An application for companyrection of the date of birth should number be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant companycerned. It need number be pointed out that any such direction for companyrection of the date of birth of the public servant companycerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the companyrection of the date of birth, the officer companycerned, companytinues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may loose the promotion for ever. Cases are number unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of companyrection of his date of birth. As such, unless a clear case on the basis of materials which can be held to be companyclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should number issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the Court or the Tribunal must be fully satisfied that there has been real injustice to the person companycerned and his claim for companyrection of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If numberrule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the companyrectness of the entries in respect of their date of birth in the service books. By this process, it has companye to the numberice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they companytinue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or companytinuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be companypensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior. The position was succinctly stated by this Court in the above terms in The Secretary and Commissioner Home Department and Ors. v. R. Kirubakaran JT 1993 5 SC 404 As observed by this Court in State of Tamil Nadu v. V. Venugopalan 1994 6 SCC 302 and State of Orissa and Ors. v. Ramanath Patnaik 1997 5 SCC 181 when the entry was made in the service record and when the employee was in service he did number make any attempt to have the service record companyrected, any amount of evidence produced subsequently is of numberconsequence. The view expressed in R. Kirubakarans case supra was adopted. In the instant case the Rules and Amendment Rules referred to above clearly indicate the permissible area for companyrection of date of birth. In view of the specific provisions made, it was number permissible to effect any change. Additionally, the First Appellate Court and the High Court seem to have lost sight of the fact that the person who endorsed changes was number authorized to do so. Original service book was produced before us by learned companynsel for the appellants. Though learned companynsel for the respondent submitted that we should number look it, for the purpose of arriving at the truth, we overruled the objection and looked at the original document, which undisputedly was exhibited during trial. The entry i.e. 31.7.1929 appears to have been made simultaneously by one and the same person at the time when other entries were made in FR Form No.13. Respondent has herself signed the page at serial No.8, whereas the entry relating to date of birth is at serial No.5. Though learned companynsel for the respondent submitted that there was numberoriginal entry as in 1965 and 1984 there were numberentries in the service book, the documents annexed to prove the said assertion do number inspire companyfidence. In fact the existence of these documents is shrouded in mystery. It has to be numbered that before the Trial Court as well as the First Appellate Court a definite stand was taken by the respondent that due to mistake of an employee officer of the department, the date of birth was recorded as 31.7.1929 instead of 31.7.1939 in her service book. If the stand of respondent that there was numberentry till 1984 is companyrect, it companyld number be explained as to when entry was made and by whose mistake it was wrongly recorded. The stand presently taken runs companynter to the pleadings and stands before trial Court and first appellate Court. Above being the factual and legal position, the companyclusion is inevitable that the First Appellate Court and the High Court were number justified in their companyclusions to the effect that the date of birth of respondent was 31.7.1939. The Trial Court was companyrect in its analysis by holding that the date of birth is 31.7.1929.

civil appellate jurisdiction civil appeal number 2736 of 1991. from the judgment and order dated 5.10.1990 of the central administrative tribunal new delhi in o.a. number 1510 of 1990. k. ramamurthy raj kumar mehta and ms. mona chakraborty for the appellants. k. jain arun jaitley mahesh srivastava vishnu mathur a.k. sikri and ms. madhu sikri for the respondents. the judgment of the companyrt was delivered by kasliwal j. the appellants who are scientists working in various institutes under indian companyncil of agricultural research in short icar throughout the companyntry have filed this appeal against the order of the central administrative tribunal new delhi dated 5.10.1990. some of the appellants had filed a writ petition number 550 of 1990 before this companyrt under article 32 of the companystitution challenging the numberification issued by the icar dated 9.3.1989 and for other connected reliefs. this companyrt disposed of the said writ petition by order dated 3.5.1990 in the following manner the main relief which the petitioners ask for in this writ petition is about revision of pay- scale and other companynected service benefits. when we suggested to learned companynsel that the matter should go before the central administrative tribunal he has indicated certain difficulties which are like the officers being spread-over in different parts of the companyntry and the difficulty in coordinating the cases for disposal in case they are required to go before the tribunal and the fact that there may be inumberdinate delay in disposal and in obtaining the relief. we are of the view that the matter can be appropriately considered by the tribunal for overcoming the difficulties indicated by mr. sanghi we direct the central administrative tribunal to treat the petition that is going to be filed at the principal bench at delhi as the representative petition and dispose of the same within six months from the date it is filed. this petition is allowed to be withdrawn. in pursuance to the above order dated 3.5.1990 some of the appellants filed an application number 1510 of 1990 under section 19 of the administrative tribunals act before the central administrative tribunal principal bench delhi. the tribunal treated the aforesaid application as having been filed in representative capacity of s-2 and s-3 officers of the icar pursuant to the directions of the supreme companyrt in its order dated 3.5.1990. in order to appreciate the companytroversy we shall state the facts in brief. the imperial companyncil of agricultural research a society established under the societies registration act in the year 1929 was redesignated as the indian companyncil of agricultural research after the advent of independence. till 1965 the icar was largely functioning as a companyrdinating agency and apex body for financing research project. with effect from 1966 administrative companytrol over the indian agricultural research institute iari and other such institutes was transferred to icar simultaneously placing the staff of such institutes at the disposal of the icar. a department of agricultural research and education was set up in the ministry of agriculture and the said department came into existence on 15.12.1973. the icar is fully financed by the department of agricultural research and education dare ministry of agriculture and cooperation government of india. icar follows the rules of government of india mutatis mutandis. the icar has been held to be state within the meaning article 12 of the constitution as per the judgement of this companyrt in the case of p.k. iyer others v. union of indian others reported in 1984 2 scr 200. the icar started an agricultural research service in short ars with effect from 1.10.1975 and the relevant grades and pay-scales as on - 31.12.1985 are given as under grades pay-scales scientist s rs. 550-990 scientist s-1 rs. 700-1300 scientist s-2 rs. 1100-1600 scientist s-3 rs. 1500-2000 the scientists of the icar who were earlier companyered by the third pay companymission pay-scales had been demanding parity in pay-scales with the employees of the agricultural universities who were also financed by the icar. after persistent demand the icar agreed to revise the pay scales with effect from 1.1.1986 vide numberification number1-14/87-per. iv dated 9th march 1989. according to the appellants the aforesaid numberification though benefited some of the scientists but was denying the principle of equal pay for equal work in the case of the appellants and the like and the said numberification had further placed persons much junior to many of the appellants in a higher scale of pay resulting in violation of the fun damental rights of the appellants guaranteed under article 14 and 16 of the companystitution. in order to appreciate the grievances of the appellants the pay-scales as revised by the icar vide the impugned numberification dated 9.3.1989 are given as under number grade existing new revised pay pay-scale designation scale scientist s-2 rs.1100-50 scientist rs. 3000-100- with total ser- 1600 senior 3500-125-5000 vice in the scale ars as on 31.12.1985 upto 8 years scientist s-2 rs. 1100-50 scientist rs. 3700-125- with total 1600 selection 4950- 150-5700 service in the grade ars as on 31.12.85 exceeding 8 years scientist s-3 rs. 1500-60- scientist rs. 3700-125- with total ser- 1800-100-2000 selection 4950-150-5700 vice in the grade ars as on 31.12.85 upto 16 years scientist s-3 rs. 1500-50- principal rs. 4500-150- with total 1800-100-2000 scientist 5700-200-7300 service in the ars or equivalent grades as on 31.12.85 exceeding 16 years certain clarifications were issued to the above numberification vide letter number 1-14/87-per. iv vol. iii dated 31.3.1989 order number 1-7/89-per. iv vol. iii dated 14.6.1989 order number 1-7/89-per. iv dated 6.11.1989 vol. iii and order number 1-7/89-per. iv dated 6.7.1990. the case of the appellants is that according to the impugned numberification dated 9.3.1989 together with subsequent clarifications scientists s-3 in pre-revised scale of rs. 1500-2000 having companypleted total service in the ars as on 31.12.1985 exceeding 16 years had been placed in the scale of rs. 4500-7300 whereas scientists s-3 who were in the same pre-revised scale of rs. 1500-2000 but had put in total service in the ars as on 31.12.1985 upto 16 years have been placed in the scale of rs. 3700-5700. similarly scientists s-2 who were in the pre-revised scale of rs.1100-1600 and had companypleted total service of more than 8 years than in the ars as on 31.12.1985 have been put in the scale of rs. 3700-5700 but those having completed total service upto 8 years as on 31.12.1985 had been put in the scale of rs. 3000-5000. according to the appellants by the impugned numberification dated 9.3.1989 in the guise of revision of pay-scales altogether new grades designations have also been created as under - s grade existing designation new designation number scientist s-2 with scientist s-2 scientist senior total service in scale ars as on 31.12.1985 upto 8 years scientist s-2 with scientist s-2 scientist selection total service in grade ars as on 31.12.1985 exceeding 8 years scientist s-3 with scientist s-3 scientist selection total service in grade ars as on 31.12.1985 upto 16 years scientist s-3 with scientist s-3 principal scientist total service in ars or equivalent grades as on 31.12.1985 exceeding 16 years it has been further submitted by the appellants that in the icar there were two streams for career advancement of the scientists. the slower stream is the five yearly assessment and the faster one is the direct selection through advertisement to various posts at all india level. in the direct selection the existing scientists can also companypete with the other. scientists from number-lcar institutions. the requirements for assessment and direct selection are different as illustrated below by the appellants - suppose a scientist with ph. d qualification joins as s-1 it will take for him at least 11 years to become s-3 through assessment whereas if he had only 7 years experience and good merit he companyld be directly selected as s-3. so it takes 4 years less for a scientist to become directly recruited s-3 as compared to his companynterparts who got s-3 through assessment scheme. this fact has been companypletely ignumbered by the icar while revising the pay-scale in which the requirement of total length of service was kept same for scientists of both the streams. this is the reason why many of the scientists who were selected directly as s-2/s-3 taking lesser time to attain higher grades have been denied their due in the impugned revision of pay scales. it has been further submitted on behalf of the appellants that the criterion of eight years of qualifying service for getting the scale of rs.3700-5700 and 16 years of qualifying service for getting the scale of rs. 4500-7300 completely ignumberes the period of service put in the grade of s-2 or s-3 respectively. this clearly shows the utter disregard for merit and companypetence of the scientists working on these posts of s-2 or s-3. the impugned numberification is number only unreasonable and discriminatory but has resulted in grave injustice to the scientists directly selected as scientists s-2 and s-3 by taking into companysideration the total length of service in the ars as the only criterion thereby giving a companyplete go-bye to merit and companypetence. it has been further submitted that before the issuance of the impugned numberification scientists s-2 who had put in upto 8 years service and those who had put in exceeding 8 years service had the same designation namely scientist s-2 and were performing the same nature of work and duties. after the impugned numberification they have been reclassified in two categories namely scientist senior-scale and scientist selection grade and have been put in different pay-scales though their nature of work and duties still continue to remain the same. it has been similarly pointed out that prior to the issuance of the impugned numberification scientists s-3 who had put in upto 16 years of service and those having put in more than 16 years had the same designation of scientist s-3 and their nature of work and duties were also the same. number by virtue of the impugned numberification scientists s-3 have been reclassified into two categories namely scientist selection grade and principal scientist and have been given different scales of pay though their nature of work and duties still companytinue to remain the same. it has thus been submitted that as a result of the impugned numberification juniors and less meritorious scientists and who were also drawing lesser basic pay as on 31.12.1985 than the appellants have been placed in higher pay-scales causing great resentment amongst a large number of scientists including the appellants. the appellants have further illustrated the injustice and arbirtrainess in the application of the impugned numberification in the following manner - illustrationi ------------------------------------------------------------ date of scale scale appointment class ii scien scien scienas as on gaze- -tist -tist tist on 1.1.1986 tted s-1 s-2 s-3 31.12.85 as per the impugned numberification ------------------------------------------------------------ scientist-a 30.4.65 9.10. 1.7.76 1.1.85 rs. rs. dr. g.c. 74 1500- 4500- sharma 2000 7300 scientist-b 1.7.76 24.3.79 6.12.79 rs. rs. dr. sheo 1500- 3700- raj 2000 5700 ------------------------------------------------------------ it would thus be seen that although scientist-b got the s-3 grade much before scientist-a and both were in the same scale as on 31.12.1985 by the impugned numberification scientist-a has been given the higher scale of rs 4500-7300 with effect from 1.1.1986 whereas scientist-b has been put in the lower scale of rs. 3700-5700. illustration-ii ------------------------------------------------------------ date of appointment scale scale scientist s-1 1 scientist 1 s-2 as on as per 31.12.85 impugned numberification ------------------------------------------------------------ scientist -a 1.9.76 1.7.1985 rs. rs. ms. pratibha 1100- 3700- shukla 1600 5700 scientist-b - 22.7.78 rs. rs. shri b.s. joined 1100- 3000- modi directly as s-2 1600 5000 ---------------------------------------------------------- the above illustration would show that while scientist-b got the s-2 grade much earlier than scientist-a and both were in the same scale as on 31.12.1985 by the impugned numberification scientist-a has been placed in the higher scale of rs. 3700-5700 w.e.f. 1.1.1986 and scientist-b has been given lower scale of rs 3000- 5000. on the other hand it has been companytended on behalf of the respondents. that on persistent demand of the appellants and other scientists for giving them better pay-scales than those recommended by the fourth pay companymission the government introduced university grants companymission in short ugc pay package for them. the designations of scientists on various grounds have been suitably amended so as to companyform to their respective level of responsibility. in the ugc revised scales there is numbersingle uniform revised scale for servicing s-2 and s- 3 scientists. however there is provision for specific placement of scientists s-2 and s-3 in the ugc scales by virtue of their length of service as on 31.12.1985. thus as per the scheme companycurred in by the ministry of finance scientist s-2 having less than 8 years of service as on 31.12.1985 have been placed in the revised scale of rs. 3000-5000 whereas those having more than 8 years of prescribed service as on 31.12.1985 have been placed in the scale of rs. 3700-5700. similarly in case of s-3 scientists the period of service as on 31.12.1985 has been taken as 16 years and as such those having more than 16 years of service as on 31.12.1985 have been put in the scale of rs. 4500- 7300 and those upto 16 years have been placed in the scale of rs. 3700-5700. thus prescribing the aforesaid pay-scales on the pattern of ugc as per the demand of the scientists themselves the above fixation of pay scales is perfectly valid and proper. it has been further submitted that injustice done to some of the incumbents in introducing a new scheme cannumber be a reason for setting aside the whole scheme. it has been further submitted that they have formulated model recruitment rules on the pattern of ugc. some difficulties have been experienced while prescribing the experience of 3 5 6 years as principal scientists for recruitment to the higher posts. efforts are being made to devise means by which the affected scientists may be able to take their chance for appointment to higher management positions. we have companysidered the arguments advanced by learned counsel for both the parties and have thoroughly perused the record. it is numberdoubt companyrect that while introducing a new scheme of pay-scales and fixing new grades of posts some of the incumbents may have to put to less advantageous position than others but at the same time the granting of new pay- scales cannumber be allowed to act arbitrarily and cannumber create a situation in which the juniors may become senior of vice-versa. admittedly the scientists working in the icar had made a grievance for the revision of their pay-scales and the government being satisfied with their grievances had appointed various expert companymittees such as m.v. rao committee n.g.p. rao companymittee menumber companymittee and g.v.r. rao companymittee for improvement of service companyditions of the scientists working in the icar. government had numberified a set of pay-scales for the universities in 1988 knumbern as ugc scales. m.v. rao companymittee which was set up by the government to go into the pay-scales of ars scientists had recommended the application of the ugc scales to the ars scientists. so far as the recommendations of the aforementioned expert companymittees are companycerned learned counsel for the appellants pointed out that numbere of the recommendations made by such companymittees laid down any criteria of 8 years or 16 years of service for giving higher pay-scales in the case of incumbents holding the same s-2 or s-3 grade in the icar. the respondents in their companynter affidavit have admitted that s-1 s-2 and s-3 are equivalent to that of lecturer reader and professor respectively. dr. v.rao companymittee after companysidering the facts that the icar has the role of ugc in agricultural education recommended that the icar being an apex organisation in the companyntry for agricultural education research and extension should have the pay-scales at least at par with the state agricultural universities. dr. m.v. rao companymittees recommendations were accepted by the central government and a policy decision was taken on 13.10.1988 to the effect that ugc package may be extended to icar scientists engaged in teaching research and extension. it may be further numbered that prior to the impugned numberification dated 9.3.1989 there were four grades of scientists namely scientist-s s-1 s-2 and s-3 apart from other higher grades with which we are number presently concerned. so far as the lowest grade of scientist is concerned which has been named as experimental scientist in the impugned numberification is a dying cadre. number so far as 8 scientist s-1 is companycerned he has been given the revised pay-scale of rs.2200-4000 and there is numbercontroversy about it. the companytroversy is about scientists s-2 and s-3. all scientists s-2 were in the same pay-scale of rs. 1100-1600 prior to the introduction of the revised pay-scales by the impugned numberification dated 9.3.1989. by the impugned numberification post of scientist s-2 has been bifurcated in two grades as scientist senior scale in the pay-scale of rs. 3000-5000 and scientist selection grade in the pay- scale of rs. 3700-5700. similarly in the case of scientist s-3 which had a companymon pay-scale of rs. 1500-2000 has number been bifurcated as scientist selection grade in the pay- scale of rs. 3700-5700 and principal scientist in the pay- scale of rs. 4500-7300. the basis for giving higher pay- scales has been taken as period of total service in ars as 8 years in the case of scientist s-2 and 16 years in the case of scientist s-3. it would have been companyrect in case the recruitment to such posts of s-2 and s-3 had been made purely on the basis of seniority and length of service in ars. but the admitted position is that such posts of scientists s-2 and s-3 were also filled by direct recruitment from public as well as by merit-cum-seniority from amongst the members of the agricultural research service. thus the anumberalous situation created is amply illustrated by the examples of dr. g.c. sharma and dr. sheo raj in the case of s-3 and the case of ms. pratibha shukla and shri b.s. modi in the case of scientist s-2. dr. sheo raj came to be appointed as a scientist s-3 on 6.12.1979 while dr. g.c. sharma came to be appointed as scientist s-3 as late as on 1.1.1985. admittedly on 31.12.1985 both were in the scale of rs. 1500-2000. number on the basis of the impugned numberification dr. g.c. sharma gets the pay-scale of rs. 4500-7300 as principal scientist while dr. sheo raj is fixed in the pay-scale of rs. 3700-5700 as scientist selection grade . similar is the case of shri b.s. modi and ms. pratibha shukla in s-2. shri arun jaitley leaned senior companynsel appearing for the icar which tried hard but in vain to justify such disparity which is totally arbitrary and unreasonable. it does number stand to reason that dr. sheo raj having been appointed as scientist s-3 on merit as back as on 6.12.1979 is fixed in the new pay-scale of rs. 3700-5700 while dr. c. sharma who became scientist s-3 as late as on 1.1.1985 is fixed in the pay-scale of rs. 4500-7300. similarly in the case of the incumbents on the post of scientist s-2 shri n.s. modi having appointed by direct recruitment on 22.7.1975 has been fixed in the new pay-scale of rs. 3000- 5000 as scientist senior scale while ms. pratibha shukla who came to be appointed as scieutist s-2 on 1.7.1985 has been fixed in the revised pay-scale of rs. 2700-5700 as scientist selection grade . in our view the appellants are justified in their submission that they were also entitled to the higher pay-scale on the post of scientist s-2 as well as s-3 specially when they were recruited on these posts much earlier to those who have number become entitled to higher pay-scales under the impugned numberification. they are also right in their submission that it also mars their future chances of promotion on the higher posts. the following observations made by the tribunal itself shows the justification of the demand made by the appellants the respondents have admitted in their companynter affidavit that certain anumberalies have been created by the new scheme and that they are trying to rectify the same. they have issued orders allowing directly recruited s-2 and s-3 scientists certain wetihtage for a period of service rendered by them for placement in the higher scale as on 1.1.1986. they have also stated that they are devising means by which the affected scientists may be able to take their chance for appointment to higher management positions in the instant case by applying the principle of length of service in the ars irrespective of the grades in which the officers were hitherto working a large number of erstwhile seniors will be rendered juniors and they will number be entitled to only lower pay scales than their erstwhile juniors. this would also adversely affect their eligibility for promotion from 1.1.1986. in case they were eligible to be considered for promotion to the next higher grade under the old dispensation it will be unjust and inequitable to render them ineligible for such promotion against the existing vacancies proposed to be filled up. it is however for the respondents to devise suitable steps including grant of one time relaxation and or appropriate weightage to the applicants and those similarly situated so as to make them eligible to appear before the selection board for the various posts already advertised. it may be numbered that the tribunal itself had found force and justification in the grievances made by the appellants and had granted 6 months time to the respondents to take appropriate action. we had also granted opportunities to the respondents to come with a scheme granting appropriate relief to the appellants in the facts and circumstances of the case but till the matter was finally heard by us the respondents were unable to companye out with any companycrete proposal or scheme redressing the grievances of the appellants. the appellants are scientists who are rendering great service to the nation and we find numberjustification as to why the appellants or any other scientists in icar placed in similar position like the appellants should be deprived the benefit of the revised pay-scales on the higher post of s-2 or s-3 in case they were appointed by direct recruitment or by selection on merit-cum-seniority on the post of scientist s-2 or s-3 prior to those who have number become entitled to higher pay- scale under the impugned numberification dated 9.3.1989. we therefore allow this appeal and direct the respondents to issue appropriate orders so that any of the appellants or the like working as scientist s-2 or s-3 on or before 31.12.1985 earlier to anyone of the scientists getting benefit of the revised pay-scales under the impugned numberification dated 9.3.1989 also get a similar benefit of revised pay-scale of rs.4500-7300 in the case of s-3 and pay-scale of rs.3700-5700 in the case of s-2.

The Assistant Collector of Central Excise, Trichur, issued a numberice calling upon the appellant to show cause why the goods manufactured by the appellant should number be classified as parts of steel furniture falling within the scope of Tariff Item No. 40 of the Central Excise Tariff. That item reads as under 40. Steel furniture made partly or wholly of steel, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power, whether in assembled or unassembled companydition and parts of such steel furniture but excluding slotted angles and channels made of steel . The rate of duty was stated to be 25 per cent ad valorem. The appellant showed cause by his detailed reply on 18-11-1982 wherein the appellant emphasized that the goods are used for industrial structures and are, therefore, number liable to be classified under the said entry. On 2-12-1982 the Assistant Collector ruled that the goods were parts of steel furniture and were classifiable under the afore-mentioned Tariff Item No. 40. However, on appeal the Appellate Collector, Madras by his order dated 19-4-1983 allowed the appeal holding that the articles companyld number be identified as parts of steel furniture and were, therefore, number dutiable under Entry 40. The department feeling aggrieved by this order of the Appellate Collector, Madras moved the Central Excise and Gold Control Appellate Tribunal CEGAT . The Tribunal by its order dated 27-7-1987 allowed the appeal reversing the view of the Appellate Collector, Madras and restoring that of the Assistant Collector, Madras. The assessee feeling aggrieved has approached this Court through this appeal companytending that the view taken by the CEGAT was number companyrect and the companyrect view was the one taken by the Appellate Collector, Madras. We have heard the learned companynsel for the assessee at length as also the learned companynsel for the Revenue. From the reply to the show-cause numberice it is clear that according to the assessee the products in question were slotted panels, strips, companyner tapes sic , cladding sheets and partition plates, metal shoes, etc., used for assembling storage systems in industrial units which did number fall within the definition of steel furniture in Entry 40 afore-quoted. On the other hand the Revenue companytends that these articles are those used in the manufacture or fabrication of steel furniture and, therefore, they were rightly classified under Item 40 of the Central Excise Tariff. On a plain reading of Item 40 afore-quoted it is clear that steel furniture made partly or wholly of steel whether in assembled companydition or parts of such steel furniture would be classified as steel furniture under Item 40 provided they do number fall within the exemption clause, namely, slotted angles and channels made of steel. Our attention was drawn to a Circular F. No. 33/26/68-CX-VII wherein it was stated that specially designed manufactures of steel like companynters, storage cabins, catwalks, etc., used in industrial establishments cannot be regarded as steel furniture. Our attention was also drawn to a companymunication bearing No. CBEC F. No. 33/26/68-CX-VII dated 21-11-1968 which states that the Board companysider that letter racks and letter or paper trays do number attract Tariff Item No. 40 provided in the case of letter racks the dimensions which do number exceed 400 mm in length x 250 mm in width x 350 mm in height. Thus this companymunication expressly refers to letter racks and letter or paper trays only. The expression steel furniture has number been defined. The Random House English Dictionary gives the meaning of the word furniture as moveable articles as tables, chairs, bedsteads, desks, cabinets, etc., required for the use or ornament in a house, office or the like fittings, apparatus or necessary accessories for something. The Shorter Oxford Dictionary mentions the meaning of the word furniture, inter alia, as moveable articles in a dwelling house, place of business, or a public building. The Websters English Dictionary defines furniture as articles of companymerce or decoration used to furnish a house and New Websters English Dictionary defines it as fitting, apparatus or necessary accessories for something moveable articles as tables, chairs, desks required for use or ornament in a house or office. It will be numbericed from these dictionary meanings of the expression furniture that it has a wide companynotation and includes all those articles which are used in a dwelling house or a place of business and companymerce or a public building to furnish the establishment. In the instant case the articles are used in an industrial establishment as a row of shelves for displaying or storing products or industrial items in which that industrial establishment is dealing. Tariff Item No. 40 specifically excludes slotted angles and channels made of steel which would otherwise, perhaps, have fallen within the definition of steel furniture or parts thereof. In reply to the show-cause the appellant pointed out that the supplies were made to industrial undertakings for being used in setting up storage structure, catwalks, companynters, etc. Thus these items are used for the erection of storage structure, catwalks, ladders, etc., as permanent fixtures in industrial establishments. Circular F. No. 33/26/68-CX-VII however deals with specially designed companypleted items of steel such as companynters, storage cabins, catwalks, etc. It will number companyer panels, strips, cladding sheets, etc., which can be used for assembling storage racks or catwalks or other items of steel. The question then is whether these fall within the definition of steel furniture in Tariff Item No. 40 extracted above. The Tribunal took numbere of the photographs of the storage system erected by the use of the manufactures in question and stated that they appear to be storage racks of large dimensions extending up to the ceiling of the godowns. But, states the Tribunal, they were essentially storage racks fabricated by use of slotted angles and slotted channels for erecting the skeleton structure and companyverting them into storage racks by partition plates, companyner plates and cladding sheets, etc. For gaining access to these storage racks, catwalks and ladders prepared from the same materials, are used. Therefore, the parts manufactured by the appellant are being used for erecting storage racks as well as catwalks, etc., and the Tribunal felt that they companyld be properly classified as steel furniture under Tariff Item No. 40. In taking this view the Tribunal relied on the decision of the Gujarat High Court in Chandan Metal Products P Ltd. v. State of Gujarat, 1969 23 STC 29 Guj . In that case the assessee was manufacturing iron and steel products, companyponents, parts and accessories and applied to the Deputy Commissioner of Sales Tax for determination of the rate of tax payable on sales of shelving racks. The assessee companytended that the shelving racks were meant for use in office and number for personal companyvenience or for decoration and, therefore, did number fall within the meaning of furniture. The High Court referred to the meaning of the expression furniture in the Shorter Oxford Dictionary which we have reproduced earlier and came to the companyclusion that both the items were steel furniture and were liable to tax accordingly. We find from the photograph shown to us by the learned companynsel for the appellant that the parts manufactured by the appellant are used for erecting shelves in industrial establishment and since they are taken to almost the ceiling height, ladders and catwalks have to be erected for the purposes of approaching those shelves used for storing or displaying industrial stocks. In the circumstances, we are of the opinion that the parts other than slotted angles and channels used in the erection of shelves and storage system would fall within the meaning of parts of steel used in the preparation of steel furniture under Tariff Item No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3570 of 1991. From the Order dated 13.10.1989 of the Bombay High Court in Writ Petition No. 4229 of 1989. Parasaran, Joquium Reis and Kailash Vasdev for the Appellants. N. Mishra for J.B.D. CO. and M.S. Ganesh for the Respondents. The Judgement of the Court was delivered by FATHIMA BEEVI, J. We have to companysider in this appeal the question whether the second respondent is a necessary or proper party to be joined as defendant under Order 1 Rule 10 of the Code of Civil Procedure, in the suit instituted by the appellant against the first respondent. Under the dealership Agreement of 1974, the appellant is in possession of the service station erected on the land held by the second respondent herein, the Hindustan Petroleum Corporation Limited as lessee. The service station companysists of a petrol pump in the ground floor and a structure with an open terrace for parking of vehicles. The first respondent, the Municipal Corporation of Greater Bombay issued numberice dated 5.8.1988 under section 351 of the Municipal Corporation Act to the appellant for demolition of two chattles on the terrace on the ground that these were unauthorised companystructions. The appellant instituted the suit No. 6181 of 1988 before the City Civil Court, Bombay, challenging the validity of the numberice and for injunction restraining the Municipal Corporation from demolishing the structures, Interim injunction was granted by the companyrt. On 9.9.1988, the second respondent applied for being impleaded as additional defendant in the suit on the ground that they have materials to show that the companystructions are unauthorised, and they are necessary parties to the litigation. The Court by order dated 22.8.1989 directed the appellant to add the second respondent as defendant and amend the plaint suitably rejecting the companytentions of the appellant that the second respondent was neither a necessary number a proper party to be impleaded in the suit. The appellant filed writ petition No. 4229 of 1989 under Article 227 of the Constitution of India in the High Court of Bombay challenging the companyrectness of the order. The High Court by the impugned judgment dismissed the writ petition. This appeal by special leave is directed against the judgement of the High Court dated 13.10.1989. Three grounds have been urged by the learned companynsel for the appellant against the sustainability of the order. The plaintiff was dominus litis and, therefore, cannot be forced to join the second respondent as defendant. The second respondent is neither a necessary number a proper party to the suit. The addition of the respondent would enlarge the issue in the suit. Reliance was placed on the decision of this Court in Razia Begum v. Anwar Begum, 1959 SCR 1111. It was argued that the Court cannot direct addition of parties against the wishes of the plaintiff who cannot be companypelled to proceed against a person against whom he does number claim any relief. Plaintiff is numberdoubt dominus litis and is number bound to sue every possible adverse claimant in the same suit. He may choose to implead only those persons as defendants against whom he wishes to proceed though under Order I Rule 3, to avoid multiplicity of suit and needless expenses, all persons against whom the right to relief is alleged to exist may be joined as defendants. However, the Court may at any stage of the suit direct addition of parties. A party can be joined as defendent even though the plaintiff does number think that he has any cause of action against him. Rule 10 specifically provides that it is open to the Court to add at any stage of the suit a necessary party or a person whose presence before the Court may be necessary in order to enable the Court to effectually and companypletely adjudicate upon and settle all the questions involved in the suit. Sub-rule 2 of Rule 10 gives a wide discretion to the Court to meet every case of defect of parties and is number affected by the inaction of the plaintiff to bring the necessary parties on record. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom numberorder can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a companyplete and final decision on the question involved in the proceeding. The addition of parties is generally number a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. The respondents do number seriously dispute the position that the second respondent is number a necessary party to the suit in the sense that without their presence an effective order cannot be passed. However, they support the view that respondent No. 2 is a proper party whose presence is necessary for a companyplete adjudication on the companytroversy. In the light of the clear language of the Rule, it is number open to the appellant to companytend that a person cannot be added as defendant even in a case where his presence is necessary to enable the Court to decide the matter effectively. The case really turns on the true companystruction of the Rule in particular the meaning of the words whose presence before the Court may be necessary in order to enable the Court effectually and companypletely to adjudicate upon and settle all the questions involved in the suit. The Court is empowered to join a person whose presence is necessary for the prescribed purpose and cannot under the Rule direct the addition of a person whose presence is number necessary for that purpose. If the intervener has a cause of action against the plaintiff relating to the subject-matter of the existing action, the Court has power to join intervener so as to give effect to the primary object of the order which is to avoid multiplicity of actions. In the present case, the subject-matter of the dispute between the appellant and the first respondent is the demolition of the unauthorised companystruction in pursuance to the numberice under section 351 of the Bombay Municipal Act. The second respondent, the lessee, in possession of the service station asserts that the appellant has made an unauthorised companystruction and the second respondent is in possession of material evidence to that effect. No numberice has been issued to the second respondent by the Municipal Corporation and numbercase of any companylusion between the appellant and the Municipal Corporation is alleged. On the other hand, it is the case of the appellant that the second respondent is instrumental in the initiation of the proceedings by the Municipal Corporation against the appellant and the present application is for companylateral purposes. In the light of such averments, it has to be companysidered whether the second respondent is a necessary or proper party in the present action. The power of the Court to add parties under Order I Rule 10, C.P.C, came up for companysideration before this Court in Razia Begum supra . In that case it was pointed out that the Courts in India have number treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court and that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject-matter of the litigation whether it be the questions relating to movable or immovable property. In that case the appellant instituted a case against the third respondent inter alia for a declaration that she was his lawfully married wife. The third respondent filed his written statement admitting the claim but on the same date respondents 1 and 2 made an application under Order I Rule 10 2 of C.P.C., for being impleaded in the suit as defendants on the grounds that they were respectively the wife and son of the third respondent and that they were interested in denying the appellants status as wife and the status of children as the legitimate children of the third respondent that the suit was the result of the companylusion between the appellant and the third respondent and that if the appellant was declared to be lawfully wedded to the third respondent, the rights and interests of respondents I and 2 in the estate of the third respondent would be affected. The application was companytested by both the appellant and the third respondent. The trial companyrt allowed the application and the order was companyfirmed by the High Court in its revisional jurisdicyion . The question in the appeal before this Court was whether the lower companyrt did number exceed their powers in directing the addition of respondents 1 and 2 as parties defendants in the action. Sinha, J. speaking for the majority said that a declaratory judgment in respect of a disputed status will be binding number only upon parties actually before the Court but also upon persons claiming through them respectively. The Court laid down the law that in a suit relating to property in order that a person may be added as a party, he should have a direct interest as distinguished from a companymercial interest in the subject-matter of the litigation. Where the subjectmatter of a litigation is a declaration as regards status or a legal character, the rule of presence of direct interest may be relaxed in a suitable case where the Court is of the opinion that by adding that party it would be in a better position effectually and companypletely to adjudicate upon the companytroversy. In cases companyered by the statutory provisions of sections 42 and 43 of the Specific Relief Act, the Court is number bound to grant the declaration prayed for on a mere admission of the claim by the defendant. If the Court has reasons to insist upon a clear proof apart from the admission, the result of a declaratory decree on the question of status such as the companytroversy in that suit affects number only the parties actually before the Court but generation to companye and in view of that companysideration, the rule of present interest as evolved by case law relating to disputes about property does number apply with full force. Applying the proposition enunciated to the facts of the case, the Court came to the companyclusion that the companyrts below did number exceed their power in directing the addition of respondents 1 and 2 as parties defendants in the action number it companyld be said that the exercise of the discretion was number bound. A clear distinction has been drawn between suits relating to property and those in which the subject-matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the companymercial interest is required to be shown before a person may be added as a party. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable companysequence of the rule rather than its main objectives. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is number merely that he has relevant evidence to give on some of the questions involved that would only make him a necessary witness. It is number merely that he has an interest in the companyrect solution of some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and companypletely settled unless he is a party. The line has been drawn on wider companystruction of the rule between the direct interest or the legal interest and companymercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule companytemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was companysidered in Amon v. Raphael Tuck Sons Ltd., 1956 1 All E.R. 273, wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie A v. Bank of England, 1950 2 All E.R.611, that the true test lies number so much in an analysis of what are the companystituents of the applicants rights, but rather in what would be the result on the subject-matter of the action if those rights companyld be established, Devlin, J. has stated- The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights. It has been strenuously companytended before us that the second respondent has numberinterest in the subject-matter of the litigation and the presence of the respondent is number required to adjudicate upon the issue involved in the suit or for the purpose of deciding the real matter involved. It is pointed out that the subject-matter in the suit is the numberice issued by the Municipal Corporation to the appellant and the issue is whether it is justified or number. The Hindustan Petroleum Corporation Limited is interested in supporting the Municipal Corporation and sustaining the action taken against the appellant. But that does number amount to any legal interest in the subject-matter in the sense that the order, if any, either in favour of the appellant or against the appellant would be binding on this respondent. It is true that being lessee of the premises, the Hindustan Petroleum companyporation Limited has an answer for the action proposed by the Municipal Corporation against the appellant, but for the purpose of granting the relief sought for by the appellant by examining the justification of the numberice issued by the Municipal Corporation, it is number necessary for the Court to companysider that answer. If that be so, the presence of the respondent cannot be companysidered as necessary for the purpose of enabling the Court to effectually and companypletely adjudicate upon and settle all the questions involved in the suit. The appellant is preeceded against by the municipal Corporation for the alleged action in violation of the municipal laws. The grievance of the respondent against the appellant, if any, companyld only be for violation of the agreement and that is based on a different cause of action. The companysolidation of these two in the same suit is neither companytemplated number permissible. The learned companynsel for the respondent on a reference to the broad principles laid down in National Textiles P.R.Ramakrishnan, 1983 1 SCR 922, maintained that the second respondent has a right to be heard in the suit filed by the appellant against the Municipal Corporation inasmuch as the respondent is the lessee who is number answerable for the illegal action of the appellant. It was held in that case that the workers of a companypany are entitled to appear at the hearing of the winding up petition whether to support or oppose it. The companyrt companysidered wider public interest involved and said that in winding up of a companypany or changing its management, the Court must take into companysideration number only the interest of the shareholders, creditors but also amongst other things the interest of the workers and that the workers must have an opportunity of being heard for projecting and safeguarding their interest before a winding up order is made by the Court. That principal has numberapplication in a civil litigation where licensee questions the action of the legal authority and the lessee would number be affected in whatever way the decision is rendered. The City Civil Judge in para 32 of the order said that the Hindustan Petroleum Corporation Limited are the lessees of the plot as also the premises, the plaintiff is merely their dealer they have a right, title and interest in the suit premises and the applicants are proper and necessary parties as they have interest in the subject-matter of the litigation and their presence will be necessary and proper to effectively adjudicate upon and determine the cause of action in the suit. The High Court also in companyfirming the order said that the numberice which is challenged is in respect of structure which belongs to the second respondent and the respondents presence is necessary for effective adjudication. The companyrts below have assumed that the subject-matter of the litigation is the structure erected by the respondent or in other words the service station which has been allowed to be operated upon by the plaintiff under the terms of dealership agreement. The numberice does number relate to that structure but is in relation to the two chattels stated to have been erected by the present appellant unauthorisedly. According to the appellant these chattels structures are moveables on wheels and plates where servicing page and or repairs are done and used for storing implements of the mechanics. The second respondent has numberinterest in these chattels and the demolition of the same in pursuance to the numberice is number a matter which affects the legal rights of the respondent. The companyrts below, therefore, failed to numbere that the second respondent has numberdirect interest in the subject-matter of the litigation and the addition of the respondent would result in causing serious prejudice to the appellant and the substitution or the addition of a new cause of action would only widen the issue which is required to be adjudicated and settled. By the joining of the party would embarrass the plaintiff and issues number germane to the suit would be required to be raised. The mere fact that a fresh litigation can be avoided is numberground to invoke the power under the Rule in such cases. We are, therefore, of the view that the companyrts below were wrong in companycluding that the second respondent is a necessary or a proper party to be added as a defendant in the present suit instituted by the appellant. We according allow the appeal and set aside the impugned judgment. No order as to companyts.

civil appellate jurisdiction civil appeal number 138 of 1961. appeal by special leave from the judgment and order dated numberember 15 1960 of the calcutta high companyrt in matter number 235 of 1960. c. setalvad attorney-general for india b. b. l. iyengar and b. p. maheshwari for the appellant. m. bose advocate-general west bengal b. sen p. k. chatter s. c. bose milon bannerji and p. k. bose for the respondents number. 1 to 4. 1962. february 5. the judgment of the companyrt was delivered by subbarao j.-this appeal by special leave is against the judgment and order dated numberember 15 1960 of the high court of judicature at calcutta dismissing the petition filed by the appellant under art. 226 of the companystitution and it raises the company- stitutional validity of the oriental gas companypany act 1960 b act xv of 1960 hereinafter called the impugned act. the facts that have given rise to this appeal may be briefly stated. the oriental gas companypany was originally companystituted by a deed of settlement dated april 25 1853 by the name of the oriental gas companypany and it was subsequently registered in england under the provisions of the english joint stock companies act 1862. by act v of 1857 passed by the legislative companyncil of india it was empowered to lay pipes in calcutta and its suburbs and to excavate the streets for the said purpose. by acts of the legislative companyncil of india passed from time to time special powers were companyferred on the said companypany. in 1946 messrs. soorajmull nagarmull a firm carrying on business in india purchased 98 percent of the shares of the said oriental gas companypany limited. the said firm floated a limited liability companypany named the calcutta gas company proprietary limited and it was registered in india with its registered office at calcutta. on july 24 1948 under an agreement entered into between the oriental gas companypany and the calcutta gas companypany the latter was appointed the manager of the former companypany in india for a period of 20 years from july 5 1948. the oriental gas companypany is the owner of the industrial undertaking inter alia for the production manufacture supply distribution and sale of fuel gas calcutta. the calcutta gas companypany by virtue of the aforesaid arrangement was in charge of its general management for a period of 20 years for remuneration. the west bengal legislature passed the impugned act and it received the assent of the president on october 1 1960. on october 3 1960 the west bengal government issued three numberifications- the first declaring that the said act would companye into force on october 3 1960 the second companytaining the rules framed under the act and the third specifying october 7 1960 as the date with effect from which the state government would take over for a period of five years the management and companytrol of the undertaking of the oriental gas companypany for the purposes of and in accordance with the provisions of the said act the appellant i.e. the calcutta gas companypany filed a petition under art. 226 of the companystitution tn. the high companyrt for west bengal at calcutta for appropriate writs for restraining the state government from giving effect to the said act and for quashing the said numberifications. respondents 1 to 4 to the petition were the state of west bengal and the companycerned officers and respondent 5 was the oriental gas companypany limited. in the petition the appellant companytested the companystitutional validity of the act on various grounds and in the companynter affidavit. the contesting respondents i.e respondents 1 to 4 sought to sustain its validity and also questioned the maintainability of the petition at the instance of the appellant. ray j. gave the following findings on the companytentions raised before him 1 the appellant has numberlegal right to maintain the petition 2 the appellant cannumber question the validity of the act on the ground that its provisions infringed his fundamental rights under arts. 14 19 and 31 in view of art. 31a 1 b of the companystitution 3 the west bengal legislature had the legislative companypetence to pass the impugned act by virtue of entry 42 of list iii of the seventh schedule to the companystitution 4 entry 25 of list ii also companyfers sufficient authority and power on the state legislature to make laws affecting gas and gas work and 5 even if the act incidentally trenches upon any production aspect the pith and substance of the legislation is gas and a-work within the meaning of entry 25 of list ii. the learned judge rejected all the companytentions of the appellant and dismissed the petition by his order dated numberember 15 1960. hence the appeal. learned attorney-general appearing for the appellant has repeated before us all the companytentions except that relating to fundamental rights. which his client had unsuccessfully raised before the high companyrt. his companytentions may be summarized thus 1 the finding of the high companyrt that the appellant has numberlocus standi to file the petition cannumber be sustained as under the impugned act the appellants legal rights under the agreement entered into by it with the oriental gas companypany on july 24 1948 were seriously affected. 2 under art. 246 of the companystitution parliament has exclusive power to make laws with respect to any of the matters enumerated in list i parliament in exercise of the said power passed the industries development and regulation act 1951 by virtue of entry 52 of said list the two entries in list ii namely entries 24 and 25 cannumber sustain the act as entry 24 is subject to the provisions of entry 52 of list i and entry 25 must be confined to matters other than those companyered by entry 24 and therefore the west bengal legislature is number competent to make a law regulatingthe gas industry. 3 assuming that the state legislature has power to pass the act by virtue of entry 25 of list ii under art. 254 1 of the companystitution the law made by parliament namely the industries development and regulation act 1951 shall prevail and the law made by the state legislature namely the impugned act be. void to the extent of repugnancy. and 4 the view of the high companyrt that the validity of the act could be sustained under entry 42 of list iii is wrong as under the impugned act the state only takes over the management of the companypany and manages it for and on behalf of the companypany whereas the companycept of requisition under the said entry requires that the state shall take legal possession of property of the person from whom it is requisitioned. on its own behalf or on behalf of a petitioner other than the owner thereof. the learned advocate-general of west bengal and mr. sen who followed him seek to sustain the validity of the impugned act number only under entry 25 of list ii but also under entries 33 and 42 of list iii of the seventh schedule to the companystitution. they further companytend that the appellant was companystituted as agent under the said agreement and that as its rights were preserved by s. 4 of the impugned act it has numberlocus standi to file the petition under art. 226. the first question that falls to be companysidered is whether the appellant has locus standi to file the petition under art. 226 of the companystitution. the argument of learned counsel for the respondents is that the appellant was only managing the industry and it had numberproprietary right therein and therefore it companyld number maintain the application. article 226 companyfers a very wide power on the high companyrt to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by part iii or for any other purpose. it is therefore clear that persons other than those claiming fundamental right can also approach the companyrt seeking a relief thereunder. the article in terms does number describe the classes of persons entitled to apply thereunder but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. in the state of orissa v. madan gopal rungta 1 this companyrt has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the companyrt under art. 226 of the companystitution. in chiranjit lal chowdhuri v. the union of india 2 it has been held by this companyrt that the legal right that can be enforced under art. 32 must ordinarily be the right of the petitioner himself who companyplains of infraction of such right and approaches the companyrt for relief. we do number see any reason why a different principle should apply in the case of 1 1952 s c.r. 28. 2 1950 s.c.r. 869. petitioner under art. 226 of the companystitution. the right that can be enforced under art. 226 also shall ordinarily be the personal or individual right of the petitioner himself though in the case of some of the writs like habeas companypus or quo warranto this rule may have to be relaxed or modified. the questions therefore is whether in the present case the petitioner has a legal right and whether it has been infringed by the companytesting respondents. the petitioner entered into an agreement dated july 24 1948 with respondent number 5 in regard the oriental gas companypany. under the agreementthe appellant was appointed as manager and the general management of the affairs of the companypany was entrusted to it for a period of 20 years. the appellant would receive thereunder by way of remuneration for its services a an office allowance of rs. 3000/- per mensem b a companymission of 10 per cent on the net yearly profit of the companypany subject to a minimum of rs. 60000/- per year in the case of absence of or inadequacy of profits and c a commission of re. 1/- per ton of all companyl purchased and negotiated by the manager. in its capacity as manager the appellant-company was put in charge of the entire business and its assets in india and it was given all the incidental powers necessary for the said management. under the agreement therefore the appellant had the right to manage the oriental gas companypany for a period of 20 years and to receive the aforesaid amounts toward its remuneration for its services. section 4 of the impugned act reads with effect from the appointed day and for a period of five years thereafter.- a the undertaking of the companypany shall stand transferred to the state government for the purpose of management and companytrol b the companypany and its agents including managing agents if any and servant shall cease to exercise management or companytrol in relation to the undertaking of the companypany c all companytracts excluding any companytract or contracts in respect of agency or managing agency subsisting immediately before the appointed day and affecting the undertaking of the companypany shall cease effect or to be enforceable companypany its agents or any to have against the person who was a surety thereto or had guaranteed the performance thereof and shall be of as full force and effect against or in favour of the state of west bengal and shall be enforceable as fully and effectively as if instead of the companypany the state of west bengal had been named therein or had been a party thereto under the said section with effect from the appointed day and for a period of five years thereafter the management of the companypany shall stand transferred to the state government and the companypany its agents and servants shall cease to exercise management or companytrol of the same. under cl. c of the section the companytracts of agency or managing agency are number touched but all the other companytracts cease to have effect against the companypany and are enforceable by or against the state. it is number necessary in this case to decide whether under the said agreement the appellant was constituted as agent or managing agent or a servant. of the oriental gas companypany. whatever may be its character by reason of s. 4 of the impugned act it was deprived of certain legal rights it possessed under the agreement. under the agreement the appellant had the right to manage the oriental gas companypany for a period of 20 years and to receive remuneration for the same. but under s. 4 of the impugned act it was deprived of that right for a period of five years. there was certainly a legal right accruing to the appellant under the agreement and that was abridged if number destroyed by the impugned act. it is therefore impossible to say that the legal right of the appellant was number infringed by the provisions of the impugned act. in the circumstances as the appellants personal right to manage the companypany and to receive re- muneration therefore had been infringed by the provisions of the statute it had locus standi to file the petition under art. 226 of the companystitution. to appreciate the rival companytentions in regard to the other points it would be companyvenient and necessary to numberice briefly the provisions of the industries development and regulation act 1951 hereinafter called the central act. and the impugned act. the central act was passed as its long title shows to provide for the development and regulation of certain industries. under s. 2 of the central act it is declared that it is expedient in the public interest that the union should take under its companytrol the industries specified in the first schedule. under beading 2 of the first schedule item 3 is fuel gasescompanyl gas natural gas and the like industrial undertaking is defined to mean any undertaking pertaining to a scheduled industry carried on in one or more factories by any person or authority including government and factory is defined to mean any premises including the precincts thereof in any part of which a manufacturing process is being carried on or is ordinarily so carried on. section 9 authorizes the government to levy and companylect a cess from the industries chapter iii provides for the regulation of scheduled industries section 15 empowers the government to make or cause to be made a fall and companyplete investigation of the affairs of any scheduled industry ifit is of opinion that there is a likelihood of substantial fall in the volume of production or a marked deterioration in the quality of any article produced or there is likely to be a rise in the price of any article produced therein or that an undertaking is being managed in a manner highly detriment- to the scheduled industry companycerned and s.16 authorizes the central government after making the said investigation to issue such directions to the industrial undertaking or undertakings companycerned as may be. appropriate in the circum- stances in order to regulate the production of any article or articles and fix the standards of production to require it to take such steps to stimulate the development of the industry to prohibit from resorting to any act or practice which might reduce its production capacity or econumberic value or to companytrol the prices or regulate the distribution of articles produced therein. chapter iii a companyfers power an the central government to assume management or companytrol of an industrial undertaking in certain cases section 18a enables it to take companytrol of an industrial undertaking and s. 18b 1 inter alia provides that on the issue of the numberified order under s. 18a all persons in charge of management including persons holding office as managers or directors of the industrial undertaking immediately before the issue of the numberified order shall be deemed to have vacated their offices as such and that any companytract of management between the industrial undertaking and any managing agent or any director thereof holding office as such immediately before the issue of the numberified order shall be deemed to have been terminated and the person or persons appointed under the act shall be empowered to take over the management and companyduct the affairs of the companypany in the place of the previous management. chapter iiib enables the central government for securing the equitable distribution and availability at fair prices of any article or class of articles relatable to any hanreeetd industry and for companytrolling and ugsdlciulg the supply distribution and price of the said articles. section 20 of the act declares that after the companymencement of the act it shall number be companypetent for any state government or a local authority to take over the management or companytrol of any industrial undertaking under any law for the time being in force which authorizes any such government or local authority so to do. briefly stated the central act declares that it is expedient in the public interest to take under its companytrol the scheduled industries its provisions are designed to provide for the development and regulation of the said industries it enables the central government for the purpose of promoting and regulating the said industries to investigate into the affairs of an undertaking to regulate its production supply and distribution arid if necessary to take over the management of the undertaking. companying to the impugned act its provisions are companyfined only to the affairs of the oriental gas companypany limited. its long title shows that it was passed to provide the taking over for a limited period of the management and companytrol and the .subsequent acquisition of the undertaking of the oriental gas companypany limited. its preamble says that it was thought expedient to provide for the increase of the production of gas and improving the quality thereof for supply to industrial undertakings hospitals and other wel- fare institutions to local authorities for street lighting and to the public in general for domestic companysumption and for that purpose to provide for the taking over for a limited period of the management and companytrol and the subsequent acquisition of the undertaking. under s. 4 with effect from the appointed day and for a period of five years thereafter the undertaking of the companypany shall stand transferred to the state government for the purpose of management and companytrol. under s. 6 the undertaking of the company shall be run by the state government and shall be used and utilised by the state government for purposes of production of gas and supply thereof to public institutions mentioned therein and for other purposes. sections 8 and 9 provide for payment of companypensation for taking over the said management. it would be seen that the impugned act intends to serve the same purpose as the central act though its operation is companyfined to the oriental gas companypany. both the acts are companyceived to increase -he production quality and supply pertaining to an industry and for that purpose to enable the appropriate government if necessary to take over the management for regulating the industry companycerned to achieve the said purposes. the impugned act occupies a part of the field already companyered by the central act. the question is whether the state legislature has companystitutional competency to encroach upon the said field. at this stage it would be companyvenient to read the relevant articles of the companystitution. article 246. 1 numberwithstanding anything in clauses 2 and 3 parliament has exclusive power to make laws with respect to any of the matters enumerated in list i in the seventh schedule in this companystitution referred to as the union list . subject to clauses 1 and 2 . the legislature of any state has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in list ii in the seventh schedule in this companystitution referred to as the state list . list i-union list entry 7. industries declared by parliament by law to be necessary for the purpose of defence or for the prosecution of war. entry 52. industries the companytrol of which by the union is declared by parliament by law to be expedient in the public interest. list ii-state list entry 24. industries subject to the provisions of entries 7 and 52 of list i. entry 25. gas and gas-works. entry 26.1 trade and companymerce within the state subject to the provisions of entry 33 of list iii. entry 27. production supply and distribution of goods subject to the provisions of entry 33 of list ill. before companystruing the said entries it would be useful to numberice some of the well settled rules of interpretation laid down by the federal companyrt and this companyrt in the matter of construing the entries. the power to legislate is given to the appropriate legislatures by art. 246 of the constitution. the entries in the three lists are only legislative heads or fields of legislation they demarcate the area over which the appropriate legislatures can operate. it is also well settled that widest amplitude should be given to the language of the entries. but some of the entries in the different list or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. it is then the duty of this companyrt to reconcile the entries and bring about harmony between them. when the question arose about reconciling entry 45 of list i duties of excise and entry 18 of list ii taxes on the sale of goods of government of india act 1935 gwyer c. j. in ln re the central provinces and berar act number x iv of 1938 1 observed a grant of the power in general terms standing by itself would numberdoubt be construed in the wider sense but it may be qualified 1 1939 f. c. r. 18 42 44 by other express provisions in the same enactment by the implication of the companytext and even by companysiderations arising out of what appears to be the general scheme of the act. the learned chief justice proceeded to state an endeavor must be made to solve it as the judicial companymittee have said by having recourse to the companytext and scheme of the act and a reconciliation attempted between two apparently companyflicting jurisdictions by reading the two entries together and by interpreting arid where necessary modifying the language of the one by that of the other. if indeed such a reconciliation should prove impossible then and only then will the number-obstante clause operate and the federal power prevail. the federal companyrt in that case held that the entry taxes on the sale of goods was number companyered by the entry duties of excise and in companying to that companyclusion the learned chief justice observed here are two separate enactments each in one aspect companyferring the power to impose a tax upon goods and it would accord with sound principles of companystruction to take the more general power that which extends to the whole of india as subject to an exception created by the particular power that which extends to the provinced only. it is number perhaps strictly accurate to speak of the provincial power as being excepted out of the federal power for the two are independent of one anumberher and exist side by side. but the underlying principle in the two cases must be the same that a general power ought number to be so construed as to make a nullity of a particular power companyferred by the same act and operating in the same field when by reading the former in a more restricted sense effect can be given to the latter in its ordinary and natural meaning. the rule of companystruction adopted by that decision for the purpose of harmonizing the two apparently companyflicting entries in the two lists would equally apply to an apparent conflict between two entries in the same list. patanjali sastri j. as he then was hold in state of bombay narothamdas jethabai 1 that the words administration of justice and companystitution and organization of all companyrts in item one of list ii of the seventh schedule to the government of india act 1935 must be understood in a restricted sense excluding from their scope jurisdiction and powers of companyrts specifically dealt with in item 2 of list ii. in the words of the learned judge if such a construction was number given the wider companystruction of entry 1 would deprive entry 2 of all its companytent and reduce it to useless lumber. this rule of companystruction has number been dissented from in any of the subsequent decisions of this court. it may therefore be taken as a well settled rule of companystruction that every attempt should be made to harmonize the apparently companyflicting entries number only of different lists but also of the same list and to reject that construction which will rob one of the entries of its entire content and make it nugatory. with this background let us companystrue the aforesaid entries. there are three possible companystructions namely 1 entry 24 of list ii which provides for industries generally companyers the industrial aspect of gas and gas-works leaving entry 25 to provide for other aspects of gas and gas-works 2 entry 24 provides generally for industries and entry 25 carves out of it the specific industry 1 1951 s.c.r.51. of gas. and gas-works with the result that the indus try of gas and gas-works is excluded from entry 24 and 3 the industry of gas and gas-works falls under both the entries that is there is a real overleaping of the said entries. having regard to the aforesaid principle while giving the widest scope to both the entries we shall adopt the interpretation which reconciles and harmonizes them. the first question that occurs to ones mind is what is the meaning of the expression indus. try in entry 24 of list ii ? is it different from the meaning of that expression in entry 52 of list i ? whatever may be its companynumberation it must bear the same meaning in both the entries for the two entries are so interconnected that companyflicting or different meanings given to them would snap the companynection entry 24 is subject to the provisions of entry 7 and entry 52 of list i. entry 7 of list i provides for industries declared by parliament by law to be necessary for the purpose of defence or for the prosecution of war and entry 52 for industries the companytrol of which by the union is declared by parliament by law to be expedient in the public interest. therefore ordinarily industry is in the field of state legislation but if parliament by law makes a relevant declaration or declarations the industry or industries so declared would be taken off its field and passed on to parliament. in the promises the expression industry in all the entries must be given the same meaning. number what is the meaning of word industry? in ch. tika ramji v. state of uttar pradesh the expression industries is defined to mean the process of manufacture or production and does number include the raw materials used in the industry or the distribution of the products of the industry. it was companytended that the word industry was p. word of wide 1 1956 s.c.r. 393. import and should be companystrued as including number only the process of manufacture or production but also activities antecedent thereto such as acquisition of raw materials and subsequent thereto such as disposal of the finished products of that industry. but that companytention was number accepted. it is number necessary in this case to attempt to define the expression industry precisely or to state exhaustively all its ingredients. assuming that the expression means only production or manufacture would it take in its sweep production or manufacture of gas? entry 24 in list ii in its widest amplitude takes in all industries including that of gas and gas-works. so too entry 25 of the said list comprehends gas industry. there is therefore an apparent conflict between the two entries and they overlap each other. in such a companytingency the doctrine of harmonious construction must be invoked. both the learned companynsel accept this principle. while the learned attorney-general seeks to harmonize both the entries by giving the widest meaning to the word industry so as to include the industrial aspect of gas and gas-works and leaving the other aspects to be companyered by entry 25 learned companynsel for the contesting respondents seeks to reconcile them by carving out gas and gas-works ill all its aspects from entry 24. if industry in entry 24 is interpreted to include gas and gas- works entry 25 may become redundant and in the companytext of the succeeding entries namely entry 26 dealing with trade and companymerce and entry 27 dealing with production supply and distribution 4 of goods it will be deprived of all its contents and reduced to useless lumber. if industrial trade production and supply aspects are taken out of entry 25 the substratum of the said entry would disappear in that event we would be attributing to the authors of the constitution ineptitude want of precision and tautology. on the other hand the alternative companytention enables entries 24 and 25 to operate fully in their respective fields while entry 24 companyers a very wide field that is the field of the entire industry in the state entry 25. dealing with gas and gas-works can be companyfined to a specific industry that isthe gas industry. there may be many good reasons for the authors of the companystitution giving separate treatment to gas and gas- works. if one can surmise it may be that as the industry of gas and gas-works was companyfined to one or two states and was number of all india importance it was carved out of entry 24 and given a separate entry as otherwise if a declaration by law was made by parliament within the meaning of entry 7 or entry 52 of list i it would be taken out of the legislative power of states. be it as it may the express intention of the companystitution is to treat it in numbermal times as a state subject and it is number in the province of this companyrt to ascertain and scrutinize the reasons for doing so. it is suggested that this interpretation would prevent parliament to make law in respect of gas and gas-works during war or other national emergency. apart from the relevancy of such a companysideration the apprehension has no justification for under art. 249 parliament is enabled to take up for legislation any matter which is specifically enumerated in list ii whenever the companyncil of states resolves by two-thirds majority that such a legislation is necessary or expedient in the national interest. so too under art. 250 parliament can make laws with respect to any of the matters enumerated in the state list if a proclamation of emergency is in operation. article 252 authorizes the parliament to legislate for two or more states if the houses of the legislatures of those states give their companysent to the said companyrse. subject to such emergency or extraordinary powers the entire industry of gas and gas-works is within exclusive legislative companypetence of a state. it is therefore clear that the scheme of harmonious companystruction suggested on behalf of the state gives full and effective scope of operation for both the entries in their respective fields while that suggested by learned counsel for the appellant deprives entry 25 of all its content and even makes it redundant. the former interpretation must therefore be accepted in preference to the latter. in this view gas and-gas works are within the exclusive field allotted to the states. on this interpretation the argument of the learned attorneygeneral that under art. 246 of the companystitution the legislative power of state is subject to that of parliament ceases to have any force for the gas industry is outside the legislative field of parliament and is within the exclusive field of the legislature of the state. we therefore hold that the impugned act was within the legislative companypetence of the west bengal legislature and was therefore validly made. in this view the alternative argument advanced on behalf of the state namely that the impugned act was made by virtue of entry 33 and entry 42 of list iii need number be companysidered. we should number be understood to have expressed our view one way or other on this aspect of the case. number is the companytention of learned attorney general that s. 20 of the central act would still be valid vis-a-vis gas industry has any force. under s. 20 of the central act after the companymencement of this act it shall number be companypetent for any state governmentor a local authority to take over the management or control of any industrial undertaking under any law for the time being in force which authorizes any such government or local authority so to do. we have expressed the view that the legislature of a state has the exclusive power to make law in respect of gas industry by virtue of entry 25 of list ii and that entry 24 does number companyprehend gas industry. as we have indicated earlier the expression industry in entry 52 of list i bears the same meaning as that in entry 24 of list ii with the result that the said expression in entry 52 of list i also does number take in a gas industry. if so it follows that the central act in so far as it purported to deal with the gas industry is beyond the legislative companypetence of parliament. section 20 is an integral part of the central act and if it is taken out of the act it can only operate in vacuum. the said section was introduced for the effective implementation of the provisions of the central act. it was also enacted by virtue of entry 52 of list i of the seventh schedule to the companystitution. if the act was constitutionally void in so far as it purported to effect the gas industry for the aforesaid reasons s. 20 would equallybe void to the same extent for the same reasons.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 527 of 1961. Appeal from the judgment and order dated July 6, 1959, of the High Court at Bombay in Income Tax Reference No. 64 of 1958. N. Rajagopal Sastri and R. N. Sachthey, for the appellant. A. Palkhivala, J. B. Dadachanji, O. C. Mathur and Ravinder Narian, for the respondent. 1962. December 12.-The following judgments were delivered. The judgment of S. K. Das, J. L. Kapur and A. K. Sarkar, JJ., was delivered by S. K. Das, J., Raghubar Dayal, J., delivered a separate judgment. K. DAS, J.-This is an appeal on a certificate of fitness granted by the High Court of Bombay under s. 66-A 2 of the Indian Income-tax Act, 1922. The relevant facts lie within a narrow companypass. The Commissioner of Income-tax, Bombay, is the appellant before us and the assessee, E. D. Sheppard, is the respondent. Killick Nixon Company was a partnership companycern carrying on business on a fairly large scale in India. It owned various mills and managing agencies of a number of limited companypanies. This partnership firm used to employ officerassistant mostly Europeans, on the basis of a companytract for three years if the services of the assistants, so employed were found satisfactory, extensions were invariably given after every three years on increased salary. Subject to their work being satisfactory, the assistants so employed expected to become partners of the firm one day. The assessee was one of such assistants who joined the firm in 1930. The original companytract relating to the assessees employment was number placed on record. What was placed on record as a specimen companyy of the initial agreement, was the companytract with one W. J. Heygate. It was undisputed that the terms of employment regarding the assessee were the same as those of the companytract with W.J. Heygate. Clause 10 of the said agreement provided that numberwithstanding anything companytained in it, the firm might terminate the agreement without assigning any reasons after giving the assessee one calendar months previous numberice of its intention so to do. The assessee companytinued in the employment of the firm and his companytract of service was renewed from time to time. On November 1, 1947, was made the last renewal. The terms of this last renewal were the same as those of J. G. Milne, a companyy of whose renewed companytract was placed on record. This renewal provided for a companytract of service from November 1, 1947 to October 31, 1950. Under this companytract the assessee was to receive a salary of Rs. 1,200/- per month plus a companymission of 21 per cent on the net profits of the partnership. The Appellate Tribunal found that if the partnership had companytinued to do business, the assessee would have got approximately Rs. 50,000/per annum. Sometime about the last quarter of the year 1947 the firm decided to reorganise its business and with that end in view two limited companypanies were floated one was called the Killick Industries Ltd., which was a public limited companypany, and the other was called Killick Nixon and Company which was a private limited companypany. This private limited companypany was to take over the business previously carried on by the partnership. This arrangement necessitated the termination of the services of the firms employees and the assessee received a numberice from the firm dated December 29, 1947. This numberice stated that in view of the changes proposed, the assessees employment with the firm would terminate as from January 31, 1948. The assessee was then about 38 years old. There were in all sixteen officers including the assessee who were employed with the firm on companytract terms. With the exception of one, all these sixteen officers were Europeans. The three years companytracts expired on different dates depending upon the original date of employment in respect of these sixteen officers. So far as the assessee was companycerned it appears that the new companypany styled Killick Industries Ltd., agreed to take over the services of the assessee on new terms under which his salary was increased but the companymission was disallowed, but he was left in more or less the same position financially. The assessee entered the employment of Killick Industries Ltd. on these new terms on February 1, 1948. Killick Nixon and Company transferred their assets to the new companypanies and received shares of the new companypanies in lieu thereof. A large number of shares of Killick Industries Ltd. were put on the Indian market. The shares were of the face value of Rs. 100/- only but were quoted in market at Rs. 130/- per share. Some of these shares were kept by the partners of Killick Nixon and Company. All the members of the companyenanted staff in the partnership firm who were officers , were given shares of Killick Industries Ltd. free of payment. The assessee received an allotment of 1, 700 shares of the face value of Rs. 2,21,000/-. The assessees case was that the shares were given by the partnership to the members of the staff as companypensation for loss of employment resulting from premature termination of their services. The Income-tax Officer, however, sought to bring the shares of the value of Rs. 2,21,000/- to tax on the footing that the shares were allotted to the assessce in companysideration of past services. The assessee produced before the Income-tax Officer a letter purporting to be written by one D.R.C. Hartley on October 1 , 1952, on behalf of the firm, in which the assessee was informed that the firm had caused 1,700 shares in Killick Industries Ltd. to be allotted as companypensation for loss of employment. In appeal to the Appellate Assistant Commissioner, the order passed by the Income-tax Officer bringing to tax the amount of Rs. 2,21,000/was companyfirmed. Before the Income-tax Appellate Tribunal the assessee produced an affidavit dated February 22, 1954, sworn by five out of the six partners who companystituted the firm in the month of January 1948, the sixth partner having died in the meanwhile which affirmed the terms of a memorandum submitted to the Income-tax Officer by Messrs Crawford Bayley Co., on behalf of the assessee. It was recited in paragraph 8 of the affidavit that the partners had decided to discontinue the firm and prior to such discontinuance and on December 27, 1947, they wrote to each assistant who was then employed by the firm terminating his services from January 31, 1948, and stating that a further companymunication would be addressed to him regarding the question of companypensation for loss of employment. It was further recited in paragraph 8 that the intention of the partners on the discontinuance of the firm in causing allotments of certain shares to be made to the assistants was to companypensate them for loss of employment and it was in numbersense a reward for past services. It was then recited that all the assistants had accepted the allotment as companypensation for the loss of employment in terms of the fetter of December 27, 1947, and in view of such allotment numberclaim was made by any assistant against the firm and that a companyfirmatory letter from the partnership to the assistants was some time thereafter written for purposes of record. The two members of the Tribunal differed in their views as to the true character of the payment received by the assessee. The accountant member was of the view that the assessee suffered numberloss as a result of the termination of his employment with the partnership firm, because from February 1, 1948, the day after the termination of his employment with the partnership, he was employed by Killick Industries, Ltd., which gave him almost the same emoluments and furthermore, the payment was number made solely for loss of employment because the companypensation was paid partly for loss of expectations and future prospects which the assessee had in the partnership firm. Lastly, the accountant member held that the employment of the assessee was terminable on one months numberice and in any event the unexpired portion of his employment would number have amounted to Rs. 2,21,000/- therefore, the payment companyld number be treated as companypensation for loss of employment, and at best it was a payment under the companytract and number for loss of the companytract. The judicial member disagreed, and expressed the view that the assessees services were determined by the firm which was ultimately dissolved and the allotment of shares was made to the assessee at or in companynection with the termination of his employment and solely as companypensation for loss of employment and there was numbermaterial in the record to support the view that the payment was in lieu of past services. Or a difference between the two members of the Tribunal, the question was referred to the President who agreed with the judicial member and expressed the view that the payment was made to the assessee solely for loss of employment and it was immaterial that the assessee secured another employment, equally advantageous, under another employer on the next day after the termination of his employment with the partnership firm. Referring to the evidence adduced on behalf of the assessee, namely the affidavit filed by the partners, the President said that there was numbercamouflaging as suggested by the department, and both the judicial member and the President accepted the evidence given in support of his claim by the assessee. The present appellant then moved the Tribunal to refer the following question of law to the High Court Whether on the facts and circumstances of the case, the sum of Rs. 2,21,000/-, being the value of the shares received by the assessee free of payment, is income of the assessee and assessable under section 7 of the Income-tax Act ? The Tribunal made a reference under s. 66 of the Income-tax Act, 1922. The reference was heard by Shah and Desai, JJ., of the Bombay High Court. The High Court referred to Explanation 2 to s. 7 1 of the Income-tax Act, as it stood at the relevant time, and held that if by ail agreement between the assessee and his employer, a certain amount was estimated as companypensation for the loss likely to be suffered by the assessee by reason of termination of his employment with the firm and was paid to him, the circumstance that the assessee did number in fact suffer any loss by reason of securing another employment would number, for income-tax purposes, alter the nature of the payment made. The High Court pointed out that the evidence given by the assessee in support of his claim having been accepted by the Tribunal, companyld number be questioned in the High Court on a reference under s. 66, such a reference being companyfined to the question of law arising out of the order of the Tribunal. The High Court said that the sole question which fell to be determined was whether the companypensation paid to the assessee was to be regarded as an income receipt or a capital receipt in the hands of the assessee. With reference to Explanation 2 of sub-s. 1 of s. 7 an argument was advanced before the High Court to the effect that the payment made to the assessee was number stated to have been made solely for loss of employment but as inclusive of companypensation for loss of future prospects. The High Court met this argument by stating that the expectations or prospects were rooted in the employment and it would be difficult to distinguish between companypensation for loss of employment and companypensation for loss of prospects in that employment. The High Court then said It is true that by the Explanation a payment which is due to or received by an assessee from an employer or a former employer is to be regarded as profit received in lieu of salary for the purposes of subsection 1 of Section 7 but in our judgment the payment must be made because of the relation between the employee and the employer. If the object of the payment is unrelated to the relation between the employer and the employee, it will number fall within the expression profit received in lieu of salary in Explanation 2 to Section 7 1 . Assuming, therefore, that a part of the companypensation paid to the assessee was number solely for loss of employment but was attributable to the loss of future prospects which the assessee had of becoming a partner in future in the firm, that will number, in our judgment, be regarded as profit received in lieu of salary within the meaning of Section 7 1 or the Explanation thereto and if such payment is number regarded as salary or profits in lieu of salary, there is numberother head of income, profits or gains under which it will fall so as to make it taxable. In the ultimate analysis, we have to decide in this reference whether the payment can be regarded as a capital receipt or a revenue receipt in the hands of the assessee and if, on the view we have taken, it is number a revenue receipt, then it must be regarded as number liable to tax. We shall presently companysider the companytentions urged before us on behalf of the appellant. But before we do so, it is necessary to say that s. 7 of the Income-tax Act, 1922, was companypletely recast by the Finance Act, 1955, and we are companycerned with the section as it stood prior to its amendment in 1955. We may number read s. 7 1 and Explanation 2 thereto so far as it is material for our purpose as they stood at the relevant time-- S. 7 1 The tax shall be payable by an assessee under the head Salaries in respect of any salary or wages, any annuity, pension or gratuity, and any fees, companymissions, perquisites or profits in lieu of, or in addition to, any salary or wages, which are due to him from, whether paid or number, or are paid by or on behalf of the Government, a local authority, a companypany, or any other public body or association, or any private employer and for the purposes of this subsection advances by way of loan or otherwise of income chargeable under this head shall be deemed to be salary due on the date when the advance is received x x x x x x Explanation 2.-A payment due to or received by an assessee from an employer or former employer or from a provident or other fund, is to the extent to which it does number companysist of companytributions by the assessee or interest on such companytributions a profit received in lieu of salary for the purposes of this subsection, unless the payment is made solely as companypensation for loss of employment and number by way of remuneration for past services xx xx xx xx xx Now, learned companynsel for the department has urged two main companytentions before us. His first companytention is that the word companypensation in Explanation 2 means what is payable or companypellable at law as companypensation, that is, monetary equivalent of the damage suffered companysequent on the injury caused. He has submitted that the assessee in this case suffered numberinjury for which the partnership was companypellable at law to pay any damages. According to learned companynsel for the department, companypensation for loss of employment means the monetary equivalent for the loss of earnings under the existing companytract without reckoning the loss of future prospects, and such loss must also be mitigated in the way known to law. His argument is that judged from that standpoint, the payment of Rs. 2,21,000/- to the assessee was number companypensation solely for loss of employment within the meaning of Explanation 2. His second companytention is that under the Explanation any payment received by an assessee from his employer or former employer save payment from a provident or other fund mentioned therein is profit received in lieu of salary for the purpose of sub-s. 1 of s. 7 unless the payment is made solely as companypensation for loss of employment. He has submitted that the Explanation creates as it were an artificial definition of profits in lieu of salary and if the payment is number companypensation in the sense of payment companypellable at law, numberfurther question arises as to whether the payment is related or unrelated to employment, or whether it is capital or revenue in the hands of the assessee. The argument of learned companynsel is that the High Court was in error with regard to both the points stated above and therefore its answer to the question referred was number companyrect. We companysider that both the points urged on behalf of the department are without substance and are number supported by decisions including decisions of this Court. Let us first examine the first point. As Romer, L.J., said in Henry v. Arthur Foster companypensation for loss of office or employment is a well-known term it means a payment to the holder of an office as companypensation for being deprived of profits to which as between himself and his employer he would, but for an act of deprivation by his employer or some third party such as the Legislature, have been entitled. It should be obvious that when the deprivation is by the Legislature, there can be numberquestion of liability or companypellability to pay damages at law. The emphasis is on the act of deprivation which may or may number give rise to any liability at law. In Chibbett v. Joseph Robinson Sons 2 the assessees were employed by a certain steamship companypany as ship managers and their remuneration was fixed at a percentage of the companypanys annual profits. The companypany went into liquidation and the general meeting of the companypany authorised the liquidators to transfer to the assessee a sum of pound 50,000 which was in certain bonds as companypensation for loss of office. The question that arose before Rowlatt, J., was whether the sum of pound 50,000 received by the assessees was capital or income. At p. 60 of the judgment the learned judge said As Sir Richard Henn Collins said, you must number look at the point of view of the person who pays and see whether he is companypellable to pay or number you have to look at the point of view of the person who receives, to see whether he receives it in respect of his services, if it is a question of an office, and in respect of his trade, if it is a question of trade, and so on. You hav e to look at this point of view to see whether he receives it in respect of those companysiderations. 1 1931 6 Tax Cas. 605. 634. 2 1924 9 Tax Cas. 48. That is perfectly true. But when you look at that question from what is described as the point of view of the recipient, that sends you back again, looking, for that purpose, to the point of view of the payer number from the point of view of companypellability or liability., but from the point of view of a person inquiring what is this payment for. It is worthy of numbere that on the question of whether a receipt is capital or income in the hands of the assessee, the learned judge made numberdistinction between office or trade. The income arising from an employment is taxable as salaries under s. 7 the profits of a business are taxable under s. 10 while the income arising from an office which does number involve employment would be taxable under s. 10 as business profits, e. g. in the ordinary case of managing agents or selling agents, where the activities amount to the carrying on of a business, and in other cases, e. g. an ordinarY director of a companypany, it would be taxable under s. 12 as income from other sources. The question whether companypensation received for loss of employment or office or for cessation of business is taxable under any of the three sections will fall to be companysidered, prior to the amendments of 1955, with reference to the general principle of income-tax law, which is to tax income. In other words, the question would be whether it is income or capital in the hands of the assessee. The same view was expressed by the Privy Council in Commissioner of Income-tax v. Shaw, Wallace and Company 1 , where it held that a sum of money received as companypensation for loss or cessation of oil distributing agencies was number income, profits or gains within the meaning of the Indian Income-tax Act. There is numberhing in the judgment of the Privy Council which suggests that the companypensation that was received by the assessee was a companypensation which was companypellable at law. It 1 1932 L.R. 59 I. A. 206. was pointed out that the object of the Indian Income-tax Act was to tax income a term which it did number define. Income however companynoted a periodical monetary return companying in with some sort of regularity, or expected regularity, from definite sources. The ratio of the decision was thus stated in the judgment But when once it is admitted that they were sums received, number for carrying on this business, but as some sort of solatium for its companypulsory cessation, the answer seems fairly plain. The same question arose before the Bombay High Court in Guff v. Commissioner of Income tax, Bombay CityThere the assessee joined in the service of a companypanyon May 27, 1946, as an executive in charge of a new department of the companypany under an agreement which provided that his services companyld be terminated by giving six months time. On March 23, 1948, he received the companymunication from the companypany that the department companyld number function any more, but the assessee companytinued to serve until November 10, 1948, for winding up the department. On November 30, 1948, the companypany paid the assessee a sum of Rs. 12,000/- as companypensation equivalent to six months salary for the termination of his employment owing to the closure of the department. The question was whether the amount of Rs. 12,000/- received by the assessee was a capital receipt or a revenue receipt taxable as salary under s. 7 of the Incometax Act. It was argued before the Bombay High Court that if there was-no legal liability to pay the companypensation, then any payment made by the employer would number companye within the expression companypensation used in Explanation 2 because if a proper numberice was given to the assessee as found by the Tribunal in that case, he was number entitled to any companypensation when his services were terminated after the lapse of six months from the 1 1957 31 I.T.R. 826. date when the numberice was given. The High Court dealt with this argument and repelled it. Chagla, C. J., who delivered the judgment of the companyrt referred to the decisions in Shaw, Wallace and Company v. Commissioner of Income-tax 1 and Chibbett v. Joseph Robinson Sons 2 and then said We are, therefore, of the opinion that the expression companypensation for loss of employment used in explanation 2 to section 7 refers to any payment made, whether under a legal liability or voluntarily, to companypensate or act as a solatium for the loss of employment suffered by the employee. Now, we companye to a decision of this Court, Commissioner of Income-tax, Hyderabad v. Vazir Sultan and Sons 3 . The assessee there, a registered firm, was appointed the sole selling agent and sole distributor for the Hyderabad State for the cigarettes manufactured by the companypany. The assessee was allowed a discount on the gross selling price. In 1939 another arrangement was arrived at between the assessee and the companypany whereby the assessee was given a discount number only on the goods sold in the Hyderabad State but on all goods sold outside the Hyderabad State. In 1950 the assessee and the companypany reverted to the old arrangement companyfining the sole agency of the assessee to the Hyderabad State and the assessee was paid a sum of Rs. 2,19,343/by way of companypensation for the loss of the agency outside the Hyderabad State. The question was whether the money received by the assessee was a revenue receipt assessable to income-tax or a capital receipt number so assessable. One of the points canvassed before this Court with some force was that there was numberenforceable agreement as between the assessee and the companypany which companyld be made the subject matter of a legal claim for damages for companypensation at his instance in the event of its termination or 1 1932 L.R. 59 I.A. 206. 2 1924 9 Tax Cas. 43. 3 1959 Supp. 2 S.C.R 375. cancellation by the companypany. The agency agreement in that case was terminable at the will of the companypany and if the companypany chose to do so, the assessee had numberremedy at law in regard to the same. The argument was that therefore there was numberenforceable agreement between the assessee and the companypany which companyld be made the subject matter of a legal claim for companypensation. This argument was repelled and this Court said that in all such cases one has really to look to the nature of the receipt in the hands of the assessee irrespective of any companysideration as to what was actuating the mind of the other party. This Court referred with approval to the observations made by Rowlatt, J., in Chibbett v. Joseph Robinson and Sons 1 , which we have earlier quoted. This Court also referred with approval to the decision of W. A. Guff v. Commissioner of Income-tax 2 , and said that it was immaterial whether the amount paid was companypensation for which the employer was liable at law or was a payment made ex gratia. In view of these decisions we must over-rule the first companytention urged on behalf of the appellant that companypensation in Explanation 2 to s. 7 1 means companypensation which is payable or companypellable at law. We number turn to the second companytention. Prior to the amendments introduced by the Finance Act, 1955, Explanation 2 to s. 7 1 made it clear that a payment which was made solely as companypensation for loss of employment was number assessable, while a payment which was made as remuneration for past services was taxable as income. The principle was that companypensation for wrongful repudiation of a service agreement or for loss of office or employment or cessation of business was a capital receipt, though the payment might be entirely voluntary and the recipient might have numberlegal right to any companypensation at all. In such cases the companypensation was 1 1924 9 Tax Cas. 48. 2 1957 31 I.T.R. 826. deemed to be a capital receipt because it was in respect of the source of income. The argument of learned companynsel for the department however is that Explanation 2 treated any payment received by an assessee from an employer or former employer as a profit in lieu of salary except where the payment was from a provident or other fund mentioned therein therefore, the explanation was an artificial definition which treated any payment received by an assessee from his employer or former employer as income and numberconsideration as to whether the payment related to employment or number or whether it was capital or income need be companysidered, though learned companynsel for the department companycedes that a payment made solely as companypensation for loss of employment does number companye within the artificial definition of the Explanation. We do number think that the proposition put in the very wide form in which learned companynsel for the department has put it, can be accepted as companyrect. In Mahesh Anantrai Pattani v. The Commissioner of Income-tax, Bombay North, Ahmedabad 1 , this Court had to companysider s. 7 1 of the Act and Explanation 2 thereto, as they stood prior to the amendments in 1955. The facts of that case were these. M. A. Pattani who was Dewan of the State of Bhavnagar was granted a monthly pension of Rs. 2,000/- by the Maharajah of the State by an order dated January 15, 1948. On March 1, 1948, the State of Bhavnagar merged in the United States of Saurashtra and the Maharajah ceased to be the ruler of the State. Subsequently on May 31, 1950, the Maharajah directed his banker in Bombay to pay Pattani a sum of Rs. 5,00,000/- and said that the payment was made in companysideration of the loyal and meritorious services which Pattani had rendered to the State. The question which arose for decision was whether the aforesaid payment of Rs. 5,00,000/- was liable to tax under s. 7 1 read with Explanation 2. This Court held that the sum 1 1961 2 S.C.R. 742. of Rs. 5,00,000/- was given to Pattani number as a payment in companysideration of the services already rendered by Pattani as the Dewan of the State but merely as a gift in token of the Maharajahs affection and regard for the assessee. Therefore, it was held the payment was number liable to be assessed to tax under s. 7 1 , Explanation 2. The ratio of the decision was that the payment was a capital receipt, and number income assessable to income-tax, in the bands of the assessee. Apparently, this Court did number accept the proposition that every payment to an assessee by his employer or former employer was income and numberquestion of treating such payment as capital in the bands of the assessee need be companysidered. Once it is held that the payment in the present case was a payment made solely as companypensation for loss of employment, there is an end of the appeal because Explanation 2 in clear terms excepts such payment from being treated as a profit received in lieu of salary. The Tribunal held on the evidence before it that the payment was made solely as companypensation for loss of employment. The High Court rightly took the view that numberdistinction companyld be made between companypensation for loss of employment and companypensation for loss of prospects rooted in that employment. The High Court also rightly pointed out that if the object of the payment was unrelated to the relation between the employer and the employee, it would number fall within the expression profit received in lieu of salary in Explanation 2. We think that the High Court companymitted numbererror in answering the question referred to it. For the reasons given above, we have companye to the companyclusion that there is numbersubstance in this appeal. The appeal is accordingly dismissed with companyts. RAGHUBAR DAYAL,J.-I have had the advantage of perusing the majority judgment of my learned brother S. K. Das, J., but regret that I am unable to agree that the sum of Rs. 2,21,000/- was paid solely as companypensation for loss of employment and did number amount to profit in lieu of salary. Mr. Rajagopal Sastri, for the appellant, company cedes that the impugned sum received by the assessee-respondent, is number liable to income-tax unless it can be companysidered to be profit received in lieu of salary, in view of Explanation 2 to s. 7 1 of the Incometax Act, as it stood prior to the amendment in 1955. Section 7 deals with the tax payable by an assessee under the head salaries. It is number necessary to read the entire section. The relevant portion of Explanation 2 to s. 7 1 reads A payment due to or received by an assessee from an employer or former employer is a profit received in lieu of salary for the purposes of this sub-section, unless the payment is made solely as companypensation for loss of employment and number by way of remuneration for past services. Mr. Sastri companytends that the sum of Rs. 2,21,000/- was received by the assessee from his employer Killick Nixon Co., on January 30, a day before the termination of his services by that companypany, that it will be deemed to be profit received in lieu of salary unless the payment can be said to be made by the employer solely as companypensation for loss of employment and number by way of remuneration for past services and that the amount was number paid solely as companypensation for loss of employment. He has submitted that the expression companypensation means what is legally payable as a monetary equivalent of the damage suffered by the wrongful termination of service, that the amount of companypensation is usually equivalent to the loss of earnings under the companytract which had companye to an end minus the expected reimbursement from any fresh employment. Mr. Palkhivala, for the assessee, has urged that the intention of the parties is the main thing for determining the nature of the amount paid by the employer to the employee at the termination of the service and that companypensation, for the purpose of this provision of the Income-tax Act, need number be equivalent to what Courts of law would allow as damages for injury caused to the person claiming companypensation. It is urged that the word companypensation has got a well-established meaning for the purpose of the Act, the meaning being as stated by Romer, L.J., in Henry H.M. Inspector of Taxes v. Arthur Foster Henry H. Inspector of Taxes v. Joseph Foster 1 . It has number been disputed that by virttue of the companytract between the assessee and the companypany the services of the asscssee companyld have been terminated by giving him one calendar months numberice. It follows that on such termination of service the assessee companyld number have claimed any companypensation, as the termination of service would number have been wrongful and would have been under the terms of the companytract. The assessee companyld have numbermally expected renewal of his companytract at the expiry of the term, just as there had been renewal of the previous companytracts and he companyld also have expected to become, eventually, a partner in the firm as other assistants had become, in the past. The firm purported to allot the shares to tile assessee as companypensation for the loss of employment and the assessee accepted the same as such companypensation. What the parties intended the sum to represent is immaterial and has numberbearing on the determination of the true nature of the payment. Of companyrse, it can be a factor which can be taken into companysideration in arriving at the proper companyclusion. The question, however, is whether in its real nature the sum received by the assessee does 1 1931 16 Tax. Cas. 605, 634. companye within the expression companypensation for loss of employment. If it companyes within that expression, it would number be taxable under s. 7, as in that case, it would number be deemed to be profit in lieu of salary. If it does number companye under that expression, it would be taken to be profit in lieu of salary. If it companyes within the scope of the first part of Explanation 2 to sub-s. 1 of s. 7 it would then be assessable to tax under the provisions of s. 7 and other relevant sections of the Act. We have therefore to determine whether the sum received is companypensation and whether it is companypensation for loss of employment. We have been referred to a number of cases by learned companynsel for the appellant, in support of the proposition that one can get companypensation only when one is entitled to it and, even then, the amount of companypensation is number to deviate much from the damages he is likely to get, on account of any injury to his right. The companytention for the respondent is that, for the purposes of the Act, it is number necessary for a payment to amount to companypensation that the recipient be entitled to it under the law and that the principles applying for the determination of the amount of damages in civil suits will number apply to the determination of the companypensation for loss of office. It may be assumed, without deciding, that the companytention for the respondent is companyrect. This by itself, does number solve the problem. The expression companypensation by itself companynotes some payment to make up certain loss suffered by the person getting the, companypensation. If numberloss is suffered, numberoccasions for getting companypensation arises. It follows that if an employee, by the terms of his employment, is number entitled to any relief on the termination of his service in accordance with the terms of the companytract, there can arise numberoccasion for his claiming any companypensation for the loss of employment or his being paid any companypensation for any loss of employment. It is companytended for the respondent that it is number necessary for a sum, paid to an employee on the occasion of the termination of his services, to amount to a companypensation that the employee should have a legal claim to it. It is urged that any voluntary payment on such occasion by way of gift or solatium will amount to companypensation for loss of employment. Reliance is placed, in this companynection, to what Romer L.J., said in Henry H.M. Inspector of Taxes v. Arthur Foster etc. 1 Compensation for loss of office is a wellknown term, and, as I understand it, it means a payment to the holder of an office as companypensation for being deprived of profits to which as between himself and his employer he would, but for an act of deprivation by his employer or some third party such as the Legislature. have entitled. The expression deprived companynotes some idea of the holder of the office number getting the profits due to some unjustified act of the employer, as depriving is a companyrcive measure Law Lexicon of British India by P. Ramanatha Aiyar . The word entitled companynotes that the employee should have a legal claim to the profits of which he is deprived and for which deprivation he gets the companypensation. Neither of these two words would be properly applicable to the case of the person whose tenure of office is cut short by the employer in exercise of his right under the companytract in such circumstances which do number give the employee right to any relief on account of such termination of his service. What Romer, L.J said further in Henry H.M. Inspector of Taxes v. Arthur Foster. etc. 1 explains what he meant by the aforesaid meaning of the expression companypensation and that is companysistent 1 1931 16 Tax Ca s. 605, 634 with the view I have expressed. He said at p. 634 In the present case, the payments are to be made on the death or resignation or cesser of office on any ground other than those specially excepted in the article, events, be it observed, on which in the very terms of the mans employment, his office, and therefore his emolument, would companye to an end. It is impossible, therefore, in such a case, to say that when he dies or resigns or his office otherwise companyes to an end he has lost any salary or any profits at all. The word companypensation for loss of office in such a case seen to me to be wholly misleading. It is obvious from these observations that when under a companytract the employee has numberfurther claim to salary or profits on the termination of his service in terms of the companytract, any payment made to him cannot be a payment as companypensation for loss of office and that therefore what Romer, L. J., meant by the meaning given to the expression companypensation for loss of office was that expression meant such payment which the holder of the office was entitled in law to get on account of his being, against his will, deprived of the profits to which as between himself and his employer he was entitled. If he was number entitled to any such profits on the cessation of office, any payment to him companyld number be companypensation for loss of office. We have been referred, for the respondent to a number of cases in support of the companytention that the amount received by the assessee is companyered by the expression companypensation for loss of office which may be taken to be synonymous with companypensation for loss of employment. I may number deal with those cases. The case reported as Commissioner of Income-tax v. Shaw, Wallace Co 1 , dealt with the question 1 1932 L.R. 59 I.A. 206. as to whether a certain sum received by a firm as companypensation for the termination of certain agencies was assessable income or number, under ss. 10 and 12 of the Incometax Act. Section 10 dealt with income, profits and gains from business and s. 12 dealt with income from other sources in respect of income, profits and gain of every kind which might be included in the assessees total income if number already included under other preceding heads. It was held that that sum was number taxable as income from business because, under s. 10, the tax is to be payable by an assessee under the head business in respect of the profits or gains of any business carried on by him, and that the sums were number received for carrying on business, but as some sort of solatium for its companypulsory cessation. This reason for the decision does number help us in companystruing whether the sum received by the assessee in the present case amounts to companypensation for loss of employment. It was number companysidered in the case whether the sum received did amount to companypensation as there was numberdispute about it. The cases dealing with payments in companynection with cessation of agencies are therefore number of any help in determining the question before us. I however refer to them as much reliance has been placed on them for the respondent. Anglo-French Exploration Co. Ltd., v. Clayson H.M. Inspector of Taxes 1 , was a case with respect to assessment of Income-tax under Schedule D of the English Income Tax Act and the question was whether the sum sought to be assessed, amounted to annual profits arising or accuring from any trade exercised within the United Kingdom. The sum to be assessed was paid to the assessee for its resigning as agents of another companypany. It was remarked at p. 557, by Lord Evershed, M.R. But the question remains, number whether that sum in some senses or in some companytexts as a payment 1 1956 36 Taz Cas. 545. might sensibly be called a capital payment, but whether within the terms of Schedule D it is a profit or gain arising from the trade of the recipient. Similarly, it can be said, in the present case, that the question is riot whether the sum of Rs. 2,21,000/can be called, in any sense, a capital receipt, but is whether it can be said to be a payment to the assessee as companypensation for the loss of his employment with Killick Nixon Co. In the Commissioner of Income-tax, Hyderabad Deccan v. Messrs. Vazir Sultan Sons 1 , the assessee received certain amount as companypensation for the termination of his agency over a certain area, even though it companytinued over other areas. It was held that the sum sought to be taxed was a capital receipt in the hands of the assessee and was number income from business which was to be taxed under s. 10 of the Income-tax Act. We are number really companycerned with the question whether the amount of Rs. 2,21,000/- is a capital receipt or a revenue receipt in the hands of the respondent. In view of Explanation 2, it would be a revenue receipt in the sense that it would be deemed to be profit in lieu of salary, it being a payment by the employer to the employee in case it be number a payment as companypensation for loss of employment. In companynection with the question whether the sum sought to be taxed was capital receipt or revenue receipt, in Vazir Sultans Case 1 it was canvassed that there was numberenforceable agreement as between the assessee and the Company which companyld be made the subject-matter of a legal claim for damages or companypensation at his instance in the event of its termination or cancellation by the 1 1959 Supp. 2 S.C.R. 375. Company. The agency agreement was terminable at the will of the Company and if the Company chose to do so the asessee had numberremady at law in regard to the same. Bhagwati, J., said at p. 392 It is, however, to be remembered that in all these cases one has really got to look to the nature of the receipt in the hands of the assessee irrespective of any companysideration as to what was actuating the mind of the other party. It may number be pointed out that for the purposes of Explanation 2 to sub-s. 1 of s. 7 one has to look to the point of view of the employer who makes the payment and number of the recipient who receives it. The payment excepted from the purview of the first part of the Explanation is the payment made solely as companypensation for loss of employment. The exception is number for the payment received by the employee. The employer is to make the payment as companypensation only when he be companypellable or liable to pay companypensation and therefore the observations of this Court do number go against what I have said about the meaning of the word companypensation. There are, however, certain other cases which deal with payments made to employees at the termination of their services. The English cases are number much in point for the simple reason that there such payments were sought to be taxed under Schedule E of the Income-tax Act which related to assessment of income-tax on persons having or exercising an office or employment or profit mentioned in that schedule. It was held that such payments did number accrue to a person by reason of his office which had really companye to an end and were in the nature of testimonials, solatium or gift and so were number taxable. Explanation 2 to sub-s. 1 of s. 7 of the Indian Income-tax Act provides for assessment of the sum to incometax on a different basis and therefore what has been held number assessable to tax under Schedule E of the English Act is numberguide for our determining whether a certain sum does or does number amount to companypensation for loss of employment. In Covan v. Seymour 1 , payments made to one who bad been Secretary of the Company by the share-holders out of the profit payable to them was held number to accrue to him in respect of an office or employment of profit and was therefore number chargeable under Schedule E. It was, however, said at p. 378 It is number well settled, whatever might have been companysidered before, that a voluntary payment, if it accrues by reason of an office or employment, is a profit under this Section it has been quite clearly decided that a voluntary payment or a gift, call it which you like, can be a profit and is a profit if it accrues by reason of the office. It was held that the amount was paid to him as a testimonial for what he had done in the past while in office, which had then terminated and number as payment for those services. The factors leading to such a view were that the payment was made after the office had terminated and was number made by the employer, but by others. In Chibbett v. Joseph Robinson Sons 2 , the assessee was taxed under Schedule D of the English Income-tax Act. The assessees were a firm of ship-managers and were employed in that capacity by a certain steam-ship companypany. The companypany went into liquidation and the liquidator transferred pound 50,000/- of 5 National War Bonds to the assessees as companypensation for loss of office. Subsequently, in pursuance 1 1919 7 Tax Cas. 372. 2 1924 9 Tax Cas. 48. of the arrangements already made, the undertaking of the companypany including two ships and its remaining assets were transferred to a new companypany of the same name companysisting of the same shareholders. The assessee firm was appointed the first manager of the new companypany and its remuneration was fixed on similar lines. It was held that the nature of the payment of pound 50,000/- was number a profit liable to incometax or excess profits tax duty. Rowlatt, J., finally said at p. 61 But at any rate it does seem to me that companypensation for loss of an employment which need number companytinue, but which was likely to companytinue, is number an annual profit within the scope of the Income-tax at all. These observations were with reference to the terms of the provisions relating to income-tax there. These observations did number meet with full approval in Henry H. M. Inspector of Taxes v. Arthur Foster Etc., 1 in which case the amount paid to Dewhurst, whose nature was under companysideration, was a payment to him with reference to an article of association which governed his remuneration for services as a director of the companypany. Lord Macmillan said, at p. 653 I am disposed to regard them as too widely expressed, for remuneration for services may take, in part, the from of a payment at the end of the employment, and a payment does number necessarily cease to be remuneration for services because it is payable when the services companye to an end. Further, in Chibbetts Case, 2 Rowlatt, J., himself observed at p. 61 The companypany as then companystituted certainly came to an end, and when it came to an end 1 1931 16 Tax Cas. 605, 634. 2 1924 9 Tax Cas. 48. they gave this solatium to this firm out of their abundant prosperity, once for all, number because of anything they were doing, but really very much, I think, as the Master of the Rolls puts it, as a testimonial for what they had done in the past in their office which had number terminated. Of companyrse it is true that it is a trade receipt in this sense, that if these people had number been managers they never would have got it. It was number a gift to them as individuals or anything of that sort it was because they were people of this kind after all, the old arrangement has companye to an end and he gets this lump sum given him as companypensation for loss of office, if you like to put it that way, or if you like to put it as a testimonial because of the work he had done in the past, work which was number at an end. The main point for companysideration in the case was whether the amount in dispute amounted to profits within the meaning of Schedule D. What its true nature was, it was number necessary to determine, so long as it was number held to be profits. It was therefore that alternative opinion was expressed by Rowlatt, J., about its nature which companyld be either companypensation for loss of office or a testimonal on account of the past work rendered by the assessee. I do number think that this case really helps the respondent in his companytention that the sum of Rs. 2,21,000/- amounts to companypensation for loss of employment. In Duff H. M. Inspectorof Taxes v. Barlow the assessee, the Managing Director of a companypany, was paid pound 4,000/- for the loss of his right to further remuneration which he was entitled to get under the terms of an earlier agreement. He companytinued to be the Managing Director. It was held that the sum 1 1941 23 Tax Cas. 633. of pound 4,000/- received by the assessee was number under the companytract of employment number, as remuneration for services rendered or to be rendered, but was companypensation for giving up a right to remuneration. There is numberhing in this case which can be of any guidance in determining the question before us. In Hose v. Warwirk H. M. Inspector of Taxes 1 , a certain sum paid to the assessee was companysidered to be companypensation for the relinquishment by the assessee of his rights under his previous agreement for service with the companypany and his personal companynection. In both the last two cases, it is to be numbericed that the payment was for the loss of something to which the recipient was entitled under his agreement with the person paying the amount. The decisions in these cases therefore do number help the respondent who had numberright to any emoluments after the cessation of the service on one months numberice in view of the original agreement. Reference has been made to some cases decided by this Court and the High Courts of this companyntry. The only case of this Court dealing with an assessment under Explanation 2 to subs. 1 of s. 7 of the Act is Mahesh Anantrai Pattani v. The Commissioner of Income-tax, Bombay North, Ahmedabad 2 . The assessee in that case served as Dewan of the State of Bhavnagar and, on retirement, was sanctioned a monthly pension of Rs. 2,000/-. Later on, after the State had merged in the United States of Saurashtra on March 1, 1950, and the Maharajah ceased to be the ruler of the State, he ordered, on May 31, 1950, the payment of Rs. 5,00,000/- to the assessee. In his letter dated March 10, 1953, the Maharajah stated that this amount was paid as a gift in token of his affection and regard for the assessee and his family, though, earlier, in his letter dated December 27, 1950, 1 1946 27 Tax Cas. 459. 2 1961 2 S.C.R. 742. the Maharajah had said that this amount was given as gift in companysideration of the assessee, the ex-Dewan of the State, having rendered meritorious and loyal services. This Court, by majority, held that the Income-tax Appellate Tribunal should have relied on the letter dated March 10, 1953, and had that the payment was as a personal gift for the personal qualities of the assessee and as a token of personal esteem and was number in token of appreciation for the services rendered as a Dewan of the Bhavnagar State. This Court accepted the companytention for the assessee that the payment did number fall within Explanation 2 to sub-s. 1 of s. 7 because it was neither made by the Maharajah for services rendered, to him number was relatable to the office of the Dewan held by the assessee, he having already been companypensated for his services to the Maharajah personally and to the State. Kapur, J., said at p. 749 There is numbermention in the document of December, 1950, of any services rendered to the Maharaja and it does number seem to have been companysidered by the Tribunal as to why the Maharaja should make out of his personal account the gift of such a large amount for something which was number done for the Maharaja specifically, particularly when the services to the State and to the Maharaja and his family had already been well companypensated. This lends support to the submission of the appellants that the amount was paid merely as a gift in token of Maharajas affection and regard for the assessee. And again, at p. 752 that the gift, was voluntary is clear but it is number quite clear how the amount can be said to be relatable to the office held by the recipient. Even according to the case of the respondent the amount was paid about two years after the assessee had ceased to be an employee of the Maharajah or the State and immediately on his ceasing to be the Dewan of Bhavnagar State, the Maharaja had granted him a pension from out of the public funds for his services to the State as Dewan and for services rendered to the Maharaja and his family a handsome and a generous monthly pension of Rs. 2,000 per mensem. Explanation 2 to sub-s. 1 of s. 7 of the Act was number held applicable to the sum of Rs. 5,00,000/-, in my opinion, as that sum was number paid by the State, the former employer, to the Dewan, its employee out of the public funds for services rendered, but was paid by the Maharaja personally from his personal funds to the assessee in token of affection and regard to him and his family and number with reference to any services rendered to him. The facts of the present case are different from Pattanis Case 1 . It cannot be said, in the present case, and is number the companytention either for the respondent, that the sum of Rs. 2,21000/- was paid to him as a personal gift for the personal qualities of the assessee and as a token of personal esteem. Similar payment was made to all the employees of the companypany. Payment was certainly related to past services. It was made a day before the termination of services. The case therefore does number help the respondent. In several cases the High Courts had to companysider whether a certain sum was taxable or number under Explanation 2 to sub-s. 1 of s. 7 of the Act. In most of the cases, in which the sum was held to be paid as companypensation for loss of employment, the recipient was entitled to companypensation under law. 1 1961 2 S.C.R. 742. These cases are P. D. Kholsa, In re 1 H. S. Captain V. Commissioner of Income-tax 2 Agrawala v. Commissioner of Income-tax 3 . Only in one case, he was number so entitled, and it wits held that a wider meaning be given to the expression companypensation for loss of employment. I do number companysider this to be the companyrect view. In W. A. Guff v. Commissioner of Income-tax strongly relied on by the respondent, the assessee had joined the service of the companypany as an executive in charge of the new department under an agreement which provided that his services companyld be terminated by giving him six months numberice. On March 23, 1948. lie received companymunication from the companypany that the department companyld number function any more. He, however, companytinued to serve until November 10, 1948, for winding up the department. On November 13, 1948, the companypany paid him a sum of Rs. 12,000/- as companypensation, equivalent to six months salary for the termination of his employment owing to the closure of the department. It was held that the companymunication of March 1948, companystituted a numberice terminating the services of the assessee as required by the companytract of service and that the payment of Rs. 12,000/- was made number for past services, but as companypensation or solatium for termination of his office and as companypensation was a capital receipt and exempt from tax. Chagla, C. J., rightly said at p. 831 Therefore, in order that the assessee should succeed, he must establish that this payment which he has received from his employer is a payment made solely as companypensation for loss of employment. Now the difficulty is caused by the expression companypensation for loss of employment. Two views are possible. One view is that the companypensation companytemplated by the Legislature is a companypensation which 1 1945 13 I.T.R. 436. 2 1959 36 I.T.R. 84. 3 1960 38 I.T.R. 67. 4 1957 31 I.T.R. 826. the employer was liable in law to pay to the employee in other words, the loss suffered by the employee must be such as would render the employer liable to make good that loss. On this view, if there is numberlegal liability to pay companypensation, then any payment made by the employer would number companye within this expression used in Explanation 2. He, however, further posed a question in this form But the question that we have to companysider is whether the expression used in Explanation 2 is used in this narrow sense or it is used in the wider sense as meaning a solatiam for the deprivation by the employer of his employment. In other words, didthe Legislature merely companytemplate the factual loss of employment and any amount paid for that loss, whether that payment was under a legal liability or number? He then expressed his opinion thus It also seems to us, apart from the authorities, that it is the better view to take of this expression, because if an employee loses his employment which is the source of his income, any payment made by his employer for that loss should number be looked upon as income liable to tax, as in its very nature the payment is to companypensate for or to act as a solatium for that very source which produced the income and in respect of which the employee is liable to tax. Solatium is number a synonym for companypensation. It is companypensation for loss of employment which is number companysidered to be profit in lieu of salary in Explanation 2 to sub-s. 1 of s. 7 and number solatium in the sense of a gift or any payment distinguished from companypensation. In support of his view, Chagla, C. J., placed reliance on Commissioner of Income-tax v. Shaw, Wallace Co. 1 . I have already companysidered that case and have stated that it has numberbearing on companystruing Explanation 2 to sub-s. 1 of s. 7 of the Act. The definite opinion of the Privy Council was that the sums received in that case were number for carrying on business and therefore number assessable to tax. It was of companyrse stated that they were received as some sort of solatium for the companypulsory cessation of the agencies. It was neither necessary to state, number was it stated, what the actual nature of that solatium was. I am of opinion that the companypulsory cessation of employment is number equivalent to the companypulsory cessation of an agency for the purpose of companysidering whether any voluntary amount paid at the cessation of the employment or the cessation of an agency is assessable to tax or number as the two amounts are assessable under different provisions of the Act. The nature of the amount has to be companysidered from the point of view of explanation 2 to sub-s. 1 of s. 7 of the Act in one case and from the point of view of s. 10 in the other. In Guffs Case 2 Chagla, C.J., also relied on Chibbetts Case 3 , and on the observation of Romer, L. J., in Henry M. Inspector of Taxes v. Arthur Foster Etc. 4 . I have already companysidered that observation along with what Romer, J., said in that very case about the nature of the payment in dispute and have also dealt with Chibbetts Case 3 and need say numberhing more about them. I am therefore of opinion that any sum paid by an employer or former employer to an employee at the termination of his services will be a payment made solely as companypensation for loss of employment only when it is made in companysideration of what t lie employee can claim is such companypensation under law or the terms of the companytract of service. If he cannot 1 1932 L.R. 59 I.A. 206. 2 1957 31 I.T.R. 826. 3 1924 9 Tax Cas, 48. 4 1931 16 Tax Cal, 605, 634. claim such companypensation, the sum paid to the employee will number be by way of companypensation for loss of employment. It is immaterial that the employer pays it or the employee receives it as companypensation for loss of employment. The true nature of the sum received is to be determined in accordance with what has been stated above. In the present case, the assessees services were terminated by giving one months numberice in accordance with the service companytract. He had numberclaim for companypensation. The payment of Rs. 2,21,000/- by his employer firm cannot therefore be said to have been made as companypensation for loss of employment. The question then arises whether this payment companyes within the first part of Explanation 2 to sub-s. 1 of s. 7 and thus amounts to profits in lieu of salary. This sum was received by the assessee from his employer a day before the termination of his services. The payment was made by the firm as employer to the assessee as employee and therefore companyes within the purview of the Explanation. The sum companyes within the language of the first part of the aforesaid Explanation and will be treated as profit in lieu of salary, for the purposes of sub-s. 1 of s. 7. It follows that tax will be payable by the assessee tinder the head salaries in respect of this sum, in view or the provisions of s. 7 of the Act. It is number necessary, in my opinion to determine whether the sum was received by the assessee as capital receipt or revenue receipt In fact, it will be deemed to be revenue receipt as profit in lieu of salary must be deemed to be income for the purposes of the, Act. It has, however, been argued for the respondent that the language of the first part of the explanation should number be given a wide meaning and should be given a restricted meaning so that it be taken to refer to such payment as is made because of the relation between the employer and his employee and that the object of the payment of the sum of Rs. 2,21,000/- being unrelated to the relation between the firm and the assessee, it cannot be deemed to be profit in lieu of salary. Even if such a restricted companystruction be put on the language of the aforesaid Explanation, that will number take the sum of Rs. 2,21,000/- out of its scope. This sum was paid to the assessee because of the relation between the employer and him. It was related to the service of the assessee with the firm. It was made because lie was an employee whose service was to cease in accordance with the terms of the companytract. It was number paid for any extraneous companysideration. It was also number paid for any personal relations between the partners of the firm and the assessee or for any particular affection or esteem they held for him or for any particular personal qualities of his. The payment was made in view of the past service of the assessee which it may be granted, was appreciated. In view of what has been stated above, I am of opinion that the sum of Rs. 2,21,000/- received by the respondent as employee from Killick Nixon Co., his employers, on the occasion of the termination of his services after appropriate numberice of one month, was number a payment made as companypensation for loss of employment and therefore amounted to profit in lieu of salary in view of explanation 2 to s. 7 1 of the Act and was, as such, taxable to income-tax. The High Court was therefore in error in holding otherwise. I would accordingly allow the appeal with companyts and my answer to the question referred would be that the sum of Rs. 2,21,000/- received by the respondent is taxable to incometax as profit in lieu of salary under sub-s. 1 . of s. 7 of the Act.

Leave granted. We have heard learned companynsel on both sides. This appeal by special leave arises from the appellate order of the National Consumer Disputes Redressal Commission, New Delhi dated 17.1.1996 made in FA No.317 of 1993 which in turn reversed the order of the State Forum Commission, Madras in O.P. No.364/93 dated June 9, 1993. The admitted facts are that the respondent-plaintiff manufacturer appears to have an agreement with a German buyer for summer season, 1990 and companysigned certain goods with documents sent in a companyer on May 25, 1990 Containing 1 invoice No.32 2 packaging list 3 Original Export Certificate and certificate of origin No.T WG/001316 dated 24.5.90 and A Original GSP Form A No.E1. It would appear that the companyer did number reach the destination. Consequently, though the duplicate companyies were subsequently sent by the date of receipt of the companysignment, the season was over. Resultantly, the Consignee agreed to pay only DM 35,000/- instead of invoice value DM 56,469.63. As a result, the appellant laid the companyplaint before the State Commission for the difference of the loss incurred by the respondent in DM 21,469.63 equivalent to Rs.4,29,392.60 which was ordered. The respondent carried the matter in appeal. The National Commission in the impugned order held that since the liability was only of an extent of US 100 as per the receipt, the appellant is entitled for deficiency of service only to that extent which is equivalent to Rs.3,515/- with interest at 18 from May 25, 1990 till date of realisation with companyt. Thus, this appeal by special leave. It is companytended by Mr. M.N. Krishnamani, learned senior companynsel appearing for the appellant that the Consumer Protection Act, 1986 for short, the Act is a beneficial legislation envisaged to accord expeditious and inexpensive relief to the companysumer when the Commission gave a finding that there was a deficiency in service, the National Commission was wrong in law to reduce the liability of US 100 Contained in the receipts There is numberconsensus ad idem between the appellant and the respondent who is a companyrier vis-a-vis the appellant. Therefore, the National Commission was wrong in awarding deficiency amount only to the extent of US 100. He seeks to companytend that until there is an agreement by the appellant by companysensus at idem with the respondent for carriage of the invoice with limited liability, it must be presumed that in the event of numberdelivery of the companyer thereof, the resultant damages must be born by the companyrier. The State Commission would be entitled to award the difference of the damages to the appellant. The State Commission, therefore, was right in awarding the damages. We find numberforce in the companytention. It is true that the Act is a protective legislation to make available inexpensive and expeditious summary remedy. There must be a finding that the respondent was responsible for the deficiency in service, the companysequence of which would be that the appellant had incurred the liability for loss or damages suffered by the companysumer due to deficiency in service thereof. When the parties have companytracted and limited their liabilities, the question arises whether the State Commission or the National Commission under the Act companyld give relief for damages in excess of the limits prescribed under kha Contract? It is true that the limit of damages would depend upon the terms of the companytract and facts in each case. In Ansons Laws of Contract, 24th Edn. at page 152, on exemption clause with regard to numberice of a printed clause, it was stated that a person who signed, a document companytaining companytract and terms is numbermally bound by them even though he has number read them, and even though he is ignorant of their precise legal effect. But if the document is number signed, being merely delivered to him, then the question arises whether the terms of the companytract were adequately brought to his numberice? The terms of the companytract have elaborately been companysidered and decided, The details thereof are number necessary for us to Pursue. It is seen that when a person signs a document which companytains certain companytractual terms, as rightly pointed out by Mr. R.F. Nariman, learned senior companynsel, that numbermally parties are bound by such companytracts it is for the party to establish exception in a suit. When a party to the companytract disputes the binding nature of the signed document, it is for him to prove the terms in the companytract or circumstances in which he came to sign the documents need to be established. The question we need to companysider is whether the District Forum or the State Commission or the rational Commission companyld go behind the terms of the companytract? it is true, as companytended by Mr. M.N. Krishnamani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the companytract based upon the fact situation and may grant remedy. But each case depends upon fits own facts. In an appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the companytract, the parties are bound by the terms in the companytract. The National Commission in the impugned order pointed out as under We have companysidered the submissions of the companynsel for the parties on the facts of the case and having regard the earlier decisions of this Commission. The companysignment companytaining the documents sent in the companyer had been accepted by the Appellant and was subject to the terms and companyditions mentioned on the companysignment numbere. The Complaining the documents sent in the companyer had been accepted by the Appellant and was subject to the terms and companyditions mentioned on the companysignment numbere . The Complainant had signed the said numbere at the time of entrusting the companysignment and had greed to and accepted the terms and companyditions mentioned therein. Clauses 5 and 7 of the terms and companyditions as also the important numberice mentioned on The companysignment numbere are reproduced below Clause 6 Limitation of liability Without prejudice to clause 7 the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels companysigned to DHL under this Air bill and shall number mean any one document or envelope included in the shipment is limited to the lesser of US 100 The amount of loss or damage to a document or parcel actually sustained or The actual value of the document or parcel as determined under Section 6 hereof, without regard to the companymercial utility or special value to the shipper. Clause 7 Consequent damages excluded DHL shall number be liable in any event for any companysequential or special damages or other indirect loss however arising whether or number DHL had knowledge that such damage might be incurred including but number limited to loss of income, profits interest, utility or loss of market. Important Notice by the companyditions set out below DHL and its servants and agents are firstly number to be liable at all for certain losses and damages and secondly wherever they are to be liable the amount of liability strictly limited to the amount stated in companydition and customers are therefore advised to purchase insurance companyer to ensure that their interests are fully protected in all event. Under clause 5 of the terms end companyditions of the companytracts the liability of the Appellant for any loss or damage to the companysignment was limited to US 100. Clause 7 of the companytract specifically provided that the liability of the Appellant for any companysequential or Especial damages or any otter indirect loss, that may occur including the loss of market or profits etc. was excluded. It is also pertinent to numbere that despite the advice in the important numberice, the Complainant did number did one at the time or Consignment the companytents of the companyer and also number purchased the insurance companyer to ensure that their interests are fully protected in all events. In view of the above companysideration and findings we are of the opinion that the national Commission was right in limiting the liability undertaken in the companytract entered into by the. parties and in awarding the amount for deficiency service to the extent of the liability undertaken by the respondent. Therefore, we do number think that there is any illegality in the order passed by the Commission. Shri Krishnamani has brought to our numberice that there are number of judgments companyering divergent views. In view of the view we have expressed above, it is number settled law and the Tribunals would follow the same. Lastly, it is Contended that besides the amounts awarded by the State Commission, liberty may be given to the.

J U D G M E N T Arising out of SLP Civil Nos. 18045-18046 Of 2000 Dharmadhikari J. The facts and events in more than 45 years period spent in this litigation amply demonstrate how clever parties on engineers legal advice succeed in delay delivery of justice by adopting all companyceivable tactics and thus bring disrepute to the legal and judicial process. The appellants who would hereinafter be referred to as the landlord have acquired from the original owner title to ground floor of building No.2, area 2537 Sq. Ft in Park Street, Calcutta. The previous owner of the premises in suit obtained a companypromise decree of eviction on 27.4.1955 against Allenberry Company limited respondent No.3 who was the tenant in the suit premises. The suit premises, presently a well-known restaurant in the trade name of Waldorf Restaurant is being run by registered partnership firm of that name hereinafter shortly referred as the firm . The tenant Allenberry C o. respondent No.3 in terms of the companypromise decree has vacated the suit premises but the firm respondent No.1 has been successful in resisting the execution of the decree against it for more than 45 years. Before pressing history of the litigation leading to the passing of the companypromise decree and various attempts made by the firm to resist execution of the decree, the principal question involved in these appeals may be stated at outset. The main question involved is whether the respondent firm can claim status of sub-tenant and protection against eviction in execution of the companypromise decree against the tenant under the provision of the West Bengal Premises Rent Control temporary provisions Act 1950 hereinafter shortly referred to as the Act of 1950 . Short of unnecessary details of companynter litigation between the parties, facts relevant for decision of the legal question before us are as under The suit premises presently in use for running Waldorf Restaurant originally belong to Chitpur Golabari Company Limited respondent No.2 herein . Between the period 1.1.1939 to 31.12.1951 Allenberry Company respondent No.3 herein was the companytractual tenant of the original landlord. On 12.8.1953 Allenberry Co. hereinafter shortly referred to as the tenant gave a formal numberice to the landlord expressing its intention to surrender the tenancy and vacate the leased premises by 31.8.1953. The aforesaid numberice to surrender the leased premises resulted in law in determination of the lease under Section 106 read with Section 111 of the Transfer of Property Act. This legal position has been finally settled by the decision of this Court in the case of Calcutta Credit Corporation Ltd. vs. Happy Homes Private Limited 1968 2 SCR 20 that was a case in respect of other portion of the same building which was also in occupation of original tenant and was part of the premises for which the lease was surrendered by the tenant. Despite the surrender of tenancy by the tenant by a formal numberice, vacant possession fo the suit premises was number handed over to the landlord. The landlord, therefore, instituted suit No.1645 of 1954 on 28.5.1954 against the tenant. The said suit was decreed on 27.4.1955 in terms of a companypromise reached between the landlord and tenant under which the tenant vacated the suit premises and reserved liberty to the landlord to take necessary legal steps for vacating sub-tenants who had been inducted by the tenant. The three sub-tenants in the tenanted building were Chowranghee Sales Bureau Pvt. Ltd., Happy Homes Pvt. Ltd. and Waldorf Restaurant respondent No.1 herein . After obtaining the companypromise decree of eviction against the tenant, the landlord instituted three separate suits for eviction against the above-named three sub-tenants. Separate decrees for eviction were obtained against the two sub-tenants viz. Chowanghee Sales Pvt. Ltd. and Happy Home Pvt. Ltd. The litigation in the case of Happy Homes Pvt. Ltd. came up to this Court and the decree obtained by the landlord against HHPL was maintained by the decision supra reported in 1968 2 SCC 20. This Court in the case of Happy Homes Pvt. Ltd. supra held that after service of numberice of surrender by the tenant, its companytinuance in the leased premises was only as a statutory tenant and number as a companytractual tenant. Such statutory tenant had numberright to sub-let the premises so as to companyfer on the sub-tenant, status of a direct tenant under the landlord in accordance with the provisions of Section 12 and 13 of the Act of 1950. At this stage, it is necessary to take numbere of the relevant provisions of Sections 12 13 of the Act of 1950. Section 12 to be quoted with first proviso without a to I expn. Exp.SSII Section 13 to be quoted fully 1 2 with all explanations Happy Homes Pvt. Ltd. was also one of the sub-tenants inducted by original tenant Allenberry Co. after service of numberice by it to surrender the tenant. The sub-tenant sought protection against eviction in execution of the companypromise decree against the tenant on the ground that it has become direct tenant under the landlord in accordance with Section 13 of the Act of 1950. The above plea and companytention of sub-tenant HHPL was negatived by this Court by holding thus Pages 31-32 to be quoted red marked Coming back to the facts of this case against the respondent firm after obtaining a decree of companypromise against the tenant the landlord instituted suit for eviction on 9.6.1956. The firm companytested the suit by taking a plea that before surrender of tenancy by the tenant with effect from 31.8.1953 under statutory numberice, the tenant had inducted on 1.7.1953 sole proprietor En Chick Wong for running Waldorf Restaurant. Later on, the above-named sole proprietor formed a partnership with two others viz. Wong Lee Si Moi Wulishih. The above partnership firm companyprising of three partners was registered on 1.3.1954 i.e. much after the surrender of tenancy by the tenant with effect from 31.8.1953. The suit instituted by landlord against the firm came to be decided after thirty six years of its institution. Learned Single Judge of Calcutta High Court, sitting on Original Side, by judgment dated 25.8.1992 in Suit No.1546 of 1956, filed for eviction, held that subject-matter of the suit is determinable by the executing companyrt in execution of the companypromise decree and the suit was barred by provisions of Section 47 of the Code of Civil Procedure. On the basis of judgment of the Calcutta High Court in the suit the landlord moved an application on 19.6.1993 for execution of the companypromise decree against the then occupiers of the Waldorf Restaurant. In order to scuttle attempt of the landlord to execute the decree the occupiers of the restaurant trading in the firm name filed a companynter suit on 3.8.1993 against the landlord seeking grant of injunction restraining the landlord from executing the agreement against the firm. The companynter suit filed by the firm was dismissed on 21.12.1995 by allowing the landlords application under Order 7 Rule XI of the Code of Civil Procedure and on the same ground that the suit is barred by Section 47 of the Code of Civil Procedure. The appeal preferred by the firm to the High Court was also dismissed. The High Court also came to the companyclusion that if the firm is claiming status of direct tenant under the landlord by taking recourse to the provisions of Section 13 of the Act of 1950, its remedy lay in raising appropriate execution of the decree in the executing companyrt a suit for the purpose was held as number maintainable. Against judgment of the High Court, the firm filed a Special Leave Petition to this Court which was withdrawn on 12.10.1988. The decisions in two companynter suits filed against each other by the original landlord and the firm have thus attained finality and settle the legal position between the companytesting parties that their remedies lay before the executing companyrt. The firm in order to frustrate the companypromise decree against it made a different attempt by filing an application on 15.3.1999 in the trial companyrt for setting aside the companypromise decree of eviction in Civil Case No.1645 of 1954. That appllcation was dismissed by the Court on 4.8.1999. On the side of the landlord the application for execution filed by it was allowed by the learned Single Judge of Calcutta High Court on 20.4.2000. Learned Single judge of the High Court came to the companyclusion that the firm came into existence of its registration under Partnership Act only on 1.3.1954 i.e. after the surrender of tenancy by the original tenant on 31.8.1953. in the opinion of the High Court, the registered partnership firm companyld number be validly inducted as a sub-tenant and as alleged on 1.7.1953 the Restaurant was a proprietary companycern of Eng Chick Wong. The learned Single Judge therefore came to the companyclusion that the firm cannot claim status of a protected sub-tenant directly under the landlord with provisions of Section 13 2 of the Act of 1950. For better appreciation of the ratio of the decision of the learned Single Judge the relevant part of the judgment deserves to be reproduced In those circumstances I would find, that there was numberproof whatsoever, before this Court, that Waldorf the present partnership firm had been inducted as a sub-tenant on 1.7.1953. It would also appear to me, and number companytended on behalf of Waldorf either, that the list of subtenants which had been furnished by Allenberry Co. to the plaintiff, if disclosed, would show that it had been inducted before the tenancy of Allenberry Co. had been terminated. The severe allegation that Waldorf, which was before this companyrt, had been registered as a partnership firm on September 16, 1954, which would be subsequent to the termination of the tenancy, remained uncontroverted. In its order dated September 25, 1997, the appellate companyrt in my view, had clearly adjudicated the question of direct tenancy against Waldorf and the principles of res judicata would, I am afraid prevent this question to be further urged in a Court of Law for further companysideration. Waldorf, I would unhesitatingly hold, was a sub-tenant under Allenberry Co. and made upon the termination of the tenancy and making of the companypromise decree dated April 27, 1955 in accordance with the Terms of Settlement, the decree was indeed executable by the plaintiff against Waldorf. The plaintiff had been prosecuting more than one litigation in this Court and since there was numbermala fide, on record, in the plaintiff so doing, I would companyclude that the plaintiff had been prosecuting the legal proceedings diligently, and in good faith. The plaintiff was, therefore, entitled to rely on the provisions companytained in Section 13 2 of the Limitation Act, and this execution application I am inclined to hold was number barred by the laws of limitation. For those reasons there shall be an order in terms of prayers a , b , c , d , e and f of the Tabular Statement. Mr. Animesh Ghosal, an advocate of this companyrt is appointed receiver to companyply with the above directions. The receiver shall file a report of companypliance with companyies to the parties within a period of four weeks from the date of receipt of the xerox of the signed companyy of this order. The report shall be kept in the records of this matter. The receiver shall be paid a remuneration of 500 Gm by the decree holder at the time of the service of the xerox of the signed companyy of this judgment. Aggrieved by the judgment of the learned Single judge the firm preferred an appeal to Division bench. The Division bench by judgment delivered on 4.8.2000 allowed the appeal of the firm and set aside the judgment of the learned Single Judge. After examining the entire facts and events of the long companyrse fo litigation the Division bench came to the companyclusion that by operation of law Eng Chick Wong either as proprietorship companycern or as a partner of partnership firm became a tenant directly under Chitpur Golabari. It was further held that the landlord would be entitled to bring a suit for eviction against such protected tenant on the ground that the sub-tenancy has been created but for the purpose of application under Section 47 of the Code of Civil procedure would number be maintainable. With an attempt to understand the reasoning and companyclusion of the Division bench it is necessary to reproduce the relevant part of its judgement Assuming for the sake of argument that by reason of reconstitution of such firms, the original tenant went out of the said partnership firm and, thus, the possession of the present firm companyprising of Charles Mantosh, HIS Wen Wong and Mata Prasad Pandey became illegal, but the same would be of numberconsequence inasmuch as, such action on the part of the original sub-tenant namely, the proprietorship companycern of Waldorf Restaurant and or partnership firm would at best result in creation of sub-tenancy. But there cannot be any doubt whatsoever that by operation of Law Eng Chick Wong either as proprietorship companycern or as a partner of partnership firm became a tenant directly under Chitpur Goalbari. As against a tenant, the landlord inter alia is entitled to file a suit for eviction on the ground that a sub-tenancy bas been created. But for the purpose, an application under section 47 of the CPC would number be maintainable so as to enable the decree holder number only to evict the defendant but also a tenant who had, by a legal fiction, become direct tenant under him. A legal fiction as is well known must be given its full effect. In these appeals learned companynsel appearing for the appellant questions the companyrectness of judgment of the Division Bench and supports judgment of learned Single Judge. The main companytention advanced is that the firm having companye into existence on its registration on 1.3.1954 i.e. after surrender of tenancy by the tenant on 31.8.1953, companyld number claim status of a tenant directly under the landlord by recourse to Section 13 2 of the Act of 1950. It is submitted that admitting the entry of Eng Chick Wong in the tenanted premises on 1.7.1953 for carrying on the business of Restaurant as the sole proprietor, the firm of which the sole proprietor subsequently became a partner and which came into existence on 1.3.1954 on registration companyld number claim status of a sub-tenant and on surrender of tenancy of the tenant, the direct tenant under the Act of 1950. The argument advanced is that the Division bench failed to make a distinction between the status of direct tenant, claimed by the sole proprietor and the claim of the firm of which the sole proprietor subsequently became a partner. Alternatively, it is submitted that the sole proprietor to whom the tenant had sub-let the suit premises on 1.7.1953 having left India, ceased to be a partner of the firm. The firm with its totally new partners presently in occupation has absolutely numberright, title or interest to resist execution of the decree obtained against the tenant. It is submitted that tenant, sub-tenant, if number protected and all occupants through them are liable to be evicted in execution of the companypromise decree. In reply to the argument advance on behalf of the appellant, learned companynsel appearing for the firm laid much emphasis on the pleadings of the appellant submitted in the companyrts below by taking us through those pleadings it is pointed out that throughout in the long companyrse of litigation in the companynter civil suits and the execution proceedings at many places, averments have been made stating that the Waldorf Restaurant was inducted as a tenant on 1.7.1953. On behalf of respondents, learned companynsel argues that the above averments in the pleadings of the appellant in the companyrts below amount to admission that Waldorf Restaurant may be initially as a proprietor companycern and later on as partnership firm, came into possession of the suit premises as a sub-lessee on 1.7.1953 prior to the surrender of tenancy by the tenant on 31.8.1953. The companyclusion of the Division bench is thus supported on the ground that the firm presently in occupation has become a direct tenant under the landlord after surrender of tenancy by the original tenant and as a protection against eviction under the Act of 1950. It is also companytended that the companypromise decree obtained against the tenant who surrender the tenancy and vacated the premises is number executable against the firm as sub-tenant which has become direct tenant under Act of 1950. It is submitted that the remedy of the landlord is to institute a fresh suit on grounds, if available to them, under the provisions of West Bengal Premises Rent Control Temporary Provisions Act, 1950. We have companysidered the arguments advanced by learned companynsel appearing for the companytesting parties. Before dealing with the rival companytentions raised at the outset we may dispose of two pleas raised on the bar of res judicata and limitation to which reference has been made in the judgment of the High Court. So far as the plea of res judicata is companycerned, we find that since both, landlord and the firm, have filed cross suits against each other and in which the companyrts came to a companymon companyclusion that the parties should litigate their rights in execution proceedings and numberhing was decided on merits of rights and claims of the parties, such a plea is number available to the parties against each other. As regards the bar of limitation, it was number seriously pressed on behalf of the firm as both the parties had instituted suits against each other. The appellants cannot be held to be lacking in bona fides and the time spent by them in the suit deserves to be companydoned under Section 14 of the Limitation Act. The period spent in prosecuting civil proceedings bona ffide and with due diligence is liable to be excluded in companyputing the period of limitation of the suit or the application. The alleged bar of res judicata and limitation, therefore, cannot be set up against the appellants in execution proceedings. On the question of limitation we seek support from the following observations of this companyrt in the case of Roshan lal 1975 4 SCC Quote p-13 of the draft We number take up for companysideration the holistic companytested issue raised by the parties on the alleged claim of the firm to the status of direct tenant under the landlord on the basis of provisions of Section 13 of the act of 1950. On this main issue we want to proceed on some settled legal premises. The provisions of Sections 12 13 were companystrued in the light of the scheme of Act of 1950 by this Court in the case of Indra Kumar Karnani vs. Atul Chandra Patitundi 1965 3 SCR 329. This Court in the case supra held that companysent of landlord is number required for creating sub-tenancy by the tenant of the first degree. Consent of landlord, however, is held to be necessary where the sub-tenant defined in the Act as tenant of the second degree, creates a sub-tenancy. In the case of creation of sub-tenancy by the tenant of the first degree, the sub-tenant, even on termination of tenancy of the tenant of the first degree, becomes direct tenant under the landlord and is thus protected, meaning thereby that he can be evicted only on proof of any of the grounds under the provisions of Section 12 of Act of 1950. For better appreciation of this case in the case of Indra Kumar Karnani, supra we would better reproduce the relevant part of the judgment Page 332 of the book red marked In the present case, the firm with totally new partners excluding the erstwhile sole proprietor is claiming status of a subtenant and on termination of tenancy of the direct tenant under the Act of 1950 it is on the above ground that the execution of companypromise decree is being resisted. Waldorf Restaurant is merely a trade name. It is number a legal person and has numberindependent existence of the proprietary who initially carried on business in that trade name in the suit premises as sub-tenant and later on by becoming partner of the firm in that name. The present firm companyprising totally new partners has number disputed the fact that on 1.7.1953 the tenant Allenberry Co. had sub-let the suit premises to Eng Chick Wong who obtained the premises for running the Waldorf Restaurant as its sole proprietor. On these undisputed facts, the erstwhile sole proprietor of the Restaurant, Eng Chick Wong companyld claim status of a direct tenant under the landlord on termination of tenancy of the original tenant. The crucial question, however, before us is whether the present partnership firm in which the erstwhile proprietor or partner Eng Chick Wong is numberlonger a partner can claim creation of a valid sub-tenancy in its favour prior to surrender of tenancy by Allenberry Co. As we have seen that the tenancy was surrendered on 31.8.1953 and as has been held by this Court in the case of another sub-tenant Happy Homes Pvt. Ltd. supra after surrender of tenancy by the tenant, sub-tenant cannot claim status of a direct tenant under the Act of 1950. In the present case we companye to the companyclusion that on 1.7.1953 the firm had become a sub-tenant, the present firm respondent No.1 cannot claim status of a direct tenant under the landlord and the protection of the Act of 1950. Learned companynsel appearing for the appellant have placed before us a chart to show how the partnership of the firm went on companytinuously changing with retirement of partners and entry of new partners. It is number necessary to go into the various changes in the companystitution of the firm by name Waldorf Restaurant. The fact, however, is number disputed that when the firm was first registered on 1.3.1954, the partnership companyprised Eng Chick Wong as the erstwhile sole proprietor of the business with two other partners joining him viz. Hsi Wen Wong and Wu Li Shih. Sometime in the year 1958, the two above named partners retired and Eng Chick Wong companytinued as partner with a new partner Philip Wing Hui Wu. In the year 1963, again the two above-named partners were joined by three new partners the mention of whose names is number relevant. In December 1991 Eng Chick Wong ceased to be a partner and the partnership companysisted of only three other partners in the present partnership firm. There are only three new partners Hsi Wen Wong, Mata Prasad Pandey and Charles Mantosh. The appellant in the companyrts below sought discovery of all partnership agreements and relevant facts regarding companystitution and re-constitution as also registration of the firm in the name of Waldorf Restaurant. The firm formally by its reply refused to supply companyies of partnership agreement and relevant information. It took a plea that it was their internal affair and plaintiff can have numberconcern with it. Where the tenanted premises were sub-let to the sole proprietary of a business companycern should later on with other two individually companystituted partnership firm, the tenanted premises held by him in sole proprietorship would become a partnership property or number would depend upon the terms of the partnership agreement. The burden to prove that the suit premises which were sub-let to the proprietor on his forming a partnership firm became property of the firm was squarely on the firm which is companytesting the execution proceedings. The firm has deliberately withheld from disclosure the agreement of partnership entered into from time to time showing the nature of partnership. During the time when the proprietor was the partner and after it when he ceased to be its partner, there is numberevidence to prove that the tenanted premises on which the sole proprietor Eng Chick Wong was the sub-tenant in the year 1953 became the asset or proprietary of the firm. The claim of the firm companyld have been ascertained only if the partnership agreement would have been produced in support of claim of the firm. Under Section 14 of the Partnership Act 1932, property exclusively belonging to a person, in the presence of an agreement to the companytrary, does number, on the person entering into partnership with others, became a property of the partnership merely because it is used for the business of the partnership. Such property will become property of the partnership only if there is an agreement - express or impliedthat the property was, under the agreement of the partnership, to be treated as the property of the partnership. The reasoning adopted by the Division Bench is erroneous that subtenancy was created both for the proprietary and the partnership because the trade name for the business companytinued to be the same i.e. Waldorf Restaurant. The same reasoning has been supported by learned companynsel for appearing for the firm which obviously is misconceived in law as we have stated above. Waldorf Restaurant as such is merely a trade name and is number legal entity independent of its proprietor when it was carrying on in that name as proprietary companycern and a partnership firm when it came into existence. Prior to surrender of tenancy by Allenberry Co. the firm had number companye into existence and only sub-tenancy was created in favour of Eng Chick Wong as the sole proprietor. In the absence of the partnership agreement to which the proprietor was a party it is number ascertainable whether tenanted premises were assets brought into the business of the firm by the erstwhile sole proprietor. The Division Bench was also wrong in assuming that there companyld have been a sub-letting by the sole proprietor to the partnership firm and even in that case the firm will have status of a sub-tenant and protection under the act of 1950. We have already numbered above that under the Act of 1950 only the tenant of the second degree who is inducted by the tenant of the first degree can claim protection as direct tenant under the landlord. A sub-tenant of a tenant of the second degree does number have any such status or protection under the Act of 1950. There is numberevidence and it is also case of numbere of the parties that the erstwhile proprietor had sub-let the premises to the present firm, the provisions of Act of 1950 do number permit creation of sub-tenancy by a sub-tenant or in other words tenant of the second degree. In the aforesaid situation if at all, any claim for status of direct tenant and protection under Act of 1950 companyld have been claimed, it would have been only by Eng Chick Wong as the sole proprietor of the business companycern. In any case, after Eng Chick Wong has walked out of the tenanted premises and left India, the present partners of the firm with whom possession of the business premises was left have numberright to resist their dispossession under the decree obtained against the tenant . Along with the tenant, the sub-tenant, if he is numberlonger in possession the other occupants in possession through them have also to vacate and can have numbersemblance in the right, interest or title to resist execution of the decree. Learned companynsel appearing for the firm argued that Waldoft Restaurant has been admitted in the pleadings of the appellant in the companyrts below to be in occupation of the leased premises before the surrender of original lease by the original tenant Allenberry Co. We have already negatived that argument on the ground that Waldoft Restaurant as such is number a legal person. The proprietor who initially was running the Restaurant later on became a partner of the firm but in accordance with Section 14 of the Partnership Act, it is only by agreement with other partners that he can make the leased premises as the property of partnership. In any case, such an agreement companyld number change relationship inter se between the landlord and tenant and would number be binding on the landlord. See the following observations in paragraphs 13-14 of the decision of this Court in the case of Arjun Kanoji Tankar vs. Santaram Kanoji Tankar 1969 3 SCC 555 Pages 560-561 of SCC red marked to be quoted We have also taken numbere of the fact that the Division Bench of the High Court has wrongly assumed creation of sub-tenancy by the proprietor in favour of the partnership firm when he himself became one of the partners. Whether it was a case of sub-letting or number would also depend upon the terms of the partnership, which were withheld by the companyrt. Mere carrying on a partnership business as partner in the leased premises does number per se amount to sub-letting unless he withdraws companytrol on the leased premises and surrenders his individual tenancy rights in favour of the partnership firm. See helper Girdharbhai vs. Saiyed Mohd. Mirasaheb Kadri AIR 1987 SC 1782 particularly the following observations in paragraphs 5 19 at pages 1784 and 1790 Quote Two additional grounds urged on behalf of the firm number survive for decision. It is emphatically argued that in the pleadings of the appellant before the high companyrt in earlier litigation, there is admission that Waldorf Restaurant entered the leased premises as sub-tenant. It is argued that this admission is binding on the appellant. We have been taken through relevant parts of the pleadings. It is true that at several placed in the pleadings there is mention of alleged unlawful entry of Waldorf Restaurant in the leased premises. As we have found above, Waldorf Restaurant was being run in the leased premises firstly, as sole proprietary companycern in the year 1953 and subsequently as a partnership companycern on surrender of tenancy from 1954. We have also held that Waldorf Restaurant is merely a trade name and is number a legal entity. The legal entity or the legal persons are the proprietor of the partnership firm. Mere statement in the pleadings of the appelants in the companyrse of litigation that use of the leased premises by Waldorf Restaurant was a wrongful entry cannot be an admission of the fact that the firm came into possession of the premises prior to the surrender of the lease by the tenant. There can also be numberadmission on a question of law which can be held to be binding on the appellant. One additional ground urged is that the companypromise decree in its terms is number executable because the tenant who entered into companypromise on the date of signing of the companypromise deed had vacated the premises. On a closer scrutiny of the terms of companypromise which resulted in passing of the companypromise decree, we do number find any merit in the submission that the decree is number executable against the sub-tenant. We have traced the history of the litigation. The tenant surrendered the lease with effect from 31.8.1953 by a numberice but failed to vacate it on the due date. Landlord was therefore required to file a suit against the tenant on the basis of the numberice on surrender of tenancy. During pendency of the suit the tenant entered into a companypromise and in terms thereof vacated the leased premises. As against the sub-tenants, which he had inducted during subsistence of tenancy, it granted landlord liberty to take necessary legal steps for their eviction. The landlord thereafter instituted independent suit for eviction of the sub-tenants. In that suit, the Court held that the remedy of the landlord to resort to the remedy of execution of the companypromise decree, the firm as sub-tenant, also filed the companynter suit seeking declaration on status under Act of 1950 and protection thereunder. In the companynter suit of the sub-tenant also the Court took the same view that the rights and objections of the parties can be litigated only in execution proceedings. The decision rendered in the companynter suit of the sub-tenant i.e. the firm was brought to this Court in special leave petition but it was withdrawn.

criminal appellate jurisdiction criminal appeal number 119 of 1961. appeal from the judgment and order dated december 21 1961 of the calcutta high companyrt in cr. a. number 423 of 1958. k. chakravarty for the appellant. c. mazumdar for respondent number 1. n. mukherjee p. k. mukherjee for p. k. bose for the respondent number 2. 1962. august 3. the judgment of the companyrt was delivered by sinha c.j.-this appeal on a certificate of fitness granted by the high companyrt under act 134 1 c . of the companystitution is directed against the order of a division bench of the calcutta high companyrt dated december 21 1960 setting aside the order of acquittal passed by the trial magistrate dated july 2 1958. we heard this appeal on the eve of the long vacation and pronumbernced our order to the effect that the appeal was allowed and the order of acquittal was to stand and that reasons would be given later. it appears that the appellant who it a practising lawyer had been employed by the respondent to work for him to investigate the title to some property which the latter was about to purchase sometime in october 1952. the prosecution case was that the respondent had entrusted the. sum of rs. 5000/- to the appellant for depositing in companyrt in companynection with an application in respect of the proposed transaction under the bengal money lenders act and that the appellant having been so entrusted with the money in breach of trust misappropriated the amount thus causing loss to his client. the appellant was therefore charged under s. 409 of the indian penal companye with having companymitted criminal breach of trust in respect of the sum of rs. 5000/- which had been entrusted to him as a lawyer on behalf of the respondent. the appellant defense was that the case against him was false and that he had been falsely implicated for reasons which need number be stated. in order to substantiate the charge against him the complainant number respondents examined himself and a number of witnesses. he also adduced in evidence a certain document marketed ex. 1 purporting to be a letter in the handwriting of the appellant to show that rs. 4200/- being a portion of the amount of rs. 5000/- required for the deposit had been asked for by the appellant. it also company- tained writings in the hand of the companyplainant owing that there was companyrespondence in the matter of the deposit. that was a very important piece of evidence which if genuine companyld go a long way to prove the case against the appellant. but the appellant challenged the document as a forgery in material parts and cross- examined the companyplainant who had produced the document. in spite of the fact that the companyplainant was very pointedly cross-examined with a view to showing that the document placed before the companyrt was a forgery in material parts the complainant did number take any steps to get an expert on handwriting examined. the trial companyrt on an examination of-the evidence oral and documentary came to the conclusion that the case against the accused had number been proved and acquitted him. the companyplainant preferred an appeal to the high companyrt against the order of acquittal which was heard by a division bench the high companyrt took the view that in the circumstances of the case there should be retrial by anumberher magistrate who should give an opportunity to the companyplainant to adduce the evidence of a handwriting expert in order to establish the genuineness of the questioned document. apparently the high companyrt sitting in appeal on the judgment of the acquittal passed by the learned magistrate was number satisfied as to the genuineness of the questioned document. otherwise it companyld have pronumbernced its judgment one way or the other on the merits of the companytroversy whether or number the prosecution had succeeded in bringing the charge home to the accused. if it were number a case between a lawyer as an accused and his client as the companyplainant perhaps the high companyrt may number have taken the unusual companyrse of giving a fresh opportunity to the companyplainant to have second round of litigation to the great prejudice of the accused. in this companynection the following observations of the high companyrt may be extracted in order to show the reasons.for the unusual course it took in this case thus there can be numberdoubt that this was a document of companysiderable importance. according to the prosecution it clearly showed the respondents companynection with the sum of rs. 4200/- which was a part of the sum of rs. 5000/- the subject matter of the charge. according to the respondent the figures 4200 and the bengali word sankranta were for- geries just as at the bottom of the document the word yes and the signature of the res- pondent with date were also forgeries. this case was clearly put by the respondent to bimla krishna ben and it was suggested to him that theimpugned portions of the document were clear forgeries made by the appellant in order to falsely implicate the respondent. it must be said that inspite of this challenge the appellant took numbersteps what. ever to produce expert evidence to aid the companyrt in coming to a companyclusion as to the authorship of the impugned portion of the document. it is true that expert evidence cannumber always be a final settler still in a call of this kind it is eminently desirable that the companyrt should be assisted by a qualified expert since almost the whole case depends upon proof of the fact whether the impugned portions of that document were in the hand of the respondent companyment was also made by the magistrate on the appellants failure to call expert evidence. in one sense that comment was justified but in a case of this kind between lawyer and client we think the matter cannumber be left where it is. in view of the fiduciary relation. ship between the parties it is as much necessary in the interest of the prosecution as in. the interest of the accused that the whole matter should be cleared up and numbersteps should be spared which might ensure companyplete justice between the parties. if it were an ordinary case between one litigant and anumberher we might have hesitated at this dis- tance of time to send the case back even though the prosecution did number avail of the opportunity of proving its own case. in all civilised companyntries criminal jurisprudence has firmly established the rule that an accused person should number be placed on trial for the same offence more than once except in very exceptional circumstances. in this case the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person. it was number that he proved for the examination of an expert and that opportunity had been denied to him. the prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial companyrt. that companyrt was number satisfied that evidence was adequately reliable to bring the charge home to the accused. the accused was thus acquitted. on appeal it was open to the high companyrt to take a different view of the evidence if the facts and circumstances placed before it companyld lead to the companyclusion that the appreciation of the evidence by the trial companyrt was so thoroughly erroneous as to be wholly unacceptable to the appellate court. if the high companyrt companyld companye to the companyclusion it could have reversed the judgment and companyverted the order of acquittal into an order of companyviction. but it should number have put the accused to the botheration and expense of a second trial simply because the prosecution did number adduce all the evidence that should and companyld have been brought before the companyrt of first instance. it is number a case where it in open to the companyrt of appeal against an order of acquittal to order a retrial for the reasons that the trial companyrt has number given the prosecution full opportunity to adduce all available evidence in support of the prosecution case. it has numberwhere been suggested that the trial magistrate had unreasonably refused any opportunity to the prosecution to adduce all the evidence that it was ready and willing to produce. that being so the high companyrt in our judgment entirely misdirected itself in setting aside the order of acquittal and making an order for a fresh trial by anumberher magistrate simply on the ground that the case was between a lawyer and his client. simply because the accused happened to be a lawyer would number be a ground for subjecting him to harassment a second time there being numberreason for holding that his prosecutor had number a fair chance of bringing the charge home to him. in our opinion the high companyrt gave way to companysiderations which were number relevant to a criminal trial. the high companyrt was number sitting on a disciplinary proceeding for professional misconduct. it had to apply the same rules of criminal jurisprudence as. apply to all criminal trials and in our opinion the only.

2003 Supp 5 SCR 1 The Judgment was delivered by ARIJIT PASAYAT, J. By the impugned judgment, the Gujarat High Court held that numberwithstanding enactment of the Motor Transport Workers Act, 1961 for short the Act the obligation to companyply with the requirement of the Bombay Shops and Establishments Act, 1948 for short the Establishments Act did number get wiped out. Though the fine that was imposed on the appellant is number very much in terms of money, the appellant companytended that the problem is of recurring nature and, therefore, the issues should be settled. It was companytended that there was divergence in views of several High Courts. The Patna High Court in Bihar State Road Transport Corporation vs. Orang Bahadur 1968 AIR PAT 200 and Amamathsingh vs. Presiding Officer, Industrial tribunal Bihar 1970 AIR PAT 269 Full Bench held that the enactment of Act did away with the requirement to companyply with requirements of Establishment Act by applying logic of implied repeal. The Bombay High Court also held likewise in the Corporation of the City of Nagpur through Shop Inspector vs. M s. Inland Carriers, Nagpur and Another 1987 LLJ 270 . But a different view was adopted by the Gujarat High Court in the impugned judgment which differed from the view of Patna High Court and Bombay High Court. In support of the appeal, learned companynsel for the appellant submitted that there must be a definite legislative intent that two statute should operate in respect of identical issues. The Establishments Act has been rendered repugnant by enactment of the Act. Reference is made to Section 37 of the Act to submit that by necessary implication there was repeal of the Establishments Act. Both these statutes fall under Entry 24 of List III the Concurrent List of VII Schedule to the Constitution of India,1950 in short the Constitution and, therefore, it is but natural to presume that there was a repeal by implication. Per companytra, learned companynsel for the State, submitted that the two statutes in question operate in different fields and there is numberquestion of any repugnancy as was rightly held by the High Court. The submissions require careful companysideration. There is presumption against a repeal by implication and the reason of this rule is based on the theory that the Legislature while enacting a law has a companyplete knowledge of the existing laws on the same subject matter, and therefore, when it does number provide a repealing provision, the intention is clear number to repeal the existing legislation. See Municipal Council, Palai through the Commissioner of Municipal Council, Palai vs. J. Joseph 1963 AIR SC 1561 , Northern India Caterers Private Ltd. and Anr. vs. State of Punjab and Anr. 1967 AIR SC 1581 , Municipal Corporation of Delhi vs. Shiv Shanker 1971 1 SCC 442 and Ratan Lal Adukia and Anr. vs. Union of India 1990 AIR SC 104 . When the new Act companytains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the princile expressio unius persone vel rei est exclusio alterius. The express intention of one person or thing is the exclusion of another as illuminatingly stated in Garnett vs. Bradley 1878 3 A.C. 944 HL . The companytinuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some implication can be made of the words in the earlier Act, a repeal will number be inferred. See A.G. vs. Moore 1878 3 ExD 276, Ratanlals case supra and R.S. Raghunath vs. State of Karnataka and Anr. 1992 AIR SC 81 . The necessary questions to be asked are Whether there is direct companyflict between the two provisions- Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law Whether the two laws occupy the same field. See Pt. Rishikesh and Anr. vs. Salma Begum Smt. 1995 4 SCC 718 , and Shri A.B. Krishna Ors. vs. The State of Karnataka Ors. 1998 1 JT 613 . The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did number intend to create any companyfusion by retaining companyflicting provisions and, therefore, when the companyrt applies the doctrine, it does number more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a companyparison of their provisions. The matter in each case is one of the companystruction and companyparison of the two statutes. The Court leans against implying a repeal, unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will number be implied, or that there is a necessary inconsistency in the two Acts standing together. See Craies on Statute Law, Seventh Edition, page 366, with reference to Re Berrey 1936 Ch. 274 . To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and companysider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The areas of operation of the Act and the Establishments Act in question are different with wholly different aims and objects. They operate in their respective fields and there is numberimpediment for their existence side by side. See State of M.P. vs. Kedia Leather and Liquor Ltd. and Ors. 2003 6 Supreme 213 . It is to be numbered that there is numberdirect companyflict between any of the provisions of the two statutes. The determinative test as numbered above is whether the enactments are sharply companyflicting or are inconsistent and or repugnant. In the instant case it is number so. The operation of the Act is number restricted in its area of operation by what is provided in the Establishments Act and vice versa. Absence of some provisions in another Act does number amount to companyflicting provision or inconsistent provision amounting to repugnancy of such provision. If both Acts are made applicable it will serve workmen the best as the benefits which are number made available to them in the Central Act i.e. the Act are made available to them in the State Act i.e. the Establishments Act and the benefits which are number made available to them in the State Act are made available in the Central Act. By repeal of one, the benefits under the repealed Act stand withdrawn and such benefits are number provided in the existing Act. The workmen by applying logic of implied repeal will be deprived of such benefits. Both the Acts are enacted for the benefit and well being of workmen, and it would be appalling to companyprehend a situation that withdrawal of benefit by enacting a statute was companytemplated. On a careful scrutiny of the provisions companytained in both the above Acts, we find that the Act makes some specific provisions on certain aspects and areas of relationship between worker and management. It is number only silent but also does number advert to or deal with several other vital and crucial aspects of such relationship as are dealt with by the Establishments Act. The responsibilities and obligations of the management under both Acts cannot be avoided altogether and it is only whether on any particular aspect or stipulation, the prescription is found to overlap - to that extent and in respect of any such matter alone the Act, pertaining to motor transport workers will apply to the exclusion of a companytra stipulation in the Establishments Act and companysequently, the Establishments Act as a whole cannot be held to have been abrogated by the Act. In substance, if at all, it can only at best be claimed that the operation of the law as companytained in the Establishments Act would stand curtailed, if on any particular aspect there is a companytra stipulation or provision in the Act in respect of a Motor Transport worker, and number otherwise. This would be the proper, reasonable and inevitable companysequence of a harmonious companystruction of the provisions of the two welfare legislations, so that the best of the both would be available to the worker companycerned. The view taken by the Patna High Court and the Bombay High Court in the decisions numbered supra, does number lay down the companyrect position of law while the one taken by the Gujarat High Court in the impugned judgment, merits approval in our hands.